ater may be regarded as the quintessential public trust resource, an element that underpins the life-critical systems of nature’s, and hence humankind’s, very existence. There can also be no doubt that freshwater resources are ubiquitously in a precarious and worsening state. Thus, any “use” of water must be of such a nature that neither it, nor the ecosystems in which water is sustained, are diminished.
The essence of the public trust principles are further implicit in section 27 of the Act, where 27 speaks to the “need to redress the results of past racial and gender discrimination” while 27 requires “efficient and beneficial use [of water] in the public interest.” Both sections 3 and 27 constitute empowering provisions and must be heeded.
All water uses must, therefore, be considered in the context of the public trusteeship of South Africa’s water resources, and subject to the principles that underpin it. These principles delineate the legal guardrails of the fiduciary obligation conferred on the state to protect and preserve the nation’s water resources. This duty is dynamic, responsive and malleable to evolving circumstances, and provides a reparative framework accommodating contemporary equity needs.
The public trust was intended to be the very backbone of the Act and, to quote the late minister of water affairs, Kader Asmal: “… developing the government’s role as public trustee of water is not an overnight achievement, nor can it ever be said … to be a finished accomplishment.