Operationalising hybrid water law for historical justice

Abstract

Promoting equitable access to water and redressing the results of past discrimination are key considerations of the 1998 National Water Act (NWA), in line with South Africa’s Constitution. However, despite the legislation containing the necessary legal tools to achieve these stated goals, it has not yet made a substantial impact in delivering redress for past injustices in the allocation of water resources. Some of these tools remain unused or underused. New approaches are also possible within the existing legislative regime, such as ‘hybrid water law’ that combines elements of customary and statutory law. This provides a long overdue recognition of living customary water tenure that has governed self-supply by Africa’s rural majority since time immemorial.

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