Water Security and the Public Trust Doctrine in South Africa

Abstract

This chapter provides broad insights into how different levels of government have attempted to advance water security in South Africa. It does this through a review of the historical and comparative developments of the reconstruction of the South African public trust doctrine in the water sector. It is premised on the increasing significance of the role of government in contributing to water security based on the doctrine of public trust. Reviewing the public trust doctrine is important for understanding the constitutional reasons behind the reconstruction of this doctrine in the South African water sector. The prominence of government’s role arose from the understanding that water services could not be fairly and efficaciously delivered through private ownership. This understanding was rooted in societal efforts intended to address complex historical issues related to inequitable access to water by the majority of South Africans. The chapter illustrates that the reconstruction of the public trust doctrine through transformative constitutionalism is somewhat strongly linked to perceived high levels of water insecurity in South Africa. The chapter calls for the expansion of the framing and application of property rights vis-à-vis the public trust doctrine in the water sector. It emphasizes the role of property rights in directing change and societal transformations. By exposing these insights, the constitutional development of the public trust doctrine is poised to take new direction in South Africa.