M Ginster, C Gouws, CM Gouws, H Mäki, R Mathipa, S Motloung, M Nyandoro, JWN Tempelhoff, The...

The problem of irrigation from Lesotho Highlands

water in the Axle and Liebenbergsvlei river catchment,

Eastern Free State

Liebenbergsvlei River in April 2009. Photograph: Claudia Gouws

By

M Ginster, C Gouws, CM Gouws, H Mäki, R Mathipa, S Motloung, M Nyandoro, and

JWN Tempelhoff

Report 1/2009

Version 2.10.

Research Niche Area for the Cultural Dynamics of Water, North-West University, Vaal

Campus, Vanderbijlpark, South Africa.

2009.08.27.

2

Contents

The problem of irrigation from Lesotho Highlands water in the Axle and

Liebenbergsvlei river catchment, Eastern Free State ................................................... 1

Executive summary ............................................................................................................ 3

1. Introduction ................................................................................................................ 8

2. Objective of this study ......................................................................................... 12

3. Research strategy ................................................................................................... 12

4. Outline ......................................................................................................................... 13

5. Historical background: did the system go awry? ........................................... 13

6. The state of affairs currently ............................................................................ 26

7. Governance: between anarchism and lawlessness? ....................................... 29

8. Section 35 process: a solution? .......................................................................... 32

9. Farmers‟ frustrations with DWA ....................................................................... 37

10. Farmers‟ perspectives ........................................................................................ 40

11. Farming along the Liebenbergsvlei River ..................................................... 45

12. Irrigation ............................................................................................................... 49

13. Controversial issues: „Adding up the numbers‟ ........................................... 56

14. Reporting back to stakeholders ...................................................................... 62

15. Conclusion ............................................................................................................... 65

16. Recommendations ................................................................................................ 68

17 Postscript ...................................................................................................................... 71

Addendum 01. Section 35 Process: Application for the verification of

existing lawful water use ............................................................................................... 72

Addendum 02. Section 35 Process: Directive to stop/reduce abstraction

storage ................................................................................................................................ 73

Addendum 03. Section 35 Process: Notice to provide further information. 74

3

Executive summary

Since 2008 there has been increased media focus on the water security

situation of the Gauteng region in South Africa. Specific attention has been

given to the issue of unlawful water use which is taking place in the upper

reaches of the Vaal catchment, in parts of Mpumalanga, Gauteng and the Free

State Province. An issue of particular concern is the increasing extent to which

farmers are diverting water that has been transferred from Lesotho along the

Axle and Liebenbergsvlei Rivers. This transboundary water is specifically

intended to support the urban, mining and industrial developments of the

Gauteng province and surrounding areas. Representatives of the Department of

Water Affairs compare the water loss to unlawful irrigation as equivalent to the

yield of the entire water supply of the Lesotho Highlands Water Project Phase

1b investment (Phase 1b comprises the Mohale Dam and the associated water

transfer tunnel and pipeline to the Katse Dam). The most recent estimate made

by the water resource planners of the water use in the Upper Vaal region is that

about 174million m3/annum is unlawfully used for irrigation purposes. The water

planners have further concluded that these losses are a significant contributing

factor behind the precarious state of balance of the Vaal River water supply.

There is general consensus among experts that the current demand from the

Vaal system is exceeding its sustainable supply capability.

It appears that water can readily be extracted in excess of a farmer‟s lawful

water allocation along the Axle and Liebenbergsvlei rivers. The main reason for

this is that the river is in constant flood due to the vast quantities of water

transferred from the Lesotho Highlands Water Project to the Vaal Dam. Pump

stations are clearly evident along the river banks. A unique situation has thus arisen in the area – the availability of water is not a limiting factor for irrigation. There are no self-limiting controls due to the large excess of water that flows past river properties; farmers are able to abstract water at will for viable irrigation purposes. Other comprehensive irrigation operations in the

region are water limiting, i.e. at any one time there is only a specific quantity of

water available to support agricultural land under irrigation. Those situations

are much easier to control, because self-regulation by a community is an

important enforcement mechanism. This is because the community has a greater

4

interest in ensuring equitable benefit sharing of the available (scarce) water

between the different users.

Water is being used both lawfully and unlawfully. Not all unlawful water use is

along the Axle and Liebenbergsvlei rivers, but this is regarded as the region

most affected, primarily because of the abundant quantity of water transferred

through this region and the temptation to use as much and even more than is

necessary. There is also ample opportunity to abstract large quantities of water

unnoticed. All this presents a unique opportunity to study the attitude and

responses of the irrigation farmers operating in the area and the mixed

responses by the authorities, most notably the department of water affairs and

forestry (now the department of water affairs, or DWA) in dealing with the

issue. A conflict arises between water users and water use regulators to which

a number of secondary factors also contribute to the unfolding situation.

Interviews were conducted with farmers who pump water from the Axle and

Liebenbergsvlei rivers for irrigation purposes. Representatives of the DWA who

have responsibilities in this region; representatives from the Small Grains

Research Institute of the Agricultural Research Council (ARC); and others, have

been interviewed. The main objective was to better understand the water use in

this region and the main factors that contribute to the tension that has arisen

between the irrigation farmers and the authorities. The responses from the

different sector representatives were qualitatively analysed and suggested

solutions were then formulated for further discussion.

Most farmers were highly critical of the way in which the DWA has to date

responded to the issue. The following quotes extracted from the interviews

leave little doubt about where local farmers place the blame:

The apathy of DWA officials is discouraging; Lack of clarity on the part of the DWA about water rights causes

confusion in the market when it comes to fixing the price of land; Farmers are not informed about any actions taken by DWA; Communication with DWA is virtually impossible; The only way to get any answer from DWA is to make use of a lawyer and

that is expensive; The communication between DWA and the farmers leaves much to be

desired; The Department does not inform the farmers what exactly is needed; The problem is partly due to incompetence on the part of DWA officials; DWA does not seem to know what the problem really is; The officials cannot perform and they have no control over water use; DWA‟s ability to cope with the situation is questioned; The problem of water use is primarily caused by the inability of DWA to

implement its own policies; DWA does not recognise irrigation farmers and does not have a clear

irrigation policy;

5

There are farmers who have communicated with DWA six or seven times, without any success and then in desperation they go to an attorney to organise water rights; and

Water licensing has been under consideration by DWA for five years without any real progress being made locally.

In the list of responses a positive view towards the DWA was also expressed:

One farmer said that he had no problems with DWA and that he believed he would be able to get a new pivot if he wanted one.

Representatives of the DWA provided a more systematic and “technical”

response when they were interviewed. Being more cautious to criticise the local

water users, they were quick to emphasise the difficult challenge presented by

the efficient control of water use in the region within the ambit of the law. The

first problem they have is to determine whether a water use is in fact

legitimate, and then to regulate that use. The officials went to great lengths to

emphasise that they were indeed responding to the problem but that staff

shortages were hampering their efforts. Two solutions were highlighted as

being critical in addressing the problem:

A regulation forcing farmers to measure their water use; and

Continued use of sophisticated satellite imagery to identify unlawful water use in the catchment.

Key to understanding the dispute is the complex water registration, validation

and verification process as set out in the National Water Act, No. 36 of 1998.

Members of the research team visited the engineering consulting company of

Schoeman & Partners in Brits. They are water management consultants working

for DWA. One of the company‟s directors, Francois Joubert, provided a detailed

explanation of the process. The process began when a government notice was

gazetted in April 2000 requesting that all water users in the Upper Vaal should

register their water use. The general trend was for farmers to register

significantly larger quantities of water than they actually used. To acknowledge

the quantities of water registered, registration certificates were issued by the

department. Based on the information provided to them by the water users and

using additional information from surveys, such as satellite images, the

department prepared a pre-validation estimate of water use by farmers. A

distinction was made between what the department considered lawful water use

and the amount considered unlawful water use. In terms of the requirements of

Section 35 of the 1998 National Water Act the DWA issued notices to water

users to verify the pre-validation water use estimates determined by the

department. Various administrative processes followed, including requests for

additional information or directives if there had been no response to a notice.

Water users could also make representation to the authorities. Communication

6

challenges, mistrust, fear (of losing water entitlements) have all contributed to

long delays in finalising this process.

From the interviews it was apparent that misinformation, mistrust and poor

communication have contributed to this state of affairs. While the approach

taken to interviewing the farmers provided a useful dialogue of the farmers‟

views and attitudes to the water loss issue there were other aspects that were

not readily forthcoming. It is interesting that no farmer volunteered to

produce documentation that confirmed the lawfulness of his/her water use.

This is not to suggest that they were being untruthful. It just seemed in most

cases to be an issue that was better left alone.

There were frequent references to water licenses. According to the DWA

there are very few water users in the region who have applied for water licenses

as enabled through the National Water Act, No. 26 of 1998. Most of the lawful

water users are being determined through the complex validation and then a

specific verification process as set out in Section 35 of the 1998 National Water Act. The outcome of this process is a letter confirming the existing

lawful water use entitlement to a water user.

The payment for water remains a controversial subject. According to DWA no

farmer is paying for the use of water in this region, but if they are being

charged for anything it is for water resource management. This is a small

amount which is based on the initial amount of water registered.

For the most part, the DWA spoke in technical terms while the farmers spoke in

more general terms. This became a clear collision course, heading towards

misunderstanding, miscommunication, a lack of cooperation and a poor result.

Farmers like to talk but they generally do not like to share details about their

farming activities and the viability of their operations. It is presumably part of

their personal competitive advantage. They are quick to present the general

realities and the challenges of being a modern-day farmer. Concerns about the

following were readily voiced:

Rising input costs (fertiliser, diesel, seeds, etc.); Low prices for produce (in most cases they are price takers, they have

little influence on the price they receive, which fluctuates substantially); and

Risks associated with farming – drought, fire, stock theft, personal security, disease, finances and land restitution.

The DWA have clearly identified the problem of unlawful irrigation. It is a

prioritised challenge. Being accountable to ensure that the main economic hub

of the country (Gauteng and surroundings) receives the water requirements to

function is an onerous responsibility placed on the government‟s water

department. At a high-level it seems easy to discuss the need to „eliminate

unlawful water use‟, simply „because the water resource planning models indicate

7

that this issue is contributing to the imbalance of the Vaal River water supply

system‟. They lament the fact that these water losses can be compared in

severity to the collapse of the transfer tunnel between Mohale and Katse – to

the loss of the entire yield of the Mohale transfer scheme. If that were indeed

to happen no doubt emergency repairs would immediately be initiated. And yet

there is little or no urgency being shown to address the challenge of unlawful

irrigation. It is a subject that is easy to talk about. It focuses the mind. On

the regional level the realities are quite different.

There are only white farmers where the river runs. This point was clearly

emphasised by an emerging black farmer interviewed; he is farming in a nearby

district. Key impressions he shared were:

It is only the marginal farms (never the good ones) that are put up for sale for land reform purposes;

The pace of land reform is far too slow to achieve the target of 30 per cent black ownership by 2014, set by the ruling government; and

There is a growing realisation that there is a greater need for successful commercial black farmers than unsustainable emerging black farmers.

An interesting point was made by this farmer: in his view black farmers would not support the introduction of farm subsidies. Subsidies would benefit the established white farmers more than emerging black farmers.

Water use along the Axle and Liebenbergsvlei rivers remains a controversial

matter. While the DWA have usable regulations in place to address unlawful

water use, they are not really making much headway. The effectiveness of the

regulatory measures available to the DWA can be questioned. The farmers as

consumers of water, in turn, have articulated the problem from their

perspective. They are willing to once again start negotiating with the authorities

to find a solution to the problems in respect of an equitable arrangement. There

is awareness that agricultural water use needs to be governed in a responsible

manner to ensure that this scarce resource is utilised to the best possible

benefit of the entire region.

8

1. Introduction

In December 2008 the South African government approved in principle the

development of a further phase of the Lesotho Highlands Water Project, to the

tune of an estimated R7,3 billion. This decision to expand what has become one

of the major water projects on the African continent came within the first

decade after the first water from southern Africa‟s mountain Kingdom, Lesotho,

began to flow into the Vaal Dam.1 The motivation for this development, which

should be ready before 2020, is simple: it is essential to meet the water needs

for rapid population growth and economic development in South Africa‟s Gauteng

Province, one of the economic powerhouses of the continent. Strategic water

resource planners have been warning for a considerable time that South Africa

may in the years ahead be running out of sufficient water to keep abreast of

development. Particularly disconcerting is the fact that at present the country

is said to be going through a relatively „wet‟ phase. Climatologists maintain that

the country is currently in a 15-year cycle of good rains. However, should the

customary drought cycle set in once again, the country could face a serious

water crisis.2 Gauteng, whose water supply is subject to a complex set of

transfer schemes, could be extremely fragile under these conditions.

Looking at the problem through the lens of a large industrial water user sheds

some light on issues of security. South Africa‟s producer of petrol from coal,

Sasol, is dependent on receiving reliably about 4 per cent of the water it needs

from the large and strategically important Vaal River system supply capability.3

The DWA considers this water supply to the Secunda and Sasolburg operations

a strategic water use,4 one for which the full allocation is provided at a very

1 . W Hartley, “Cabinet approves R7,3bn water plan” in Business Day, 2008.12.05 at

http://www.businessday.co.za/Articles/Content.aspx?id=57560 (Accessed

2009.06.11).

2 . A-M Udrica, “Farmers „endangering SA‟s water security‟” in Cape Times, 2009.05.21, p. 7; Tempelhoff Oral Archive (TOA), Interview Mr Walther van der

Westhuizen (54), director of strategic infrastructure planning, Department of

water affairs and the environment, North-West University, Vanderbijlpark,

2009.05.21.

3 . South Africa, Department of Water Affairs and Forestry, Vaal River system:

large bulk water supply reconciliation strategy: first stage reconciliation (DWA,

Pretoria, 2006).

4 . Currently only one water user, Eskom, is classified as a strategic water user in

terms of the National water resources strategy. However, in terms of an

agreement with Sasol, water is supplied at the same level of assurance as would

http://www.businessday.co.za/Articles/Content.aspx?id=57560

9

high 99,5 per cent assurance of supply. This equates to an assurance (although

not contractually guaranteed) of the provision of water up to an extreme once in

200 year drought event.

The current supply and demand balance for the Vaal River system remains tight.

The system has benefited from good rains which have left most storage dams

close to full capacity. A prolonged drought (due to a natural cycle or climate

change induced) could rapidly change this balance resulting in unpopular water

restrictions to domestic and agricultural water users. The imbalance in the

system (i.e. when the current demand from the system, is greater than the

sustainable supply capability), is largely due to growing demand from domestic

users, large physical leakages occurring in municipal water supply infrastructure,

and what is thought to be vast quantities of unlawful irrigation that is taking

place in the upper reaches of the catchment.5

The key interventions to bring the system into balance have been identified, and

include a new storage dam in Lesotho, licensing and enforcement of water use,

conservation and demand management measures. The key challenge will be the

ability of the department to execute these initiatives to ensure a long-term,

equitable and sustainable supply to all lawful water users. Through collective

action and other means all water users must stay closely involved to ensure that

the re-balancing of the Vaal River system is realised.

A number of water-saving strategies have been contemplated by planners and

management teams in the country‟s water sector. According to Seef Rademeyer,

leader of a research project undertaken by the DWA6 to outline a management

strategy for the Vaal River catchment, irrigation farmers in the catchment have

a role to play. Between 1998 and 2005 irrigation activities in the Upper Vaal

River system (the area upstream of the Vaal Dam) had allegedly increased by

more than 100 per cent. Up to 2005 the three water catchment management

agencies (CMAs) in the region distributed about 1060 million m3/a. Of this

typically be the case for a strategic water user. Information: Walther van der

Westhuizen.

5 . In the latest literature, the estimate of unlawful extraction up to 2005 is

considered to have been 174million m3/annum. See S Rademeyer, T Coleman, P

Van Rooyen and W Wegelin, “Vaal River system: large bulk water supply

reconciliation strategy” in Civil Engineering, 17(5), June 2009, pp. 9, 11-13.

Nevertheless, there is reason for concern, in view of the anticipated water

shortages.

6 . Prior to April 2009 the government department of water affairs and forestry

(DWA) was responsible for the government‟s water governance. However, as a

result of a number of departmental, and ministerial changes, forestry now

resorts under the department of agriculture. Water, in turn, is now a separate

department, but falls under the ministry of water and environmental affairs.

Consequently, for the purposes of this discussion the department is now

referred to as the department of water affairs (DWA).

10

amount some 25 per cent (240 million m3/a) was thought to be consumed

illegally.7

For some time now there have been intermittent warnings from government. In

March 2008, the responsible ministry of water affairs announced that its

officials intended taking steps against the illegal irrigation activities of farmers

in the Vaal River system.8 Six months later DWA‟s director-general Pam Yako

reiterated her department‟s concern when she pointed out that irrigation

farmers annually extracted the equivalent of the yield from the Mohale Dam, a

major storage facility of the Lesotho Highlands Water Project.9 It was largely

water that had originally been earmarked for consumption by domestic and

industrial users in Gauteng. As far as DWA was concerned the farming sector

consumed 60 per cent of the available water supply of the country, but only

contributed 2 per cent of the GNP.10 To show that DWA was serious about

clamping down on illegal water use in the Vaal River catchment, a number of

areas in this catchment came under close scrutiny. In November 2008 the

department‟s elite policing unit, the Blue Scorpions, closed in on illegal water

from the Vaal River being used for diamond mining operations in the vicinity of

Douglas.11 The following month both the Green and Blue Scorpions, after an

inspection tour, issued warnings to farmers in the Kroonstad district. They had

allegedly illegally constructed large irrigation dams on their farms. These

structures prevented water from flowing into the Vaal River catchment.12 Even

in organised agriculture there was support for the DWA objective of clamping

down on illegal water use. In December 2008, Agri SA, one of the largest

organised structures of farmers‟ interests, indicated that they supported

7 . L van Vuuren, “Start saving or start paying, river studies warn” in Water Wheel, 7(3), May/June 2008, p. 15.

8 . N van Burick, “Kommer oor landbou se waterverbruik” in Landbouweekblad, 2008.03.28 at

http://152.111.1.45/argief/berigte/landbouweekblad/2008/03/28/LB/77/03.ht

ml (Accessed 2009.05.19).

9 . N van Burick, “Strenger optrede kom teen onwettige waterverbruik” in

Landbouweekblad, 2008.09.26 at


ml (Accessed 2009.05.19).

10 . Ibid.

11 . F Coetzee, “Minister boos oor water” in Volksblad, 2008.11.25 at

http://www.news24.com/Die_Volksblad/Nuus/0,,5-83_2432593,00.html

(Accessed 2009.05.19).

12 . T Geldenhuys, “Boere moet plan maak met damme” in Volksblad Kroonnuus, 2008.12.02 at http://www.news24.com/Die_Volksblad/Kroonnuus/0,,5-

2258_2436079,00.html (Accessed 2009.05.19).

http://152.111.1.45/argief/berigte/landbouweekblad/2008/03/28/LB/77/03.html




http://www.news24.com/Die_Volksblad/Nuus/0,,5-83_2432593,00.html

http://www.news24.com/Die_Volksblad/Kroonnuus/0,,5-2258_2436079,00.html

http://www.news24.com/Die_Volksblad/Kroonnuus/0,,5-2258_2436079,00.html

11

DWA‟s strategies to reduce water theft.13 It now appears as if after the

elections of April 2009, the new minister of water and environmental affairs,

Ms Bujelwa Sonjica, is determined, despite coming under fire,14 to take up the

matter of illegal water-use with significant ardour.15

„Water theft‟ has been a problem for some time. In 2005 Grain SA chairperson,

Bully Botma, went on record as saying that irrigation pivots had increased

substantially in recent years, more than often outside the existing regulations,

or without the necessary environmental impact assessments being made. Actions

of this nature were in contravention of the National Water Act, 36 of 1998, and

transgressions of the act could see farmers paying significant fines.16 The „prime

culprits‟ as far as DWA was concerned, were still sitting pretty. They were

farmers in the Eastern Free State who were said to be illegally extracting

water from the Liebenbergsvlei River – the conduit channelling water from the

Lesotho Highlands Water Project (LHWP) to South Africa‟s Vaal Dam.17 What is

more, these farmers had apparently been at it for more than a decade.

13 . Anon., “‟Gebruik water met sorg‟” in Landbouweekblad, 2008.12.01 at

http://www.landbou.com/LandbouWeekblad/Nuus/0,,1294-

1295_2435219,00.html (Accessed 2009.06.16).

14 . H Duvenhage, “Minister geroskam ná haar aantygings oor boere, water” in Beeld, 2009.06.26 at

http://152.111.1.88/argief/berigte/beeld/2009/06/26/B1/20/hdboerewater_16

45-B2-02.html (Accessed 2009.07.07); H Duvenhage, “Minister stook kwaad met

boere-aantygings” in Beeld, 2009.06.26 at


45.html (Accessed 2009.07.07).

15 . A Isaacs, “Minister wil boere straf wat water mors” in Beeld, 2009.06.24 at

http://152.111.1.88/argief/berigte/beeld/2009/06/24/B1/2/polabh2o.html

(Accessed 2009.07.07).

16 . Anon., “Pasop vir onwettig waterverbruik” in Landbouweekblad, 2005.03.11 at


1295_1671422,00.html (Accessed 2009.05.16).

17 . N van Burick, “Strenger optrede kom teen onwettige waterverbruik” in

Landbouweekblad, 2008.09.26 at


ml (Accessed 2009.05.19); E Tempelhoff, “Meer slaankrag vir Blou, Groen

skerpioene: omgewingshowe kom dalk terug” in Volksblad, 2009.05.20 at

http://152.111.11.6/argief/berigte/volksblad/2009/05/21/VB/6/etskerpioene_1

520.html (Accessed 2009.05.24).

http://www.landbou.com/LandbouWeekblad/Nuus/0,,1294-1295_2435219,00.html


http://152.111.1.88/argief/berigte/beeld/2009/06/26/B1/20/hdboerewater_1645-B2-02.html


http://152.111.1.88/argief/berigte/beeld/2009/06/26/B1/20/hdboerewater_1645.html


http://152.111.1.88/argief/berigte/beeld/2009/06/24/B1/2/polabh2o.html





http://152.111.11.6/argief/berigte/volksblad/2009/05/21/VB/6/etskerpioene_1520.html


12

2. Objective of this study

Explaining how this complex state of affairs arose, forms part of the objective

of this study. However, it is necessary to look at the matter from more than one

perspective. It makes little sense to merely assess the matter from the

perspective of the government and the state departments under its control. For

the purposes of this study a qualitative transdisciplinary project was launched

by a group of researchers at North-West University‟s Research Niche Area for

the Cultural Dynamics of Water.

Working from a given set of circumstances, informed by the media and

discussions at a variety of forums in recent times, the objective in the

execution of this project has been to give attention to some qualitative factors

that shape the general discourse on the issue of the „illegal‟ consumption of a

finite natural resource emanating from the Lesotho Highlands.

3. Research strategy

The project was launched informally in January-February 2009, when two

researchers of the Research Niche Area for the Cultural Dynamics of Water,18

accompanied by a research geologist,19 conducted fieldwork along the Axle20 and

Liebenbergsvlei rivers in the Eastern Free State area between the urban

settlements of Clarens in the south and Frankfort in the north. After the

fieldwork a number of discussions took place between postgraduate students

working in the research group. Eventually it was agreed to investigate the issue

of irrigation along the Liebenbergsvlei River, and to adopt this as one of the

scheduled research projects for 2009 on water consumption in the Upper Vaal

River catchment.

A comprehensive spectrum of people was targeted for interviews. There were

deliberations with officials and representatives of DWA; the Small Grain

Research Institute in Bethlehem; Agri SA; National African Farmers‟ Union

(NAFU); Free State Agriculture; the South African Institute of Civil Engineers;

as well as private sector consulting research firms, working in the agricultural

sector.

18 . Mr Martin Ginster and Prof. Johann Tempelhoff.

19 . Dr Ed Retief.

20 . In some quarters the Axle River (in English) is referred to as the Ash River.

This appears to be incorrect. See P Raper, Dictionary of South African place names, (Lowry Books, Johannesburg, 1987), p. 39. Also see P Raper, Dictionary of South African place names, ([Second edition], Jonathan Ball, Johannesburg and

Cape Town, 2004), p. 15. For a humorous discussion of the issue see S Dunkley,

“The diaries of a Village Idiot” at

http://thediariesofavillageidiot.blogspot.com/2009/01/clarens.htmlb (Accessed

2009.07.08)

http://thediariesofavillageidiot.blogspot.com/2009/01/clarens.htmlb

13

Interviews were scheduled. Then, between 28 April and 1 May 2009 a group of

eight researchers, working from a guest lodge outside Reitz, visited various

places along the Liebenbergsvlei River catchment, conducting interviews with

farmers and people with considerable local knowledge. Internally the

researchers held a conference in which they outlined their specific fields of

interest in the project. Follow-up discussions were undertaken. More ideas were

exchanged internally. There were also group meetings with officials of the

department of water affairs, specialists in the private sector conducting

research in the area, as well as further telephone interviews with local farmers.

4. Outline

In the following discussion, attention will be given to a historical outline of the

evolution of irrigation activities along the Liebenbergsvlei River, since the

1970s. In particular the focus will be on the manner in which DWA interacted

with the local farming community and initiated plans to oversee the management

of water flowing down the river from Lesotho to the Vaal Dam.

Then attention shifts to the current state of affairs in which irrigation farmers

have come under fire for allegedly unlawfully using water that was originally

provided specifically for domestic and industrial consumers in Gauteng. The

question is asked: are we dealing here with anarchy or lawlessness? It is

suggested that clearly, we have here an issue of governance that needs to be

considered in a responsible manner – and from a number of perspectives.

Section 35 in the National Water Act, 36 of 1998 is considered as a potential

solution to what appears to be an administrative problem at present. It is

discussed from the perspective of the procedures water users have to follow to

confirm the legality (lawfulness) of their water use. This is the first step in the

compulsory licensing process.

Working from the basis of the discussions held with the farmers, a qualitative

assessment is provided on how they see themselves: as operators in a highly

competitive industrial sector; their relationship with DWA; their role as

irrigation farmers; and the issue of Land Redistribution for Agricultural

Development (LRAD).

Finally there is a discussion of some issues in respect of irrigation and its

management by DWA in the Liebenbergsvlei River catchment.

5. Historical background: did the system go awry?

In 1970 the former department of water affairs issued notices placing

restrictions on the use of water in the Upper Vaal River catchment. They first

14

outlined the Vaal Dam catchment as a government water control area.21 The

second notice placed restrictions on the construction of storage dams in the

catchment and also the extraction of water from the public streams in the

catchment managed by the department.22 These restrictions were of a

preliminary nature. The state did not determine the final rights.23 The measure

was introduced at a time when engineers were predicting a significant shortfall

in the water supply of the former Witwatersrand (a large portion of what

currently constitutes the Gauteng Province).24 In an effort to cope with a

potential shortfall the department resorted to seeking alternatives, such as the

Thukela Transfer scheme.25 This major engineering initiative created a water

supply for the Eastern Highveld from a river source that passed through the

Drakensberg escarpment before flowing into the Indian Ocean. Development in

what was then the Witwatersrand region of South Africa, was taking place at a

rapid rate and it was essential for the authorities to secure an even greater

long-term water supply.26 In this respect what was later to become known as the

Lesotho Highlands Water Project had a major role to play.

The second notice of 1970 informed all those farming in the Upper Vaal River

region that they could continue with their current irrigation activities. This was

henceforth to be considered the „legal use‟. In cases where farmers had not

done any irrigation prior to the regulation, they were entitled to install

equipment making provision for a maximum of 21,4 ha of agricultural land under

irrigation with a maximum water consumption rate of 6100 m3 per hectare per

annum (m3/ha/a). Even now, experts in the field consider an allocation of this

nature a sound estimate for effective water use under irrigation. However, it is

accepted that it may be too limited for double cropping.27

In 1986 the Lesotho Highlands Water Project (LHWP) was given the green light

after the governments of South Africa and Lesotho concluded a treaty which

21 . Government Notice 181 of 10 July 1970 in Government Gazette of the Republic of South Africa, No. 2750, 1970.07.10, p. 3.

22 . Government Notice 1187 of 24 July 1970 in Government Gazette of the Republic of South Africa, No. 2759, 1970.07.24, pp. 18-20.

23 . DWB BO210/2, September 1994. Aanhangsel A. Notule: Die eerste adviserende

komitee vergadering gehou te Vaaldam op 19 Junie 1991, p. 3.

24 . TOA, Interview: Walther van der Westhuizen (54), Director Strategic asset

management of the department of water affairs and the environment (DWA),

NWU, Vaal, 2009.05.21.

25 . R Meissner, The transnational role and involvement of interest groups in water

politics: a comparative analysis (D. Phil, International Politics, University of

Pretoria, 2004), p. 201.

26 . L van Vuuren, “Thukela-Vaal transfer scheme: feeding the hungry heartland” in

The Water Wheel, November/December 2008, pp. 16-21.

27 . TOA, Interview, F Joubert (43), (GIS expert on Liebenbergsvlei River water),

Schoeman & Vennote, consulting engineers to the DWA, Brits, 2009.05.12.

15

made provision for the development of the scheme. Then a complex process of

consultation started between DWA and stakeholders. From the available

documentation it is evident that there was also considerable negotiation with

farmers. The local impact of the LHWP was the subject of a number of meetings

between the department and riparian land owners in the Eastern Free State

along the Axle and the Liebenbergsvlei rivers. On 22 February 1991 a meeting

was held at DWA‟s headquarters in Pretoria. It was attended by a number of

departmental officials, as well as Messrs W du Randt, AJ de Villiers, PF Naudé

and CD Meiring (representatives of riparian land owners along the

Liebenbergsvlei River) and Messrs CM van der Merwe and RJ van Rensburg

(members of the Vaal Dam advisory committee).28

Figure 1 The Katse Dam in Lesotho. Photograph: Martin Ginster, 2009.07.11

At the time, it was explained that the perennial stream flow of the

Liebenbergsvlei River was set to increase drastically. What was scheduled to

begin in 1996 as a flow of 18 cubic metres per second (m3/s) would become

28 . Aanhangsel A. Notule van die vergadering, insake die invloed van die Lesotho-

Hoogland waterprojek op oewerplase in die Oos-Vrystaat langs die As- en

Liebenbergsvleiriviere, soos gehou op 22 Februarie 1991, Department waterwese,

Residensiegebou, Schoemanstraat, Pretoria, p. 1. In BO210/2, September 1994.

Departement van waterwese en bosbou, Subdirektoraat: watertoedeling, As-

Liebenbergsvleirivier Volume 1. Hoofverslag en Aanhangsels A tot E. (Schoeman

en Vennote, Brits).

16

70m3/s by 2020.29 A number of impact studies were being conducted. Of

relevance to the riparian property owners along the Axle and Liebenbergsvlei

rivers were investigations that studied:

a) The negative effect of the project on the natural flow of the rivers;

b) The loss of agricultural land, as a result of the flooding of certain

riparian properties by high water levels in streamflows; and

c) The potentially negative effects if access to farms was reduced by the

river constantly in a state of flooding.30

The department indicated that it would make a thorough investigation of the

issue of agricultural land affected by the increased stream flow of the river. In

cases where property owners were affected they would be compensated by the

department.31 Private valuators were to be appointed to determine the loss of

land and provide estimates, against market value rather than use value.32

Provision had also been made to reward property owners whose ready access to

their farms was diminished by the increased river flow.33 It was readily

accepted that a major problem associated with a deepening river bed in the face

of the strong stream flow would be thoroughly researched. Where possible, the

matter of erosion was to be addressed.34 At the time of the first meeting with

the farmers, Mr JJ Wessels, a senior official of DWA, explained that the

intention of the department was to ensure that existing irrigation farmers

would not be in a weaker position than they were before the introduction of the

LHWP.35

Subsequently an advisory committee was formed, consisting of a number of

DWA officials, consulting engineers and representative riparian property owners

of the Axle and Liebenbergsvlei rivers. At the first meeting of this committee,

29 . Departement waterwese en bosbou (DWB) BO210/2, September 1994.

Aanhangsel A. Notule van die vergadering, insake die invloed van die Lesotho-



Residensiegebou, Schoemanstraat, Pretoria, p. 2.

30 . Ibid., p. 2.

31 . Ibid., pp. 2-3.

32 . Ibid., p. 3.

33 . Ibid., p. 3.

34 . Ibid., p. 3.

35 . Aanhangsel A. Notule van die vergadering, insake die invloed van die Lesotho-



Residensiegebou, Schoemanstraat, Pretoria, p. 4. In BO210/2, September 1994.

Departement van waterwese en bosbou, Subdirektoraat: watertoedeling, As-

Liebenbergsvleirivier Volume 1. Hoofverslag en Aanhangsels A tot E. (Schoeman

en Vennote, Brits).

17

held on 19 June 1991, Mr CJ Kriek of DWA explained that the committee‟s

objective was to move away from the old one-sided approach that had normally

dealt with water shortages in times of drought by simply announcing that water

restrictions were to be imposed. In future, decisions to introduce water

restrictions would only be taken after due consultation with the committee.36

Members of the advisory committee were informed that the department had

also appointed the consulting engineers‟ firm of Schoeman & Vennote to conduct

a detailed survey of the Axle and Liebenbergsvlei river region.37 The consultants

had their work cut out for them. They were to collect dedicated data on a

number of crucial details of relevance to land use and water extraction. These

included:

A complete set of aerial photographs of the region under investigation;

Dedicated information from data at the office of the Surveyor General

stipulating the status of properties on the waterfront in 1985/86. This

information was to be updated with data collection by means of individual

visits to farms. A thorough investigation into all the deeds of riparian

properties in the region was also to be undertaken;

A thorough survey of the boundaries of all properties;

Detailed data on the surface areas of all existing irrigation activities on

the properties at the time;

A record of information of all waterworks on riparian properties. This

included data about pumps and weirs. Fieldworkers had to record the

capacity of all pumps, as well as that of all existing dams; and

A file on each property containing all the relevant data. The file and all

its documents were to be submitted to each of the respective property

owners for approval.38

The comprehensive survey formed part of a strategy by DWA to accurately

determine the water rights of each property owner. As pointed out above, the

1970 proclamation making provision for a government water control area in the

Vaal Dam catchment was accompanied by a set of preliminary restrictions on

water-use. The new arrangement introduced by DWA was intended to give

dedicated attention to the rights of each and every riparian property owner.39

Ultimately, the idea was to work out a system of water demand management in

which attention could also be given to the requirements of irrigation farmers.



37 . Ibid., p. 2.

38 . Ibid., p. 2.

39 . Ibid., p. 3.

18

The advisory committee was constantly informed on the progress being made on

the collection of data. Moreover, members of the committee even discussed

strategies aimed at managing effective water extraction.40 By November 1991,

the consulting engineers informed the committee that their survey was running

according to schedule. It was anticipated that their report would be ready by

June-July 1992.41 There were apparently no further meetings of the advisory

committee, although the meetings‟ minutes noted that the next meeting was

scheduled for February 1992.42

Figure 2 In some parts the Liebenbergsvlei River flows in the typical shape of an

Oxbow. Photograph: Johann Tempelhoff 2009.01 31

We do know that DWA officials, at a public meeting, acknowledged that all

catchment management areas could not be administrated by the department in a

uniform manner. Neither could they be managed comprehensively. Consequently,

it was explained that in view of the anticipated addition of new water supplies

40 . Ibid., p. 3.

40 . Ibid., pp. 3-4; DWB BO210/2, September 1994. Notule van die adviserende

komitee vergadering gehou te Vaaldam op 2 Oktober 1991, pp. 1-2.

41 . DWB BO210/2, September 1994. Aanhangsel A. Notule: Notule van „n

adviserende komitee vergadering gehou te Vaaldam op 28 November 1991, p. 2.

42 . No more information is disclosed in DWB BO210/2, September 1994 on meetings

of the advisory committee.

19

from the LHWP, it had become necessary to contemplate alternative methods of

management.43

Considered in retrospect, it could perhaps be argued that there were not enough

consultation meetings with the affected riparian farming fraternity along the

Axle and Liebenbergsvlei rivers. There is however evidence that DWA, in

concert with the consulting engineers, had kept to its original undertaking of

working out viable quantified water extraction rates in the catchment.44 In the

course of the advisory committee meetings of 1991, there were indications that

some of the assumptions of DWA were unacceptable to representatives of

farming interests.45 On 4 February 1991 a farmers‟ day was held in the Eastern

Free State where officials discussed with farmers the use of irrigation for

intensive agriculture. In particular, attention was given to the use of water from

the LHWP. At the time, engineers warned farmers that their irrigation plans

should not rely on the new water supply coming from Lesotho.46

In May 1993 the minister of water affairs, JA van Wyk, issued a government

notice which retracted the provisions of an earlier notice, No. 1187 of 24 July

1970, in respect of

the piece of land in the Vaal Dam catchment government water control

area which is riparian to the Axle River and the Liebenbergsvlei River and

the Wilge River up to the point where the Wilge flows into the Vaal Dam. 47



44 . See DWB BO210/2, September 1994. Aanhangsel C A Louw and J Kleynhans,

“Beperkings op die ontrekkingstempo langs die Vaalrivier” (Streeksingenieur

Transvaalstreek, Besproeiingsingenieurswese, 1991.10.01; EPJ Kleynhans,”Verslag

oor die bepaling van „n geskikte pomptempo vir die Vaalrivier opvanggebied 1991

(Departement Landbou-ontwikkeling. Streeksingenieur Transvaalstreek,

November 1991); and B0210/1, Julie 1991. Verslag aangaande ontrekkingstempo‟s

uit openbare strome.

45 . DWB BO210/2, September 1994. Aanhangsel A. Notule van „n adviserende

komitee vergadering gehou te Vaaldam op 2 Oktober 1991, pp. 1-2.

46 . DWB BO210/2, September 1994. As- Liebenbergsvleirivier Volume 1.

Hoofverslag and Aanhangsels A tot E, p. 4

47 . Government Notice No. 764 of 7 May 1993, Vaaldam catchment government

water control area, in so far as it concerns specific stretches of the Orange

Free State: withdrawal in terms of Section 62 (2B) (e) (ii) of the Water Act, 1956, of Government Notice No. 1187 of 24 July 1970 in respect of a certain

category of pieces of land in Government Gazette of the Republic of South Africa, No. 14767, 1993.05.07 at

http://www.puk.ac.za:2111/WebZ/FETCH?sessionid=01-59441-

386729291&recno=4&resultset=1&format=F&next=html/t2/full.html&bad=html/

t2/error/badfetch.html&&entitytoprecno=4&entitycurrecno=4 (Accessed

2009.05.26).

http://www.puk.ac.za:2111/WebZ/FETCH?sessionid=01-59441-386729291&recno=4&resultset=1&format=F&next=html/t2/full.html&bad=html/t2/error/badfetch.html&&entitytoprecno=4&entitycurrecno=4



20

It was determined that as of 7 May 1993:

No water from the stretches concerned of the said public streams may be

construed, altered or enlarged on any of the relative pieces of land and

that no further irrigation development may be undertaken on the pieces of

land concerned on the authority of a permission issued by me (the

minister) in terms of section 62(2B) of 62 (21) (a) (i) of the said Act.48

Arrangements of this nature were partially as a consequence of drought

conditions. In years of normal rainfall the authorities did not bother to check up

too closely on the water consumption patterns of irrigation farmers. However, if

and when drought conditions set in, water conservation was uppermost in the

minds of DWA officials. This tendency was more than evident in the drought

conditions of 1983-88 and 1993-95. It was in this period that the first major

shifts in the direction of water demand management (WDM)49 strategies were

applied in the South African water sector.

More important is the fact that in preparation of the advent of LHWP water

flowing down to the Vaal Dam, DWA had to make arrangements for the

effective management of the supply of water from Lesotho intended for Rand

Water‟s service distribution area. The proclamation of 7 May 1993 also marked

the start of plans by DWA to implement a ban on further use of the Axle and

Liebenbergsvlei rivers for irrigation water until such time as applications for

water rights in terms of Article 62(2F) of the Water Act, No. 54 of 1956 had

been processed.50 The manner in which the farming community responded to

DWA‟s warnings, is evident from a rumour that began to circulate. In June 1994

a report appeared in Landbouweekblad, in which the Eastern Free State Fruit

Growers‟ Association let it be known that they were concerned about the state

of affairs. Apple farming had started making significant headway in the region in

48 . Ibid.

49 . Water demand management (WDM) is a strategy in integrated water resource

management that was introduced to South Africa in the late 1980s. The

objective is to manage water in such a way that consumers are disciplined by

demand and supply so that they, of their own accord resort to saving water. For

example, stringent water restriction, are not considered to be a solution.

Instead, it should be an inclination that is a cultivated conservation

consciousness on the side of water consumers. WDM also has the objective to

refrain from summarily starting new water schemes to provide more water. For

more on this strategy, as applied by the water utility Rand Water, see JWN

Tempelhoff, “From water restrictions to water demand management: Rand

Water and water shortages on the South African landscape (1983-2003)” in PS

Juuti, TS Katko and HS Vuorinen (eds), Environmental history of water – global views on community water supply and sanitation, (IWA Publishing, London, 2007),

pp. 531-562.

50 . Copy of press release, Department of water affairs, “Vaaldam: gebruik van

Lesothowater gevries, 10 Mei 1993”.

21

1990.51 The department of water affairs, the farmers now claimed, was trying to

limit their supply of water at a time when farmers were seeking alternative

avenues for crop diversification.52

The 1993-95 drought conditions coincided with the April-May 1994 political

transition of the South African government to a non-racial democratic

dispensation. Along with this came a vast array of complex government

departmental changes, policy shifts and interactions between civil society and

state machinery. Added to that the new government had to deal with what was

the largest transnational water scheme in the country‟s history. The LHWP was

scheduled to come into operation in the not too distant future. The first

interaction with the farmers was a basic procedural formality under drought

conditions. In May 1995 the minister of water affairs and forestry, Prof. K

Asmal, issued a notice placing a limitation on the pumping of water from the Vaal

River system. Irrigation farmers, inter alia along the Liebenbergsvlei River, were

only allowed to extract water between 06h00 on Tuesday to 06h00 on Friday.53

Everyone seemed to respond favourably to this regulation. Meanwhile, country

roads were being upgraded and sturdy bridges being constructed to cross the

Liebenbergsvlei River at various points in the region between Bethlehem and

Frankfort in the Eastern Free State. Farmers, taking note of the developments,

responded in a positive manner by innovatively expanding on some of their

irrigation operations.

Then, in March 1996, the minister prohibited alterations and/or the

enlargement of storage dams in the catchment of the Vaal Dam. The

Liebenbergsvlei River area, along with that of the Vaal, Wilge, Klip and

Watervals were singled out as the targeted areas where the department was

intent on keeping a close watch on the use of river water for irrigation.54 Two

51 . J le Roux, “Bylae: plaagbestryding by vrugte – blink toekoms vir nuwe

appelstreek” in Landbouweekblad, 1999.05.29 at

http://152.111.1.45/argief/berigte/landbouweekblad/1999/05/28/3/2.html

(Accessed 2009.06.16).

52 . Anon., “Watertwis kan vrugteplan in Oos-Vrystaat kelder” in Landbouweekblad, 1993.06.11.

53 . Notice 653 of 1995.05.05, Notice in terms of Section 9a of the Water Act,

1956: curtailment of the abstraction of public water from the Vaal River system

in Government Gazette of the Republic of South Africa, 1995.05.05, 16369(), pp.

24-27.

54 . Government Notice 369 of 8 March 1996, Vaal Dam catchment government

control area: prohibition on the construction, alteration or enlargement of

storage dams in certain public streams in terms of section 62 of the Water Act

1956, (Act No. 54 of 1956); amendment of permission published in terms of

section 62 (2B) f the said Act by Government Notice No. 1187 of 24 July 1970 in

Government Gazette of the Republic of South Africa, 1996.03.08 at


386729291&recno=8&resultset=1&format=F&next=html/t2/full.html&bad=html/

http://152.111.1.45/argief/berigte/landbouweekblad/1999/05/28/3/2.html



22

months later, on 27 May 1996, the firm of Naudés Attorneys, of Bloemfontein,

on behalf of a client, submitted documentation in the Orange Free State Water

Court to the effect that in terms of section 40(a) (i) and section 40 (c) of the

Water Act, No. 54 of 1956, and alternatively in terms of section 40 (j), read in

conjunction with 62 (2D) (c), it was argued that

The property known as Geluk 798, District of Reitz ... is not situated

within the Vaaldam catchment government water control area and that the

Applicant is entitled to exercise the water rights of the said property

free from any restrictions arising from the declaration of the said

Government Water Control area as declared in Government Notice No.

2750 dated 10 July 1970, and section 62 of the Water Act, No. 54 of

1956.55

This legal issue created an atmosphere that was counter-productive to attempts

by DWA to oversee the manner in which farmers conducted irrigation activities

from the LHWP water in the Axle and Liebenbergsvlei rivers. Basically the

department wanted irrigation farmers to conform to the regulation of 1970

allowing them only 21 ha of land under irrigation.

Legally, the matter took a different turn. In the judgement made in the Free

State division of the water court on the case GW Smuts versus the Minister of Water Affairs, in 1996, it was argued that the Liebenbergsvlei was not a

tributary of the Vaal River, but instead a tributary of the Wilge River.56

There is general consensus amongst experts in the field that the „tributary of

the tributary‟-case marked a watershed.57 It was as if DWA had been

momentarily stunned. In an effort to stem the tide of opposition against the

department‟s management of the water supply in the Liebenbergsvlei River,

DWA now resorted to requiring specific details about the irrigation activities of

the farmers along the river. Part of the action of the farmers was to make use

t2/error/badfetch.html&&entitytoprecno=8&entitycurrecno=8 (Accessed

2009.05.26).

55 . Case No. 4/96 in the Orange Free State Water Court. Application of the

Transitional Council Reitz/Petsana, Applicant, and the Minister of Water Affairs

and Forestry and riparian owners on the Liebenbergsvlei, Bloemfontein,

1996.05.27, in Government Gazette, No. 17245, 1996.06.14 at


2089462394&recno=2&resultset=2&format=F&next=html/t2/full.html&bad=htm

l/t2/error/badfetch.html&&entitytoprecno=2&entitycurrecno=2 (Accessed

2009.05.26).

56 . See Smuts v Minister of Water Affairs and Forestry 1996 Uys WLC 383 O.

Judgement 1996.11.29 in M Uys, Water Law of South Africa (Water Research

Commission Report KV203/08, Pretoria, March 2008), p. 191.

57 . TOA, Interview: F Joubert (43), (GIS expert on Liebenbergsvlei River water),

Schoeman & Vennote, consulting engineers to the DWA, Brits, 2009.05.12;

Further telephone interview with F Joubert, on 2009.06.15.




23

of Section 9b of the Water Act of 1956, which confined private water storage

facilities to a maximum of 250 000 m3 storage and an abstraction rate of 110ℓ

per second. That measurement was considered legitimate. It was also used to

determine the limit of what could be lawful water use. This was about five times

more than the new departmental regulation permitted.58

Figure 3 A Google Earth view of irrigation activities along the Wilge River.

Photograph Google Earth – Accessed January 2009.

Then, on 18 September 1998, the minister of water affairs and forestry issued

two notices. The first, Notice No. 1175 of 18 September 199859 stipulated:

no water work in which more than 50 000 cubic metres of public water can

be impounded or stored or with which more than 10 litres of public water

per second can be abstracted or diverted on a property contemplated in



59 . Notice No. 1175 of 18 September 1998. Catchment of the Vaal Dam: Amendment

of the limits laid down by Section 9B (1) (a) of the Water Act, 1956, in regard to

the impoundment, storage abstraction or diversion of water works, in

Government Gazette of the Republic of South Africa, No. 19245, 1998.09.18 at


1029476500&recno=1&resultset=10&format=F&next=html/t2/full.html&bad=htm

l/t2/error/badfetch.html&&entitytoprecno=1&entitycurrecno=1 (Accessed

2009.06.16).




24

the said section 9B (1) (a), may be constructed, altered or enlarged in the

intended public streams, except on the authority of a permit issued by the

minister.60

Another proclamation, No. 1176 of 18 September 1998, issued on the same day,61

stated that private water users were now confined to a maximum storage

facility of 50 000 m3. Furthermore, it was required of farmers, in terms of the

1956 legislation to apply for a permit, allowing them to extract water in terms

of the 1956 legislation. Many users had already applied for permits.

Legally the state of affairs, before and after the proclamations 1175 and 1176

of 18 September was as follows:

Table 1 Legal impoundments, storage and abstraction from the Axle- and

Liebenbergsvlei River before and on 18 September 199862

Date Impoundment & Storage63 Abstraction64

Before 18

Sep. 1998

No water work in which more than

250 000 cubic metres of public

water can be stored on a property

may be constructed, altered or

enlarged, except on the authority

of a permit.

No water work with which more than 110

litres of public water per second can be

abstracted or diverted on a property may

be constructed, altered or enlarged,

except on the authority of a permit.

After 18

Sep. 1998

No water work in which more than

50 000 cubic metres of public

water can be stored on a property

may be constructed, altered or

enlarged, except on the authority

of a permit.

No water work may abstract or divert

water on a property without a permit.

60 . Email disclosure F Joubert (43), Schoeman & Vennote, Pretoria – JWN

Tempelhoff, 2009.06.15.

61 . Notice No. 1176 of 18 September 1998. Restrictions on the abstraction of water

emanating from the Lesotho Highlands Water Project from the Axle River, the

Liebenbergsvlei River and the Wilge River in terms of Section 56A(1) of the

Water Act, 1956 in Government Gazette of the Republic of South Africa, No

19245, 1998.09.18 at http://www.puk.ac.za:2111/WebZ/FETCH?sessionid=01-

40522-

374301789&recno=27&resultset=2&format=F&next=html/t2/full.html&bad=html

/t2/error/badfetch.html&&entitytoprecno=27&entitycurrecno=27 (Accessed

2009.06.15).



63 . Provided the property has irrigable land to justify such a water work(s).

64 . Provided the property has irrigable land to justify such a water work(s).





25

A few days later, on 1 October the new National Water Act No. 36 of 1998 came into effect.65 There was no response to the permit applications farmers

had submitted earlier to DWA. In legal terms, if DWA wanted to comply with

the Water Act of 1956, it would have to publish lists of applications for water

allocations, in terms of Section 62 (2F) of the 1956 Act. The procedures formed

part of the operations of the department in matters of this nature.66 This

implied that officials would typically have processed and responded to all the

applications. This did not happen, despite the fact that there is evidence that

the farmers began to respond by making application to register their rights in

1993. Furthermore, sections dealing with surface water in the National Water Act only came into effect a year later (1999). Until October 1999 surface water

was supposed to be dealt with in terms of the 1956 legislation.

Up to the present, although the National Water Act is applied in all its contexts,

there is still a tendency to apply the old act. This is primarily when it is

necessary to determine when a water use is an existing lawful entitlement. The

old Water Act then has to be used in cases where the use was authorised under

that specific Act. In essence it implies then that the Act is essentially used for

the verification process of entitlements. Consequently not all issues pertaining

to irrigation have been properly incorporated into the new Act. For example, in

1998 (when the LHWP‟s water started flowing down to the Vaal Dam) the

farmers were legally using LHWP water. If they used it prior to 18 September

1998 and their use was within those limits (using less than 110ℓ/s), it was legal.67

It is a fact that Lesotho Highlands‟ water, as of 1998, simply swamped the whole

water supply of the Liebenbergsvlei River.68 Everything was in place to protect

the water supply from Lesotho. Section 62 (2F) was intended to enforce the

powers of DWA. This implied that the water in the Liebenbergsvlei River would

be apportioned to the farming community in such a manner that it excluded the

water flowing downstream as part of the Lesotho Highlands Water project. This

simply did not happen. Departmentally the matter was overlooked and no

efficient measures were taken.

Field surveys were conducted by the consulting firm of Schoeman & Vennote.69

All water users and water works were surveyed in the process. Over and above a

65 . The Act had been published in August 1998. See Government Notice No. 1091 of

26 August 1998. National Water Act, No. 1091 of 1998 in Government Gazette of the Republic of South Africa, No. 19182, 1998.08.26.





68 . TOA, Interview: Walther van der Westhuizen (54), Director Strategic asset


NWU, Vaal, 2009.05.21.

69 . Ibid.

26

comprehensive report that had been compiled and submitted to DWA in 1994, a

second report was prepared and completed for the department in 2002-3.70

However, the report,71 which essentially quantified water-use and followed up on

water developments on 276 farming properties since 1994, was never formally

released.72 The department‟s officials then moved in and started checking and

telling farmers they could only use 21 ha of land under irrigation. This state

affairs pre-empted the legal steps subsequently taken by the farmers. They

would then typically resort to getting an advocate and taking legal measures.

Farmers were told to stop irrigating illegally. Their legal advisors would then

argue in terms of the Vaal and its tributaries. They would insist that the

Liebenbergsvlei River was not a tributary of the Vaal, but of the Wilge.73

6. The state of affairs currently

To all intents and purposes it is as if the LHWP, a visionary hydrological water

supply concept identified way back in the 1930s and outlined in the 1950s,74 has

gone awry. In a local environment of rapid water consumption it is almost as if

there is no tomorrow; sustainable development has become irrelevant. In some

contexts it is as if a spirit of predatorial capitalism appears to be afoot. A

notable feature of this attitude can be summarised as the irresponsible and

unsustainable exploitation of the available natural resources in order to

generate wealth. It is as if this process of finite wealth creation is used to

compensate for a number of insecurities prevalent in the environment in which

the local farming industry finds itself.

As has been pointed out above, the LHWP was developed with the specific

intention of supplying water to the Gauteng region of South Africa, which not

only hosts 40 per cent of the country‟s population but economically contributes

70 . A copy of the executive summary of this report was given to the research team,

when Johann Tempelhoff and Martin Ginster met with Francois Joubert of

Schoeman & Vennote in Brits on 2009.05.12. Forthwith noted as Executive

summary, Liebenbergsvlei 2002 report by Schoemen & Vennote report to DWAF,

2002.

71 . F Joubert (Compiler), Verification and water use registration of the LBVR

riparian farms. (Schoeman & Associates, Pretoria and Brits, January 2003).

72 . Ibid.; TOA, Interview: F Joubert (43), (GIS expert on Liebenbergsvlei River

water), Schoeman & Vennote, consulting engineers to the DWA, Brits,

2009.05.12.

73 . Ibid.

74 . MB Matli, The social impacts of a large development project: Lesotho Highlands

Water Project (M.Sc, Geography, University of the Free State, Bloemfontein,

2005), p. 8.74 .

27

more than half its gross domestic product (GDP).75 Now, as more and more

projections of the anticipated water shortfall in the Vaal River water supply

system are being made, questions are being asked about the real benefits of the

LHWP. This, one of the biggest projects of its kind in Africa, stands out as a

masterpiece of civil engineering. Moreover, the spinoffs of the project have

been considerable. It has brought considerable prestige to southern Africa,

specifically to Lesotho. In South Africa as well as Lesotho the LHWP has meant

that both governments have managed to incur financial savings by working

judiciously within the project framework; both countries have started fostering

economic and political interdependence; jobs have been created in both Lesotho

and South Africa; and for Lesotho especially, it has been an opportunity to

develop the Lesotho Highlands.76

However, there has also been a downside to the LHWP. Seloane and Van der

Zaag,77 Hassan and Matete,78 as well as Hoover,79 to name but a few, have

identified a wide variety of socio-economic disadvantages that have ensued for

civil society in Lesotho as a result of the LHWP. In some quarters there is a

sense of discomfort and agitation with transboundary partners further

downstream. Namibia relies on the water of the Orange River. That country‟s

water managers are concerned about the decline of their water supply.80 In

many respects what is happening in the farming industry and its dealings with

the DWA in the Eastern Free State can perhaps also be seen as yet another

negative consequence of the development of the LHWP.

75 . NE Willemse, “Actual versus predicted transboundary impact: a case study of

Phase 1B of the Lesotho Highlands Water Project” in Water Resources Development, 23(3), September 2003, p. 457.

76 . R Meissner, The transnational role and involvement of interest groups in water

politics: a comparative analysis (D. Phil, International Politics, University of

Pretoria, 2004), p. 194.

77 . P Seloane and P van der Zaag, “Can local people also gain from benefit sharing in

water resource development? Experiences from dam developments in the Orange

Senqu River Basin” in Physics and Chemistry of the Earth Parts A/B/C, 32(15-

18), 2007, pp. 1322-1329.

78 . R Hassan and M Matete, “Integrated ecological economics accounting approach

to evaluation of inter-basin water transfers: an application to the Lesotho

Highlands Water Project” in Ecological Economics, 60(1), November 2006, pp.

246-259.

79 R Hoover, The World Bank‟s failed efforts to restore lives and livelihoods of dam-affected people in Lesotho, (International River Network [IRN], Berkeley,

2001).

80 . NE Willemse, “Actual versus predicted transboundary impact: a case study of

Phase 1B of the Lesotho Highlands Water Project” in Water Resources Development, 23(3), September 2003, pp. 457-472.

28

Figure 4 Pivots on the Liebenbergsvlei River. Source: Google Earth Jan 2009

Map 1 Map showing an overview of the integrated Vaal River system81

A perspective on the dire nature of the water supply situation is presented by

the findings on the Vaal River system studies available from the website

81 South Africa, Department of Water Affairs and Forestry, Vaal River system:


Pretoria, 2006),Appendix A-1

29

dedicated to share information.82 The strategic objective of this project

funded by the DWA is the development of management measures to ensure that

the Vaal River water supply system can provide the water required for the

region. Further, the studies have focused on and identified the measures

required to maintain and improve water quality in the Vaal River system up to

2025 and beyond. A map showing the overview of the Vaal River system is

presented in Figure 1, while Figure 2 indicates the main irrigation developments

on a sub-catchment level on the Vaal River system. The water transfer from

Lesotho is clearly shown and is by volume the most important source of water

that is transferred into the Vaal River system.

Map 2 Irrigation developments within the Vaal River sub-catchments83

7. Governance: between anarchism and lawlessness?

In the Liebenbergsvlei River catchment of the Eastern Free State, riparian

property owners in particular are said to be currently extracting water

unlawfully for irrigation. Most of them do not have final confirmation of the

status of the legality of their water use. Working from a bold point of

82. DWA, Integrated Vaal River system WRM Studies” at

www.DWA.gov.za/Projects/VaalWRMS/default.asp (Accessed 6 July

2009.07.06).

83 South Africa, Department of Water Affairs and Forestry, Vaal River system:


Pretoria, 2006),Appendix A-2

http://www.dwaf.gov.za/Projects/VaalWRMS/default.asp

30

departure the question arises: are we dealing here with lawlessness or

anarchism? This was discussed comprehensively in the research group around

the issue: are we fundamentally bad or are we potentially good when we are

effectively governed?84

Anarchy and anarchism are among two of the most misconstrued concepts in

political science theory. According to L Susan Brown, the popular understanding

of anarchism is „of a violent, anti-State movement‟.85 However, anarchism has a

much more subtle tradition than the mere opposition to government power.

Anarchists oppose the idea that government is necessary for society and

therefore advocate a more co-operative and non-hierarchal form of socio-

political and economic organisation. Brown also states that anarchism reflects

that

the center of gravity in society is the individual – who must think for

himself, act freely and live fully.86

Generally the words anarchism and anarchy are used to suggest „chaos‟ and

„lawlessness‟ and it therefore implies that anarchists desire social chaos.

According to Sheen, anarchism is primarily a movement against hierarchy since

hierarchy is the organisational structure that embodies authority. He describes

this as „the absence of a master or sovereign‟, which can lead to anarchy

(lawlessness and chaos).87 Donald J. Boudreaux describes a lawless society as one

which has no rules to govern behaviour.88 In this society the clever and the

strong prey on those who are not as smart and are much weaker. Willet, in turn,

reminds us that political philosophers have been discussing the nature of man

and the need to be governed for many a year and the main question still remains:

Are we fundamentally bad and should we therefore expect to be treated as

such?89 Or are we fundamentally bad but capable of good if we are properly

ordered, guided and governed?90 Willet suggests that we have a very real

tendency to co-operate whenever possible. However, this tendency is far from

perfect and to counterbalance it, cheating is also a natural instinct which can

84 . TOA. Internal Conference notes, 2009.05.15.

85 . LS Brown, The politics of individualism, (Black Rose Books, Montreal, 2003), p.

12.

86 . Ibid., p. 12.

87 . D Sheen, “Anarchy - neither masters nor slaves” in Anarchitecture at

http://davidsheen.com/words/anarchy.htm (Accessed 2009.05.24).

88 . FJ Boudreaux, D.J. 2001. “The A word” in Thoughts on Freedom, at

http://www.gmu.edu/departments/economics/boudreaux/articles/2001/aword.ht

ml (Accessed 2009.06.03)

89 . M Willet, M. “Anarchy, no solution” in Debate Unlimited at

http://mwillett.org/Politics/anarchy1.htm] (Accessed 2009.05.22)

90 . D Sheen, “Anarchy - neither masters nor slaves” in Anarchitecture at

http://davidsheen.com/words/anarchy.htm (Accessed 2009.05.24).

http://davidsheen.com/words/anarchy.htm

http://www.gmu.edu/departments/economics/boudreaux/articles/2001/aword.html

http://www.gmu.edu/departments/economics/boudreaux/articles/2001/aword.html

http://mwillett.org/Politics/anarchy1.htm

http://davidsheen.com/words/anarchy.htm

31

only partially be controlled by our tendency to co-operate. Along with the

abovementioned definitions of anarchism, this ideology relies on humanity to

trust each other and not to cheat, therefore making the existence of

government unnecessary.91 Since cheating and thus taking more than we deserve,

is part of our nature, government is necessary to avoid chaos and lawlessness.92

When government puts forward legislation, and those affected by it want to co-

operate, but government does not have the capacity to implement its own laws,

chaos and lawlessness can be the consequence. However, in this instance, those

who are supposed to adhere to these laws are not to blame for the lawlessness

and chaos; the blame lies rather with those who do not enforce it. Burger

describes South Africa as a state rightly proud of its new democracy,

constitution and the civil liberties that have ensued. He states that the

incidence of crime and disorder is worrying and that the distinction between

lawlessness and anarchy is „uncomfortably‟ vague. Lawlessness does not only exist

when murders, riots and demonstrations take place. It is also seen in more

subtle forms; the way government neglects its responsibilities, leaving society to

fend for itself.93 In the water sector there are many similar examples.94

The situation in the Liebenbergsvlei River can be considered against this

background of anarchism and lawlessness. It could be argued that irrigation

farmers in this region have become anarchists (lawless) either by choice, but

more frequently out of desperation. In the Liebenbergsvlei River area the main

91 . M Willet, “Anarchy, no solution” in Debate Unlimited at

http://mwillett.org/Politics/anarchy1.htm] (Accessed 2009.05.22).

92 . Ibid.

93 . Burger, J. 2008. “‟Broken Windows‟ and our lawless society” in ISS Today (Institute of Security Studies), at

http://www.issafrica.org/index.php?link_id=5&slink_id=5624&link_type=12&slink

_type=12&tmpl_id=3]. (Accessed 2009.06.05).

94 . K Foss, “Sewage in the streets – residents up in arms” in The Star, 2009.06.24,

p. 2; C Claassen, “Sannieshof se uitspraak maak húlle nie bang nie” in Beeld, 2009.07.03 at

http://152.111.1.88/argief/berigte/beeld/2009/07/03/B2/7/tccdinok.html

(Accessed 2009.07.05); L de Beer, “‟Dit is „n resep vir anargie‟” in Beeld, 2009.06.22 at

http://152.111.1.88/argief/berigte/beeld/2009/06/22/B1/7/lbtswainghof_1724

.html (Accessed 2009.07.05); JWN Tempelhoff, “Service delivery conflict in

South Africa‟s water sector: Phiri, Soweto‟s pre-paid meter protest” in

Quarterly Bulletin of Third World Studies, 49(1), 2009, pp. 30-53; JWN

Tempelhoff, “Civil society and sanitation hydropolitics: a case study of South

Africa‟s Vaal River Barrage” in Physics and Chemistry of the Earth, Parts A/B/C, 34(3), 2009, pp. 164-175; JWN Tempelhoff, V Munnik and M Viljoen, “The Vaal

River, South Africa‟s hardest working water way: an historical contemplation” in

TD The Journal for Transdisciplinary Research in Southern Africa, 3(1) July

2007, pp. 107-133.

http://mwillett.org/Politics/anarchy1.htm

http://www.issafrica.org/index.php?link_id=5&slink_id=5624&link_type=12&slink_type=12&tmpl_id=3

http://www.issafrica.org/index.php?link_id=5&slink_id=5624&link_type=12&slink_type=12&tmpl_id=3

http://152.111.1.88/argief/berigte/beeld/2009/07/03/B2/7/tccdinok.html

http://152.111.1.88/argief/berigte/beeld/2009/06/22/B1/7/lbtswainghof_1724.html

http://152.111.1.88/argief/berigte/beeld/2009/06/22/B1/7/lbtswainghof_1724.html

32

problem, according to the farmers, seems to be the inability of DWA to issue

water licenses in a timely manner to those irrigation farmers who made legal

application for licenses as required by the National Water Act, No. 36 of 1998

(the Act).95 According to the Act, water use is controlled by the way water is

used and by finding out how much water is used. There are three types of water

use authorisations: schedule one (small amount of water consumption and

minimum to low risk consumption); general authorisations (limited consumption

and low risk users); and water use licenses (greater water use and high risk

consumption). Schedule one users do not have to register water use since this is

basically water used only for domestic purposes. Users operating in the category

of general authorisations must register their use. They do not need prior

permission to start the use, but it must be registered. Only in cases where the

total storage on a property is less than 10 000m3 is no registration of storage

required.96 General authorisations do not need registration if a limited amount

of water is stored in a small dam or reservoir. Other water use requires

registration. Water use licenses are the type of water authorisation that are

required for new water use (after the implementation of the National Water Act of 1998). This applies to any new water consumed or used for agricultural or

industrial purposes.97

A water use licence gives the water user formal authorisation to use water for

production i.e. commercial irrigation and industry. The process entailed in

applying for a license was described by Mr G Smit, an attorney in Frankfort, as

follows:

The DWA registers land that will be irrigated. The moment this

registration takes place, the irrigation farmer receives a certificate

stating that his irrigation property has been registered. This is however

not a legal water license. The farmer starts to get a bill every month from

the DWA, not for water used for irrigation, but for service fees for the

DWA. The farmer must then apply for the water licence and wait for the

Department to issue the licence before he/she may continue irrigating.98

Experts in the field of irrigation along the Liebenbergsvlei River are not

necessarily in agreement with the above argument.

8. Section 35 process: a solution?

The new National Water Act No. 36 of 1998 describes how the extent of

lawfulness of water use is determined. Part 3 of the Act specifies the

conditions under which existing water use may continue even though that water

95 . Gouws (Ina) oral archive (GIOA): Interview JD Claasen (67), Frankfort,

2009.04.30.

96 . Information provided by Mr Walther van der Westbhyuizen.

97 . SOUTH AFRICA. Department of Water Affairs and Forestry. Guide to the

National Water Act. (Government Printer, Pretoria, 2005) pp. 30-31.

98 . GIOA: Telephone interview G Smit (65), Vanderbijlpark, 2009.05.04.

33

use was derived from a law that has been repealed by the 1998 Act, notably the

Water Act of 1956. With the scrapping of riparian rights granted under the

1956 Water Act with the implicit intention to license water use, guidance was

needed to the interim measures that would be applied, particularly to river front

property owners, and to clarify their water use entitlements.

One clear intention of the Act is for all water uses to eventually undergo a

process of compulsory licensing. It was accepted that this would take time to

implement. Interim measures to determine one‟s lawful water use were

therefore included in the new Act. Very importantly no (water use) license is

required to continue with an existing lawful water use „until a responsible

authority requires a person claiming such an entitlement to apply for a license‟.99

When a license is issued it becomes the source of authority for the water use.

If a license is not granted the use is no longer permissible. This provided a big

incentive for water users to co-operate with the authorities and to ascertain

lawful water use. The long and cumbersome process which is described below

has many loopholes and inherent delays – which are to the advantage of the

water user if he is using more than his lawful entitlement.

Existing lawful use is defined in the Act‟s Section 32 (1) as (a) a water use which has taken place at any time during a period of two years immediately before the date of commencement of this Act (i.e. the 1998 National Water Act).

Exceptions to the above can be considered by means of an application to a

responsible authority who then needs to declare whether the application can be

considered an existing lawful use of water. But he must be satisfied that:

The water use took place more than two years before the commencement

of the 1998 Water Act (36 of 1998) and was discontinued for good

reason (33 (3)a);

Had not taken place at any time before the commencement of the 1998

Water Act but would have been lawful had it so taken place. An

additional requirement stipulated is that the steps towards affecting the

use had been taken in good faith before the date of commencement of

this Act.

Authority to continue with existing lawful water use

Section 34 imposes conditions on existing lawful water use by a person (or that

person‟s successor in title). The conditions imposed may include any „existing

conditions or obligations attached to that use or any other limitations or

prohibition by or under the Act‟. The lawful water use can also be replaced by a

licence in terms of this Act (34 (1) b. Lawful water use must not be confused

99 . South Africa, Department of Water Affairs and Forestry: A guide to verifying

the extent of water use, edition 2.1, November 2006. Electronic version

accessed at www.dwea.gov.za on 2009.07.05.

http://www.dwea.gov.za/

34

with water use as authorised under a water use licence as issued in terms of the

1998 Water Act.

Further, regulations published by the minister in terms of Section 26(1)(c)

water users were requested to register all water use, whether lawful or not.

Section 34 (2) that stipulates a responsible authority may require the

registration of an existing lawful water use (subject to certain regulations), was

not used for this process.

Verification of existing water use

Section 35 covers the verification process.100 The responsible authority has

powers to request information so as to verify the lawfulness (or otherwise) of

an existing water use. This is presumably once a water use has been registered.

This is undertaken by a responsible authority making a written request to the

person claiming an entitlement to a water use to verify use.

The verification of a registered water use typically involves the process as

outlined in Figure 1 and is briefly described below.

Step-by-step procedure for the verification of lawfulness of water use

The first step in the process involves the responsible authority (DWA) serving a

notice on a water user to apply in terms of Section 35 (1) for verification of the

lawfulness and extent of existing taking and storing of water. In this letter,

DWA provides to the farmer the best estimate (or pre-validation) of water use.

This information is based on:

Information from the registration process. The registration of water

use is the first step in the process as described in Section 21. In terms

of regulation 3(b) of Regulation 1352 dated 12 November 1999 a person

who uses water as contemplated in Section 21 of the NWA must, when

called upon by the responsible authority to do so, register the water use.

The registration of water use in the Upper Vaal Water Management Area

was requested by Notice number 387, published in the Government Gazette Number 21086, dated 14 April 2000.101 Note, the registered

water use is only a declaration of water use by the water user. It does

not acknowledge an existing lawful water use entitlement or an

application for a water use entitlement;

Satellite imagery, aerial photographs;

Existing records and reports from the area; and

Departmental officials.102

100 . See Addenda 1-3 for examples of forms farmers are required to fill in as part of

the verification process.

101 . Notice No. 387 of 14 April 2000. “Request to register a water use” in

Government Gazette No. 21086, 2000.04.14.

102 . Additional information can be obtained through informal processes (telephone

calls, faxes, letters, e-mails) but this is not to be confused with a formal request

in terms of Section 35 of the NWA.

35

The notice requires the water user to apply for verification of his/her water

use in order to confirm the lawfulness and extent thereof. An application form

is attached to the notice with a request to be completed by a date specified in

the notice. It further gives the address to which the application forms need to

be sent. The notice also indicates that should the application not reach the

responsible authority on or before the due date that the water user may loose

his/her entitlement to continue the water use. Furthermore, it states that

additional information can be requested from the water user (in terms of 35(3)

of the NWA and that the water user may also make representations before the

responsible authority in terms of Section 35(4).

Confirmation (or otherwise) of the lawfulness and extent of existing water use on a property (in terms of Section 35(1) of the NWA)

The above notice includes an application form on which the water user can agree

(verify) his/her water use. The water user then signs and returns the

„declaration by applicant‟. In the case where the water user does not agree with

the provisional validation the applicant can submit documentation which verifies

the water use as existing lawful water use. Documentation could include any

permit, water court decision, servitude, agreement or other legal proof allowing

for the abstraction or storage of water.

If the water user did not reply to notice: In the situation where the water user

did not reply to the responsible authority by the stipulated date, a directive can

be issued by the DWA for a water user to apply for the verification of existing

water use. The original notice is attached to the directive and gives the water

user another opportunity to verify his/her water use. If the water user does

not comply with the directive (to apply for the verification of water use) a

competent court can be approached for appropriate „relief‟ in terms of section

53 (2)(b) of the NWA. If the water user does comply with this directive it can

either be in agreement of the provisional validation by DWA of water use or not,

in which case supporting documentation would have been supplied as described

above.

Request for additional information: In the case where a water user applied for

verification as per the notice but DWA is of the view that they require

additional information, then a request for additional information is made in

terms of Section 35(3)(a). In the case where the water user did not respond to

the request then a directive can be issued requesting additional information

with which to make an assessment of water use.

Outcome

As can be seen from the above the so-called Section 35 water use verification

process is a long and cumbersome one. The outcome that the water user hopes

for is a letter confirming the verification results stating his/her existing lawful

water use. There needs to be a further agreement on the extent of unlawful

water use and that this will be stopped as per any directive issued. Agreement

between the authorities and the water user in terms of what constitutes lawful

36

water use has often not been reached. During the registration process farmers

tended to significantly overestimate water use. This was quite possibly

responsible for the breakdown of communication between the authorities and

the farmers. It is possible that some farmers were of the opinion that the

registration process was the last opportunity for a water user to lay claim to a

water use entitlement.103 Since there was only a form that had to be completed

it seemed that the general trend was to overestimate water use in case lower

allocations were offered at a later stage. The responsibility to demonstrate the

extent of lawfulness of water use has largely been placed on the department.

This has resulted in extensive investigations, usually using satellite images from

which water use for irrigation can be estimated relatively easily. Nevertheless

there still remain many loopholes particularly in forcing the measurement of

water use. Regulations demanding that water users measure water use are being

drafted. The department‟s view is that this will help them control water use.

Summary of verification process

The process was begun by issuing notice in April 2000104 requesting that all

water users in the Upper Vaal register their water use. Based on the

information received from the water users and additional information obtained

from surveys, and satellite images, DWA prepared a pre-validation of water use

by a farmer. A distinction was made between what was considered to be lawful

and unlawful water use. As per the requirements of the National Water Act, 36

of 1998, DWA issued notices to water users to verify these pre-validation water

use estimates determined by the department. Various administrative processes

were possible including a request for additional information or directives if

there was no response to the notice. Water users could also make

representation to the authorities. Communication challenges, mistrust, fear (of

losing water entitlements) all contributed to the long delays in finalising this

process. In some cases the department was able to provide confirmation of

existing lawful water use which would be the ideal outcome for the farmer

concerned.

103 . At the time of the public meeting with the farmers on 10 July 2009 at Reitz,

one of the lawyers present told the meeting that they had been told to give an

over-estimation of their consumption, by the consultants who were doing the

survey for DWA.

104 . Notice No. 387 of 14 April 2000. “Request to register a water use” in

Government Gazette No. 21086, 2000.04.14.

37

Diagram 1 Flow diagram of the Section 35 water use verification process105

9. Farmers’ frustrations with DWA

It is interesting that matters of irrigation were relegated to second place when

farmers discussed their frustrations with the research team members. Most

negative comments were aimed directly at DWA. Issues that came up included

the apathy of DWA officials; this discouraged farmers.106 Moreover, the lack of

clarity on the part of DWA about water rights caused some confusion. It

affected the local property market which determined the price of farming

land.107 This was a message echoed by many respondents. One farmer even said

that he did not know what to expect from DWA. Farmers did not trust DWA.

According to Mr Mark Jankielsohn farmers were not informed about any actions

taken by DWA.108 Other farmers also said that communication with DWA was

105 . Adapted from information provided by Francois Joubert of Schoeman &

Vennote.

106 . Nyandoro Oral Archive (NOA): Interview: S de Jager (37), Frankfort,

2009.04.28.

107 . Gouws Claudia Oral Archive (GCOA), Interview: S de Jager (37), Frankfort,

2009.04.28.

108 . GIOA, Interview: M Jankielsohn (50), Bethlehem, 2009.04.29.

38

impossible.109 Mr Willie Venter believed that the only way to get any answer

from DWA was to make use of a lawyer, but that was often prohibitively

expensive.110

Mr JD Claasen, a lawyer who was interviewed, also said that the communication

between DWA and the farmers left much to be desired. The department did not

inform the farmers what exactly was needed. According to him effective

communication with local people implied an interactive process; one of providing

feedback. He thought that the problem was partly due to incompetence on the

part of DWA officials.111 According to Mr Pieter Potgieter the officials in DWA

did not seem to know what the problem really was.112 Messrs Mark Jankielsohn

and Hans Pretorius shared this opinion. According to Pretorius, the situation was

out of the hands of DWA. The responsible officials could not perform and they

appeared to have little or no control over water use.113 Jankielsohn said the

department was not open to farmers‟ needs.114

Another lawyer, Mr Gerhard Smit, also questioned DWA‟s ability to cope with

the situation. According to him the department did not have the capacity to

issue licenses in a timely manner. This gave farmers no choice but to irrigate

illegally while waiting sometimes more than five years for a legal water licence.115

Mr David Mashinini, the only black farmer interviewed,116 shared these doubts

about DWA. He was of the opinion that if DWA acted decisively then the

farmers would abide by the rules. The problem of water use was primarily

caused by the inability of DWA to implement its own policies. According to him

the farmers were taking advantage of the situation and benefiting while DWA

was battling with competency-building.117

During interviews with farmers it became clear that there are many

misunderstandings and incorrect assumptions. For instance, one farmer is in a

dispute with the DWA. He refused to pay water bills on land that was not being

irrigated. What he did not seem to understand (or what was not clearly

conveyed to him) is that the moment he registered his property on the banks of

the Liebenbergsvlei River, he was scheduled to receive service bills from DWA.

109 . TOA, Interview: H van Zyl (35), Bethlehem, 2009.04.29; GCOA, Interview: T

Theunissen (41), Bethlehem, 2009.04.29.

110 . GIOA, Interview: W Venter (46), Frankfort, 2009.04.30.

111 . NOA, Interview: JD Claasen (61), Frankfort, 2009.04.30.

112 . GIOA, Interview: P Potgieter (48), Tweeling, 2009.04.30.

113 . Mäki, Harri Oral Archive (MHOA), Interview: JJ Pretorius (50), Frankfort,

2009.04.30; GCOA, Interview: JJ Pretorius (50), Frankfort, 2009.04.30.

114 . GIOA, Interview: M Jankielsohn (50), Bethlehem, 2009.04.30.

115 . GIOA, Interview: G Smit (65), on telephone, 2009.05.04.

116 . He is a senior member of the National African Farmers‟ Union (NAFU).

117 . Mathipa Ruth Oral Archive (MROA): Observations from the interview with D

Mashinini (41), Bethlehem, 2009.04.29.

39

His dispute with the department began in 2003. He subsequently visited the

DWA head office in Pretoria several times to sort out the matter. Officials

there did not seem to realise what the problem really was and the farmer has

been strung along for the past five years. The DWA itself did not realise that

the bills were not for water used in irrigation, but were a compulsory water

resource management charge that is levied to all registered water users.

According to Potgieter he was cheated out of an allocated amount of water by

the DWA, who told him that the water he needed to irrigate 15ha of lucerne

was the same amount of water he would need to irrigate 80ha of maize.

Furthermore, he continues to receive unexpected bills.118

The fact of the matter is that in 1999, in line with its national water resource

strategy, DWA initiated the establishment of its 19 water management areas.

In the subsequent government notice issued under the auspices of the then

minister of water affairs and forestry, Mr Ronnie Kasrils, the Upper Vaal

catchment area consisted of the following major rivers: Wilge, Liebenbergsvlei

and the Vaal. The tertiary drainage region of the catchment area was (in line

with the planning strategy) the areas: C 11 to C 13, C21 to C23, and C81 to C83.119

At the time Agri SA, one of the major organisations of farmers in the country,

gave their complete support to DWA to introduce an orderly registration

process to legalise irrigation activities.120 On 1 April 2002 DWA introduced a

water resources management levy in each of the 19 water catchment

management areas of South Africa. The objective was to use the funds for the

effective management of the water supplies in the respective catchment

areas.121 In the context of this arrangement Agri SA had an agreement with the

department that every year, in June, communication between the organisation

and the farmers would be undertaken in order to discuss the levy and determine

the priorities for the upcoming period. The intention was then to coordinate the

planning so that tariffs could be rounded off and be implemented every year on

1 April.122

In the light of recent developments concerning alleged illegal water use by

farmers it appears that there are different interpretations of the undertakings

118 . NOA, Interview: P Potgieter (48), Tweeling, 2009.04.30.

119 . Government Notice, 1160 of 1 October 1999, Establishment of the water

catchment management areas and their boundaries as a component of the

National Water Resource Strategy in terms of section 5(1) of the National Water Act, No. 36 of 1998 in RSA, Government Gazette of the Republic of South Africa, No. 20491, 1999.10.01.

120 . Anon., “‟Gebruik water met sorg‟” in Landbouweekblad, 2008.12.01 at


1295_2435219,00.html (Accessed 2009.06.16).

121 . N Opperman, “Volhoubare bestuur van water verantwoordelikheid van elke boer”

in Bylae Landbou tot Volksblad, 2004.03.26, p. 2.

122 . Ibid.



40

made by government and organised agriculture. This could well constitute the

next phase of confrontation.123

10. Farmers’ perspectives

For the purposes of this report, a member of the research team selected a

number of opinions expressed by farmers on how they saw their own situation. A

qualitative selection of statements made by farmers, during interviews provides

some insight into how farmers feel about their circumstances. This is essentially

classified into categories dealing with: their professional perspective;

perspectives on irrigation; and perspectives on the land reform and restitution

process.

a) Professional perspective

It is not easy to farm. The government must help farmers instead of maintaining

its current attitude of subtly threatening farmers, remaining silent and

maintaining secrecy.124 Farmers need information about legislation. It should be

communicated to them. They all have e-mail addresses.125 Farmers need help

from the government. Their profit margins are shrinking.126 South African

farmers are unable to compete with farmers in countries such as France and the

United States of America where subsidies, of as much as 40 per cent, are the

order of the day.127 Fertilizers are expensive.128 Government should fix fertilizer

prices, but also simultaneously that of maize, wheat and other crops.129

Electricity tariffs have gone up by 32 per cent in the past four years. This too

has had a negative impact on farming operations.130

123 . H Duvenhage, Minister geroskam ná haar aantygings oor boere, water” in Beeld, 2009.06.26 at


45-B2-02.html (Accessed 2009.07.07); H Duvenhage, “Minister stook kwaad met

boere-aantygings” in Beeld, 2009.06.26 at


45.html (Accessed 2009.07.07).

124 . GCOA, Interview: A Reitz farmer who chose to remain anonymous (39), Reitz,

2009.04.28.

125 . GCOA, Interview: J Nel (49), Reitz, 2009.04.28.

126 . GCOA, Interview: M Thomas (38), Frankfort, 2009.04.30.

127 . GCOA, Interview: J Nel (49), Reitz, 2009.04.28.

128 . GCOA, Interview: M Thomas (38), Frankfort, 2009.04.30.

129 . GCOA, Interviews: J Nel (49), Reitz, 2009.04.28; M Thomas (38), Frankfort,

2009.05.30.

130 . GCOA, Interview: M. Thomas (38), Frankfort, 2009.04.30.





41

Figure 5 Debris of dead trees threaten the stability of the Wilge River Bridge near

Frankfort.The Liebenbergsvlei River is a tributary of the Wilge. Photograph:

Johann Tempelhoff, 2009.04.30.

Government should help to save rural infrastructure. An example given was the

Wilge River Bridge, outside Frankfort, which at the time of fieldwork in April-

May 2009 was considered by local farmers unstable as a result of a log pile-up.

The tree stumps should be removed and the river cleaned up.131

b) Perspectives on irrigation

If farmers are in the position to produce food, they should have access to free

irrigation.132 Existing irrigation should be given the opportunity to go ahead.

There should be a limitation on all new irrigation developments.133 Farmers need

help from government for workers‟ education/training.134 There should be strong

channels of communication with DWA.135 The accuracy of satellite images is open

to criticism, e.g. the depth of a dam, type of crop and the season must be taken

into consideration when estimated volumes are being determined.136 If the

government determined a unified price for water users the farmers would be

131 . Ibid.

132 . GCOA, Interview: J. Nel (49), Reitz, 2009.04.28.

133 . Ibid.

134 . Ibid.

135 . GCOA, Interview: S De Jager (37), Frankfort, 2009.04.28.

136 . Ibid.

42

willing to pay accordingly.137 There is a huge advantage in irrigation as it doubles

the farmers‟ profit.138 The fast flowing river causes soil erosion.139 It has also

been responsible for the drowning of cattle.140 Areas that were previously

fertile croplands have been washed away as the river has widened.141 If DWA

wants to restrict or stop irrigation, farmers will be the losers. It should be

borne in mind that the country could easily lose as much as one million tonnes of

maize per annum. This may well lead to food security being compromised. And

food shortages will particularly affect the poor.142

During the past 10 years irrigation farming has mushroomed along the

Liebenbergsvlei River, mostly in the area from Frankfort to Villiers and the Vaal

dam, because of the good, sandy soil in that area. An investigation should begin

in the Villiers area and move upstream.143 DWA must have a specific water quota

for irrigation purposes per ha.144 Farmers use precision farming methods

because they cannot afford to waste water. Farming has become a very

dedicated and sophisticated activity, with farmers planning their crops,

fertilizers, labour and finances well in advance.145 Irrigation farmers can afford

to employ a large number of labourers. Employment opportunities are much

better than in dry land farming operations.146 Successful farmers should be

rewarded with tax rebates, not the current harsh form of water-use taxation.147

If the farmers cannot irrigate, they would, before too long, be unable to pay

their loans. Bankruptcy will inevitably follow.148

To implement successful land reform in South Africa the government must pay

for African agricultural students‟ training and the existing farmers will assist

them to be successful farmers.149

137 . GCOA, Interview: H Van Zyl (35), Bethlehem, 2009.04.29.

138 . GCOA, Interview: MW Theunnissen (41), Bethlehem, 2009.04.29.

139 . GCOA, Interview: PJT De Villiers (44), Bethlehem, 2009.04.29.

140 . GCOA, Interview: MW Theunnissen (41), Bethlehem, 2009.04.29.

141 . GCOA, Interview: H Van Zyl (35), Bethlehem, 2009.04.29.

142 . GCOA, Interview: JJ Pretorius (50), Frankfort, 2009.04.30.

143 . Ibid.

144 . GCOA, Interview: GFC du Plessis (34), Tweeling, 2009.04.30.

145 . Ibid.

146 . Ibid.

147 . Ibid.

148 . Ibid.

149 . GCOA, Interview: J Nel (49), Reitz, 2009.04.28; JJ Pretorius (50), Frankfort,

2009.04.30 and GFC du Plessis (34), Tweeling, 2009.04.30.

43

c) Perspectives on Land Redistribution for Agricultural Development (LRAD)

Although most farmers do not openly discuss the matter of the government‟s

policy of land reform and restitution, it is a sub-discourse in their strategic

thinking over farming, irrigation and the future. The Eastern Free State is up to

the present, a frontier zone of sorts. After three frontier wars in the

nineteenth century, attitudes and the regional society‟s sense of historical

consciousness have been shaped and adjusted across the racial divide. Co-

existence on a complex frontier – first as the British protectorate of

Basutoland as of the 1880s, and after 1960, as an independent Lesotho – has

required significant adjustment by both black and white residents. Most

farmers of today are descendents of frontier people, both Afrikaans and

English-speaking, whose families have been resident in the Eastern Free State

since the nineteenth century. In many ways people have learnt how to live with

each other. There is a general sense of acceptance of mutual co-existence and

the need to create a harmonious society over time.

Since the 1990s, as South Africa entered into a phase of multiracial democracy,

the previously disadvantaged people started demanding that the government

forge ahead with the land reform and restitution processes. There seems to be

an attitude that efforts to effectively manage water along the Axle and

Liebenbergsvlei rivers are influenced by the aspirations of farmers in the black

community. If this is not yet a definitive factor it is bound to become so as the

demands of black farmers increase; they are hopeful that the long overdue land

reform programme espoused by the government will be speeded up.150 They

purport that the black population is deprived of fertile, water-abundant farming

land situated along the banks of the Axle and Liebenbergsvlei rivers. Thus far it

has been a case of a „privileged access‟151 for the whites. In 1913, a colonial

government set aside a meagre 13 per cent of the land for the black

community.152 Land reform, it appears, is a definitive factor in the hydropolitical

permutation in the Liebenbergsvlei River catchment, since water rights are

closely connected to land ownership. If there has to be any change in water use

in the farming sector, land ownership has to be considered.

150 . African National Congress (ANC), 1994, The Reconstruction and Development

Programme: A policy framework, (African National Congress, Johannesburg,

1994). Section 2. 4. 2.

151 . LK Oosthuyzen, “Land and water resources management in South Africa.” Paper

presented at the Working Group on Integrated Land and Water Resources

Management (WG-ILWRM), 18th ICID Congress, Montreal: Canada. July 21-28,

2002, p. 4.

152 . E Lahiff, “Land Water and Local Governance in South Africa: A Case study of

the Mutale River Valley,” pp. 12, 15. Rural Resources/Rural Livelihoods Working

Paper 7/1997. (University of Manchester Institute for Development Policy and

Management (IDPM) at http://ageconsearch.umn.edu/handle/30571 (Accessed

2009.07.07)

http://ageconsearch.umn.edu/handle/30571

44

This sentiment is echoed by the black farming community. They emphasise that

DWA has not been able to implement its policies to curb unlawful irrigation

activities along the river.153 There is also some semblance of a desperate cry to

incite a revolution against the overdue land reform and restitution process in

the area. The implementation of land reform plans appears to be particularly

difficult with regard to farms along the banks of the Axle and Liebenbergsvlei

rivers. Ideological differences are central to the land reform process in the

Free State area. Black farmers question aspects such as the willing buyer willing

seller policy which they feel has to be „scrapped‟,154 due to unadvertised farm

sales occurring among the „rich‟ white farmers in the highly productive areas of

the eastern Free State. The 2014 target that 30 per cent of agricultural land

should be owned by black farmers is still very far from being realised. One

farmer defines this situation as follows:

Land reform is a time bomb. We want to have successful commercial black

farmers, not emerging farmers. Government cannot achieve the land

reform.155

Black farmers who belong to NAFU are strongly opposed to government

subsidies to white farmers. They encourage the state to withhold subsidies and

continue importing food into the country, in the hope that this will cripple white

farmers. On the other hand, white farmers appeal to the state to intervene.

They see themselves as able to supply food for the entire population of the

country, but considering the status quo, they are unfairly dealt with hence most

farmers threaten to stop farming if their irrigation activities are interfered

with. For example one farmer explained:

Raising black farmers‟ proportion of land to 30 per cent will piss many people

off. Government should forget it. Farmers will stop farming food.156

Farmers are more than aware that adjustments need to be made in the

prevalent pattern of land tenure. However, they are also cognisant of problems

that have been encountered in the Free State and elsewhere in respect of land

153 . Ginster Martin Oral Archive (GOA), Interview: D Mashinini (47), Bethlehem,

2009.04.29.

154 . Motloung Sysman Oral Archive (MSOA), Interview: D Mashinini (47), Bethlehem,

200.04.29.

155 . MHOA, Interview: JJ Pretorius (50), Frankfort, 2009.04.30.

156 . MHOA, Interview: M Thomas (38), Frankfort, 2009.04.30.

45

reform and restitution processes.157 They are also aware of growing urban

populations in the Eastern Free State.158

One of the solutions in respect of land allocations for Africans in the

Liebenbergsvlei River catchment, hinges on the need for mentoring new farmers.

Most white farmers indicated that they were in favour of the process. Some

were even willing to step in and help. According to Mike Thomas all young

farmers had the right to get the same support because everybody needed it.159

Schabort de Jager and Hans Pretorius were of the opinion that the existing

farmers should mentor new farmers.160 Pretorius was even more explicit. He said

that young black commercial farmers should be given at least 500 ha land on

which to survive. He would be prepared to mentor a black farm manager. There

could even be joint ventures with black farmers if government supported such a

move.161 What was underlined by all farmers was that the right type of new

farmers had to be brought into the system. The haphazard selection of people

as settlers on farming land, as happened in Zimbabwe during the controversial

agrarian reforms of 2000,162 only invited disaster in a competitive industrial

sector that had reached a high degree of sophistication and specialisation.

11. Farming along the Liebenbergsvlei River

Farming in the Free State is a long-established operation utilising land and water

– two of the most contentious issues in the agro-economic and political history

of South Africa. Particularly in the Free State Province, farming is of vital

importance. An estimated 90 per cent of the province‟s surface area is used for

157 . For some detailed studies, see W Beinart, “Farmers‟ strategies and land reform

in the Orange Free State” in Review of African Political Economy, 21(61),

September 1994, pp. 389-402; C Murray, “South African land reform: case

studies in „demand‟ and „participation‟ in the Free State” in African Affairs, 96(383), April 1997, pp. 187-214.

158 . C Murray, “Structural unemployment: small towns and agrarian change in South

Africa” in African Affairs, 94(374), January 1995, pp. 5-22.

159 . MHOA, Interview: M Tomas (38), Frankfort, 2009.04.30.

160 . GCOA, Interview: S de Jager (37), Frankfort, 2009.04.28; MHOA, Interview:

JJ Pretorius (50), Frankfort, 2009.04.30.

161 . GCOA, Interview: JJ Pretorius (50), Frankfort, 2009.04.30.

162 . LM Sachikonye, “From „Growth with Equity‟ to „Fast-Track‟ Reform: Zimbabwe‟s

Land Question” in Review of African Political Economy, Vol. 30, Issue 96, 2003,

pages 227-240 at

http://www.informaworld.com/smpp/ftinterface?content=a718871064&rt=0&for

mat=pdf, (Accessed on 2009.08.13) says: „This was the largest, and most

controversial, property transfer‟.

http://www.informaworld.com/smpp/ftinterface?content=a718871064&rt=0&format=pdf

http://www.informaworld.com/smpp/ftinterface?content=a718871064&rt=0&format=pdf

46

agriculture.163 The Free State is a major contributor to agricultural production

in South Africa. The province makes up about 10 per cent of the surface area

of South Africa but produces a third of the country‟s total grain crop, mainly

wheat and maize. In other words, the Free State has a relatively large area

suitable for crop production compared to South Africa as a whole. Hensley et al.

estimate that crop production is possible on about 14 per cent of South Africa‟s

land. For the Free State the equivalent value is in the vicinity of 29 per cent.164

The Free State has a climate with a wide precipitation range and an aridity

index expressed as an index of rainfall/evaporation. This shows that most of

the region is semi-arid. Exceptions are the south and south-western regions

which are arid and the extreme eastern region which is sub-humid. There are

distinct climatic regions across which the water is transferred from Lesotho

along the Axle and Liebenbergsvlei rivers to the Vaal Dam. The agricultural

potential along the water transfer route has been classified as medium. Key

factors that determine the agricultural potential in this area include rainfall,

rainfall variability, temperature and soil types. In the region close to the

border with Lesotho rainfall is in excess of 700mm and very reliable. The

relatively lower temperatures shorten the growing season for summer crops but

the rainfall is highly effective with lower evaporation rates. In the Reitz-

Bethlehem region (Liebenbergsvlei) rainfall is between 680 and 700mm. The

climate and soils generally favour crop production. Wheat is the favoured crop,

followed by maize with small areas of sunflower and dry beans. In the region of

Frankfort and its surroundings the rainfall decreases to about 600mm. It also

becomes less reliable. The lower rainfall and the existence of soils with a lower

agricultural potential makes the area less suitable for crop production.

Nevertheless, the region is intensely farmed and there is evidence of significant

irrigation from the Wilge and Liebenbergsvlei rivers. 165

In the Eastern Free State, and the mountain kingdom of Basutoland (Lesotho)

the history of farming goes back a long time – in some cases as far back as 550

AD.166 French missionaries working amongst the Basotho since the 1830s, have

recorded that local African communities had ardent agriculturalists in their

midst, farming primarily with sorghum.167 By the mid-nineteenth century they

were producing maize, a crop introduced presumably from Mozambique and the

163 . Anon., “Provincial focus: Free State” in SA Irrigation, 30(4), 2008, p. 11.

164 . M Hensley, PAL Le Roux, CC du Preez, CW van Huyssteen, E Kotze, LD van

Rensburg, “Soils: the Free State‟s agricultural base” in South African Geographical Journal, 2006 88(1), 2006, pp. 11 – 21.

165 . Ibid., pp. 11 – 21.

166 . J Wright and A Mazel, Tracks in a mountain range exploring the history of the uKhalamba-Drakensberg, (Wits University Press, Johannesburg, 2007), p. 46.

167 . E Casalis, The Basutos; or, twenty-three years in South Africa (James Nisbet &

Co., London, 1861), p. 165.

47

Cape Colony.168 Then they also switched to wheat farming and found a ready

market for their produce in the Cape Colony.169 Between 1873 and 1900 maize

became a major export crop from Basutoland to the Diamond Fields of

Kimberley and the Witwatersrand. In 1873 Basutoland exported 8000 tonnes of

grain – about one third of its total production – to Kimberley. By 1893 this had

increased to 11 600 tonnes of wheat and 6000 tonnes of maize.170

Similar developments took place in the Eastern Free State. The first people of

European descent to move into the region as permanent residents started

settling in the 1830s. They acquired land in terms of special agreements with

local African communities. Later, as their number increased, white land

settlement became part and parcel of speculation in fixed property – a

phenomenon that was foreign to the indigenous people who were accustomed to

communal land tenure.171 Indigenous people were increasingly marginalised in

terms of places of habitation.172 Many sought employment on white farms. For

others, sharecropping arrangements between white land owners and their black

neighbours provided a reasonable outcome.173 The development of sharecropping

practices enabled the region to provide large amounts of maize to the rapidly

developing markets of the Witwatersrand goldfields after the 1880s. The

168 . Ibid., p. 168.

169 . Ibid., p. 169.

170 . J McCann, “Maize and grace: history, corn and Africa‟s new landscapes, 1500-

1999” in Comparative Studies in Society and History, 43(2) April 2001, p. 261.

171 . E Casalis, The Basutos; or, twenty-three years in South Africa (James Nisbet &

Co., London, 1861), p. 159.

172 . See TJ Keegan, “White settlement and black subjugation: the Tlokoa heartland

in the north eastern Orange Free State, ca. 1850-1914” in W Beinart, P Delius

and S Trapido (eds), Putting a plough to the ground: accumulation and dispossession in rural South Africa 1850-1930, (Ravan Press, Johannesburg,

1986), pp. 218-258; TJ Keegan, “Dispossession and accumulation in the South

African interior: the Boers and the Thlaping of Bethulie, 1833-1861” in The Journal of African History, 28(2), 1987, pp. 191-207; TJ Keegan, Rural transformations in industrializing South Africa: the southern Highveld to 1914, (Ravan Press, Braamfontein, 1986).

173 . For more information on sharecroppuing, see: C van Onselen, “The reconstruction

of a rural life from oral testimony: critical notes on the methodology employed in

the study of a black South African sharecropper” in The Jo9urnal of Peasant Studies, 20(3), April 1993, pp. 494-514; C van Onselen, „Race and class in the

South African countryside: cultural osmosis and social relations in the

sharecropping economy of the southwestern Transvaal, 1900-1950” in American Historical Review, 95(1), 1990, pp. 99-123; C van Onselen, “Social and economic

underpinning of paternalism and violence on the maize farms of the southwestern

Transvaal, 1900-1950” The Journal of Historical Sociology, 5(2), June 1992m pp.

127-16; C van Onselen, The seed is mine: the life of Kas Maine, a South African sharecropper 1894-1985, (Oxford, James Curry, 1996).

48

impact of gold mining was that more African males started migrating between

Basutoland, the Free State and the gold mines of the Witwatersrand. Following

that, after the formation of the Union of South Africa in 1910 the Natives Land Act of 1913 was passed. It had the effect that many Africans became

dispossessed of land.174

Figure 6 Irrigation pivot on the banks of the Wilge River.

Photograph Claudia Gouws 2009.04.30

There were also other forces afoot. Black farmers in Basutoland began to

change their ways. By the 1920s only 20 per cent of the protectorate‟s adults

were still in agriculture.175 The magnet of job opportunities on the

Witwatersrand created a form of economic outcome for African families. It was

a potential route to follow in order to modernise and become part of a vibrant

urban way of life. In the process, in the rural areas, women became the prime

producers of crops. The outcome was that by the 1930s and 1940s black

farmers increasingly concentrated on subsistence farming activities while white

farmers were producing for the markets in the mining centres of South

Africa.176 After World War II (1939-1945) white farmers tended to engage in

larger land cultivation, using cheap African labour and the latest technological

advances made in the field of dryland production of winter wheat and hybrid

174 . For an exposition of the ramifications of this measure, see T Keegan, “Crisis and

catharsis in the development of capitalism in South African agriculture” in

African Affairs, 84(336) July 1985, pp. 371-398.

175 . J McCann, “Maize and grace: history, corn and Africa‟s new landscapes, 1500-

1999” in Comparative Studies in Society and History, 43(2) April 2001, p. 262.

176 . Ibid., p. 263.

49

maize. Government subsidies, as of the 1950s, along with the mining economy of

the country, enabled farmers to invest heavily in equipment and post-harvest

processing of land, as was the case on dryland farms in the United States of

America and Australia. At the time Basutoland emerged as a reservoir of male

migrant labour for the mines. Farm labour was primarily for subsistence

purposes. The erosion of the land also damaged the agricultural potential of

Basotho farming activities. By the mid-twentieth century, Lesotho which in the

nineteenth century was a major exporter of wheat and maize, had become a net

maize importer.177

The Eastern Free State has traditionally enjoyed the status of the wheat

basket of the Free State.178 Not only is Frankfort home to the second largest

wheat mill in South Africa,179 the region is also famous for its rapid development

and its status as wheat producer in South Africa in the twentieth century.180 In

more recent years there has been a significant shift from wheat to maize

production. This is largely ascribed to the fact that South Africa is currently a

net importer of wheat. Local farmers are unable to compete with the imported

product. Consequently they resort to producing maize, which has a number of

advantages over wheat in terms of production.181 What is more, irrigation is used

for maize production – a trend generally considered to be an inefficient use of a

scarce natural resource.182

12. Irrigation

The „green revolution‟ that began in the 1960s in the developed world, has

perhaps been one of the major developments in the field of the farming

industrial sector in many parts of the world. The introduction of new crop

varieties, advanced fertilisation strategies and irrigation were among the major

177 . Ibid., pp. 263-264.

178 . Anon., “Provincial focus: Free State” in SA Irrigation, 30(4), 2008, p. 11.

179 . TOA, Interview: S de Jager (37), Frankfort, 2009.04.28.

180 . CC Eloff, Oos-Vrystaatse grensgordel: „n streekhistoriese voorstudie en bronneverkenning, I (Raad vir Geestewetenskaplike Navorsing, Pretoria, 1980), p.

119.

181 . Maize has become the most important cereal crop in South Africa at the start

of the new millennium. An estimated 67 per cent of all grain crops produced in

South Africa is maize. It provides 35 per cent of South Africa‟s carbohydrate

dietary requirements, 15 per cent of its fats and 31 per cent of its protein

requirements. An estimated 25 per cent of the maize crops are intended for

livestock consumption. This is unlike the tradition in the rest of Africa. See J

McCann, “Maize and grace: history, corn and Africa‟s new landscapes, 1500-1999”

in Comparative Studies in Society and History, 43(2) April 2001, p. 266.



50

drivers of a process that has had a profound effect on agriculture.183 For the

purposes of this discussion irrigation needs to be singled out. Oral and

archaeological evidence points to the existence of irrigation in the vicinity of

Heilbron in the Free State during the Iron Age.184 Subsequently irrigation has

developed from the typically traditional or rudimentary forms to the

sophisticated technology of the centre pivots introduced in the 1970s.185 The

state has traditionally been one of the important role players in the

development of irrigation farming. Proof of this is the fact that what we today

call the department of water affairs (DWA) was established by the government

in 1912, shortly after the formation of Union (1910). It was then called the

department of irrigation. Irrigation technology and government support for

these innovations continued to grow in leaps and bounds in response to the

economic and political environment as exemplified by the fact that irrigation and

other water resource development projects were implemented with a lot more

vigour after the economic depression and drought of the early 1930s.186

To a limited extent irrigation was also promoted amongst black farmers. In

South Africa the Bantu Investment Corporation (BIC) whose parallel

organisation in Zimbabwe was the Tribal Trust Land Development Corporation

(TILCOR) was set up as a “Native” Corporation responsible for irrigation in

African areas.187 Under this parastatal agricultural corporation, more schemes in

the former Bantustan areas were developed during the late 1950s and 1960s

following recommendations of the Tomlinson Commission of 1956. The mid 1970s

marked the advent of the pivot irrigation system. The need for a constant

supply of water not only for irrigation but also for industrial and consumptive

183 . D Edgerton, The shock of the old: technology and global history since 1900, (Oxford University Press, Oxford, 2007), pp. 64-66.

184 . TM O‟C Maggs, Iron Age Communities of the Southern Highveld,

(Pietermaritzburg: Council of the Natal Museum, 1976), 319 cited in JWN

Tempelhoff, “Historical Perspectives on Pre-Colonial Irrigation in Southern

Africa,” African Historical Review, 40(1), (July 2008), p. 143.

185 . Anon, „60 years of pivot irrigation,‟ SA Irrigation, 30(1), 2008, pp. 4-5.

186 . AR Turton et al, A Hydropolitical History of South Africa‟s International River

Basins, Water Research Commission Report, No. 1220/1/04, (Water Research

Commission, Pretoria, October 2004), p. 2.

187 . National Archives Repository of South Africa (NASA), (UA), BAO 1153/400 –

1166/400 Vol. 8066: File: 1160/400, Bantu Investment Corporation of SA –

Enquiries, “Proclamation by His Excellency the Honourable Charles Robberts

Swart, Governor-General of the Union of South Africa,” Department of Bantu

Administration and Development, 46/12/2/1, 3. See also NAZ, GEN-F/TRI, Tribal Trust Land Development Corporation (TILCOR): Sanyati Project Report,

(Salisbury: TILCOR, January 1974) and Mark Nyandoro, Development and Differentiation: The Case of TILCOR/ARDA Irrigation Activities in Sanyati (Zimbabwe), 1939 to 2000, Saarbrucken: VDM Verlag Dr. Muller, December

2008.

51

needs led to the implementation of the LHWP which became a vital source of

water supply for South Africa in the post 1994 period.

Figure 7 The tunnel outlet of LHWP water into the Axle River near Clarens (Ash

River outfall). Photograph: Johann Tempelhoff 2009.04.29

Irrigation agricultural enterprise currently is a highly contested terrain

between the large constituency of commercial farmers in the Eastern Free

State on the one hand and the government‟s department of water affairs on the

other. In recent times, while the forces of globalisation have presented huge

challenges to even the most capitalised and technically advanced commercial

farmers in the country, irrigation farming has become ever more sophisticated

with the latter group irrigating approximately 1,3 million ha of agricultural land,

making South Africa the largest „irrigation country‟ in the southern African

region.188 By definition irrigation and drainage are processes which aim at the

maintenance of soil moisture within the range required for optimum plant

growth. When the moisture available is not sufficient, artificial application of

water to the land by human agency is called irrigation.189 It is against this

188 . National Department of Agriculture, Strategy document, National Guidelines for

Integrated Management of Agricultural Water Use: An integrated approach to

upliftment and local economic development through the transformation of state

support for agricultural water use, Final Draft Policy Document No. 2, 2/8 July

2002.

189 . Food and Agricultural Organisation (FAO)/UNESCO, Irrigation, drainage and salinity, (Hutchinson, London, 1973), pp. 1 and 510.

52

backdrop that irrigation by the Liebenbergsvlei River riparian farmers needs to

be examined.

The Liebenbergsvlei River catchment covers a surface area of 4625km2 between

the towns of Bethlehem and Frankfort. The general climate is typical of the

Highveld, semi-arid with an average rainfall of between 600 and 700 mm.190

Irrigation in the catchment does not excessively rely on rainfall. Instead, within

the prevailing state of affairs, irrigation thrives on a constant supply of LHWP

water at crucial stages of plant growth. There is considerable contestation,

however, between the irrigators demanding more water and DWA trying to

restrict water use in order to achieve what they regard as the ultimate goal,

namely conserving and regulating water from the Liebenbergsvlei River to

achieve its optimal use for the benefit of Gauteng and industrial activities on

the Highveld.191

One of the farmers, Mr Johan Nel, grows crops such as wheat, maize, sunflower,

potatoes, sugar beans, soya beans, sugar beet and pasture for livestock, under

irrigation on his 1 600 ha farm.192 In a statement apparently directed at DWA he

emphasised: „You must give us a lot of water, that‟s all we want.‟193 The farmer

relies on the centre pivot irrigation system. He practises dryland farming on a

limited scale. Nel argues that „dryland farming is totally out in this area‟ adding

that „I need water [for irrigation] to survive‟.194 He complains that farmers were

getting a raw deal because the price they received for their produce was far

from lucrative. For example, he said the cost of grain was higher than the price

at which they sold. Nel was unhappy that the government was importing wheat as

there is almost no market for local wheat farmers who seem to have the

capacity to supply South Africa with wheat and its other grain requirements.195

The wheat price is also declining. In 2008 Nel sold his wheat crop for R4 000

per tonne, but in 2009 the price was only R3 200. „They give us half the price,‟

this farmer exclaimed. He appealed to the government to do something about

this because „they [the government] are killing the farmer‟. 196 In fact, growing

crops before the selling price is known does not motivate farmers at all. The

announcement of producer prices should be done in advance. A pre-planting

190 . T Vischel, G Pegram, S Sinclair and M Parak, “Implementation of the TOPKAPI

model in South Africa: initial results from the Liebenbergsvlei catchment” in

Water SA 34(3), July, 2008, p. 334.

191 . NOA, Interview: W van der Westhuizen (54), North West University (Vaal

Triangle Campus), 2009.05.21. See also interview with W van der Westhuizen in

Tempelhoff (TOA), Ginster (GOA), Mäki (MHOA), and Mathipa (MROA) Oral

Archives.

192 . MSOA, Interview: J Nel (49), Reitz, 2009.04.28.

193 . NOA, Interview: J Nel (49), Reitz, 2009.04.28.

194 . Ibid.

195 . Ibid.

196 . Ibid.

53

producer price was seen in certain government circles to be in conflict with

market forces which, it was argued, should determine the price. However, it

should be noted that announcing the price ahead of time enables farmers to

plan. The subsidisation element has long been removed. Nel claimed that South

African farmers cannot compare with farmers in the USA and France where

their counterparts enjoy almost a 40 per cent subsidy. He argued: „If the

government does not want to subsidise the farmer, they must stop importing

cheaper wheat and beef from outside‟.197 The farmer only gets a rebate on

diesel which Nel claims is very little. He says he uses approximately 180 000 ℓ of

diesel per annum but only gets R90 000 back.

For irrigation he needs 6 300m3 of water per ha but he says DWA always

stipulates the amount of water each farmer needs.198 He uses 2 million m3/a and

says a farmer is required to pay whether he uses the water or not. He would not

have problems paying for water if the government offered production

incentives. Nearly all the farmers interviewed were in a similar predicament.

They conceded „we have a Water Forum but it is now sleeping‟.199 Another farmer

deplored the apathy of DWA officials.200 Furthermore, there was no government

extension service. Nel said the government has a „contours‟ person but because

government service in this regard is „hopeless‟ farmers usually depend on private

providers of service. The price of ammonium fertiliser, which is continually

rising, is another problem. In 2007 Nel bought ammonium at R10 000 per tonne,

but in 2008 it nearly doubled in price to R18 000 per ton.201 His biggest

challenge is how to market his produce. In the absence of marketing boards (e.g.

a wheat board) he has to look for his own market.202

For some farmers (especially the emergent black farmers) their production

levels were not up to standard because of lack of title to the land. The issue of

tenure and title deeds is important to irrigation enterprise because it does not

only secure the farmers on the land but it motivates them to embark on

improvements that can also help preserve the environment. Clearly, water

resources are available for extensive irrigation operations in South Africa but

the farmers must not only pay a legal premium for the water; they should also

be engaged in efforts to conserve the environment which tends to be very

vulnerable under irrigation, particularly in the Liebenbergsvlei area where the

environmentally unfriendly centre pivot system is the primary irrigation

197 . Ibid.

198 . The issues of how much water the farmers are using have been seen as critical

to DWA‟s operations by David Mashinini. See MROA: Interview: Observations

from the interview with D Mashinini (47), Bethlehem, 2009.04.29.


200 . NOA, Interview: S de Jager (37), Frankfort, 2009.04.28.


202 . GIOA, Interview: J Nel (49), Reitz, 2009.04.28. NOA, Interview: J Nel (49),

Reitz, 2009.04.28.

54

technology in use. It is thus imperative to adopt irrigation technology that is

environmentally friendly.203 The impermanency of tenure on the part of some

farmers, combined with the historical scarcity of capital does not make these

people efficient producers. The lack of agricultural extension advice is

aggravating the situation.

Figure 8 Farmers are increasingly resorting to precision farming strategies and

micro-irrigation operations. Photograph Harri Mäki, 2009.04.29

Mark Jankielsohn focuses on apple farming under irrigation. He uses pumps to

draw water from the river. He has pastures for sheep and cattle including beef

cattle and he intends to diversify into other activities. He uses sprinklers for

micro-irrigation and he intends to adopt centre pivots in due course because it is

easy to monitor water usage using a centre pivot irrigation system.204 Some

farmers in the area irrigate from private dams and others directly from the

river. His biggest challenge is water – he says he needs more water rights at a

time when some neighbouring farmers are probably illegally irrigating or

misappropriating water. This is compounded by DWA‟s lack of clarity about

203 . JWN Tempelhoff, “Historical Perspectives on Pre-Colonial Irrigation in Southern

Africa,” in African Historical Review, 40(1), July 2008, p. 154.

204 . NOA, Interview: M Jankielsohn (50), Bethlehem, 2009.04.29; Also similar view

of another farmer. See NOA Interview: W Venter (46), Frankfort, 2009.04.30.

55

water rights issues.205 Overall, all the irrigation farmers want more water to

produce food crops.206 Jankielsohn pays Rand Water regularly for his water, but

recently he received water accounts that were back-dated to 2006. This

underlined DWA‟s inefficiency.

Jankielsohn says there are no irrigation boards in this area. For him, Clarens

farmers need an irrigation board similar to the Orange River Farmers Board to

enable them to have a voice. He is a member of the Clarens Farmers Union which

falls under the Free State Farmers Union which is affiliated to Agri SA. He also

belongs to a union called Global Gap. He says there are international irrigation

policies in place but South Africa has no national irrigation policy as farmers

simply „do their own thing‟.207 Generally, he feels that the lack of proper planning

on the part of government is hampering farming activities in the country. The

situation is worsened by DWA who are not open and transparent in addressing

farmers‟ needs.208

Generally farmers in the Liebenbergsvlei area do not receive any support or

irrigation subsidies from the government. Jankielsohn wondered if the

government wanted the farmers to stay on the land. The government should also

intervene on behalf of the farmers and force the big fertiliser companies to

reduce the exorbitant prices they are charging. The state should also regulate

fertiliser prices and help promote irrigation farming.209 Similar to the other

farmers, Mr Theuns du Randt‟s biggest challenge is the fact that grain prices,

compared to the input cost, are very low. He usually delivers his wheat to the

market in December but because of unfavourable prices he tries to hold his crop

back until the price is good.210

Du Randt, whose father was one of the first irrigators in the district in 1964,

derives his water (about 360 000 m3 per year) from the Liebenbergsvlei River

using pumps. The cost of pumping due to rising electricity tariffs increases

every year. He gets billed annually by DWA for the water he uses. The

department just sends him the bill (water account) despite the fact that there

are no meters any more.211 DWA estimates how much water a farmer needs and

for what crops, and on this basis allocates water to a farmer. He has no

problems in paying for his water and his rights are legal. Nevertheless, he

questioned whether other farmers had legal water rights. Du Randt has rain

205 . GCOA, Interview: S de Jager (37), Frankfort, 2009.04.28.

206 . NOA, Interview: M Jankielsohn (50), Bethlehem, 2009.04.29.

207 . Ibid. See also GCOA, Interview: J Nel (49), Reitz, 2009.04.28.

208 . GIOA Interview: M Jankielsohn (50), Bethlehem, 2009.04.30.

209 . NOA: Interview: M Jankielsohn (50), Bethlehem, 2009.04.29.

210 . NOA, Interview: T du Randt (38), Bethlehem, 2009.04.29.

211 . Some farmers, for example, Mike Thomas complained that no one from DWA

actually came to read their water meters. See MHOA, Interview: M Thomas

(38), Frankfort, 2009.04.30.

56

meters to measure how much water he uses for irrigating his potatoes. Similar

to other parts of the Free State, there are no farming/irrigation boards in his

area. However, he is a member of the local Waterbron Farmers‟ Association. He

is worried that if the water is taken away there will be many job losses,

especially to the potato harvesters. Ideally, he would prefer to use the drip

system of irrigation because it uses less water (efficient and economic).

However, this system is more labour intensive especially when it comes to laying

the system. On the other hand, drip irrigation‟s disadvantage is that you cannot

extensively wash the chemicals from the soil. At the moment he utilises micro

irrigation and centre pivots which use up a great deal of water.212 Other types of

irrigation could be considered as possible alternatives.

Pieter Potgieter grows maize after relinquishing lucerne (a leguminous fodder

plant) which is a water intensive crop. He seems to have been duped by Water

Affairs to abandon lucerne. They told him that the water he needed to irrigate

15ha of lucerne was the same amount of water he would need to irrigate 80ha of

maize but he continues to get more bills than can be reasonably expected.213 He

complains that farmers are receiving bills from DWA for water they didn‟t use.

He has actually registered a dispute with Water Affairs for an overcharge of

R3 000 for land he is not irrigating. He needs R5 000 per month to pump water

from the river to the fields which are a kilometre away from the water source.

Irrigating beyond a one kilometre radius is difficult and expensive.214 For

example, R750 000 to R1 000 000 is needed in order to set up a proper

irrigation system. The mother irrigation line in particular is very expensive to

install if the distance from the river to the fields is long.

13. Controversial issues: ‘Adding up the numbers’

Hydrology is an important discipline for comprehending what precisely is

happening in terms of irrigation in the Liebenbergsvlei River catchment.

Although this project was conducted within the framework of a qualitative

interpretation of Lesotho Highlands‟ water and irrigation on the Liebenbergsvlei

River, the researchers were frequently informed on strategies used in the

measurement of water quantities. Consequently, members of the team made a

point of taking note of numbers and certain statistics that could be of relevance

in the development of a bigger picture.

212 . NOA, Interview: T du Randt (38), Bethlehem, 2009.04.29.

213 . NOA, Interview: P Potgieter (38), Frankfort, 2009.04.30.

214 . GOA, Interview: S de Jager (37), Frankfort, 2009.04.28.

57

Actual quantity extracted from the Liebenbergsvlei River

The estimated amount of water, illegally extracted from the Liebenbergsvlei

River is said to be about 10,8 million m3/annum, according to the report of 2002

by Schoeman & Associates.215 According to Mr Francois Joubert the chances are

that the consumption of water could have increased. His statement is based on

the most recent satellite images acquired for the period 2007.216 It is estimated

that the total unlawful use of water in the Upper Vaal River catchment area is

currently 180 million m3/annum.217 Then unlawful extraction, based on the 2002

findings of Schoeman & Associates, could be as little as 5-6 per cent of the

total for the Upper Vaal River catchment. It is uncertain to what extent the

consumption has increased since 2002.218 The jury is still out on precise

figures.219 A more exact estimate may be possible once the verification of water

use has been completed for the whole water management area.220

Production rate of crops under irrigation

The role that irrigation has played in the production of maize in the Eastern

Free State has been primarily one of increased production rates and crop

reliability. In some areas irrigated maize lands can yield as much as 10 tonnes

per ha.221 It is estimated that without irrigation, maize crops could drop to as

little as 4-5 tonnes per ha. Maize remains the most common crop produced under

irrigation. It makes up about 29,6 per cent of the total production. Wheat and

pastures respectively contribute 28,4 and 22,8 per cent. The top three crops

collectively make up 80,9 per cent of the total crops.222

Just how productive and profitable is apple farming?

In a number of interviews farmers explained that they had been literally forced

by the marketplace to diversify their farming operations. Some ventured into

215 . Data provided by Mr Francois Joubert of Schoeman & Associates on 2009.08.19.

The total amount of possible unlawful water use in the whole Upper Vaal River

management area is considered to be 180 million m3/annum, according to him.

216 . Ibid.

217 . E Tempelhoff, “Meer slaankrag vir Blou, Groen skerpioene: omgewingshowe kom

dalk terug” in Volksblad, 2009.05.20 at

http://152.111.11.6/argief/berigte/volksblad/2009/05/21/VB/6/etskerpioene_1

520.html (Accessed 2009.05.24).

218 . TOA, Interview: W van der Westhuizen (54), Director Strategic asset

management of the department of water affairs and the environment (DWA ),

NWU, Vaal, 2009.05.21;

219 . TOA Interview: F Joubert (43), (GIS expert on Liebenbergsvlei River water),


220 . Ibid., Telephonic interview with Mr Francois Joubert on 2009.08.19.

221 . TOA, Interviews: JJ Pretorius (50), Frankfort, 2009.04.30; and Interview: M

Thomas (38), Frankfort, 2009.04.30.

222 . Executive summary, Liebenbergsvlei 2002 report by Schoemen & Vennote,

Report to DWAF, 2002.



58

the hospitality industry, establishing guest houses on their farms. Others

started game farming, creating tourist opportunities and a lucrative income

from overseas trophy hunters. Then there are the apple farmers. Whilst their

operations are clearly highly effective in terms of water consumption, it is an

open question how much benefits there are in this endeavour. The British non-

governmental organisation Oxfam in 2004 found that a considerable proportion

of the 500 000 tonnes of apples imported by the United Kingdom annually, came

from South Africa. The South African farmer receives only 4 per cent of what

the customer in the United Kingdom pays for the apples. Farm labour absorbs

only 5 per cent, while inputs, such as pesticides and fertilizer take up 17 per

cent. Transport, shipping and customs comprise 23 per cent while the importer‟s

commission amounts to 7 per cent. In the end the supermarket in the United

Kingdom takes 42 per cent of the product‟s retail price.223 The picture becomes

even more confusing when we consider the amount of water that is generally

required to produce a single apple. From the current estimates it appears as if

one apple requires 70ℓ of water until its ready to be purchased by the

consumer.224 What is in effect happening is that valuable water from the

Lesotho Highlands is being exported to the Northern Hemisphere, at a fraction

of the real cost of the imported water required to produce a crop that is only

partially accessible to South African consumers. Ethically it becomes even more

questionable when part of the water used was extracted unlawfully.

Statistics of the water footprint of a variety of products – based on dedicated

data from different countries in all parts of the world – are freely accessible on

the internet.225

Riparian farms and lands under irrigation

Schoeman & Vennote were appointed by the DWA Gauteng region to conduct

field surveys on riparian farms along the Axle and Liebenbergsvlei rivers. A

total of 376 properties were surveyed between March and May 2002. The main

focus was to ensure that all water users were correctly registered and to verify

223 . N Myers and J Kent, The citizen is willing, but society won‟t deliver: the problem of institutional roadblocks, (International Institute for Sustainable

Development, Manitoba, 2008), p. 29.

224 . Water footprint Network, “Water footprint: product gallery” at

http://www.waterfootprint.org/?page=files/productgallery&product=apple

(Accessed 3009.07.27).

225 . See AK Chapagain, and AY Hoekstra, „Water footprints of nations‟ in Value of Water Research, Report Series No. 16, (UNESCO-IHE, Delft 2004), Vols 1

(Report) and 2 (Statistical tables).

http://www.waterfootprint.org/?page=files/productgallery&product=apple

59

the extent and lawfulness of registered water uses.226 The surveys undertaken

by Schoeman & Vennote revealed the following:

Initial registration (2001) Field verification survey

(2002)

Number of properties 159 95

Hectares under irrigation

7562 3434

Water abstraction (annual m3)

43 306 876 19 254 137

During the initial registration process a total of 7562 ha of irrigation land was

registered on 159 properties with an annual abstraction of 43 306 876 m3.

Following the field surveys a total of 3434 ha of irrigation was identified on 95

properties with an annual abstraction of 19 254 137m3. This indicated an over

registration of 125 per cent in terms of volume (120 per cent in terms of area).

In terms of volume only 5 per cent of the registration applications were correct

(4 per cent in terms of area). So their estimate in 2002 was 19 million m3.227

For the entire Upper Vaal region the registration process indicated that there

were 103 000 ha of land under irrigation but the available water for irrigation

could only provide water for 23 000 ha of crops under irrigation. DWA clearly

had a huge problem – they had data that they couldn‟t use.

Satellite imaging

DWA, in conjunction with experts in the field developed the South African

Procedure for Estimating Irrigation Water Requirements (SAPWAT)

programme,228 which estimates crop irrigation requirements for crop production

under specific climatic conditions.229 The satellite imaging is based on measuring

the biomass of the crops on the land being irrigated.230 Surveys are, as a rule,

conducted in the winter months. In the summer all the fields look the same. The

226 . Executive summary, Liebenbergsvlei 2002 report by Schoeman & Vennote report

to DWAF, 2002.

227 . Ibid.

228 . For more on SAPWAT and its application in determining water use, see

Department of water affairs and forestry, Republic of South Africa, A guide to

verifying the extent of existing lawful water use, ([Edition 2.1], Department of

water affairs and forestry, Pretoria, November 2006). For more information

also see Water Research Commission, SAPWAT at http://www.sapwat.org.za/

(Accessed 3009.07.27).



NWU, Vaal, 2009.05.21.



http://www.sapwat.org.za/

60

biomass evaluation data is manipulated in such a manner that even in winter when

a dry wheat land is scrutinised it is manipulated to show out the high biomass as

green. Red and near infrared are used to make the analyses. Vegetation absorbs

red and reflects infrared. The difference makes it possible to determine where

the highest vegetation intensity is present on the land.231 However, SAPWAT

programme is „not sufficiently robust that it can stand up to the law in court‟.232

A crucial factor, if and when SAPWAT is used for legal purposes, is the

requirement of the operator of the programme to be fully proficient in the

operations of the system and also well-informed on agricultural matters.233

Metering

Currently one of the major issues up for consideration is the introduction of a

metering system in the Liebenbergsvlei River. Water metering was discussed by

the advisory committee in 1991 – long before the water of the LHWP started

flowing into the Vaal Dam. At the time control strategies, in terms of Section

62 9B (1c) of the Water Act of 1956 were considered by some of the advisory

committee‟s members as a better alternative. The reasoning was that the

frequency of officials‟ visits to properties would be limited. Furthermore, the

arrangement enabled DWA to have fewer officials in the field.234 Other

members of the committee argued that this arrangement could have an effect

on all water users in times of drought. It was important to draw specific lines of

distinction between the types of users (industry, municipal consumers and the

agricultural sector).235 The matter was then left. The committee did not make a

final recommendation on metering.

There are a number of queries in administrative circles. Some DWA officials are

of the opinion that metering is a better strategy, while cynics in other quarters

have serious reservations. Some current questions are: Who has to pay for the

measuring device? What happens if the meter fails? What happens if it is

sabotaged? Consequently the understanding is that the water consumption

measurements would be interpreted in conjunction with energy (electricity)

231 . Ibid.



NWU, Vaal, 2009.05.21.

233 . TOA Interview (telephonic) Mr Francis Joubert, Schoeman & Associates,

2009.08.19.



235 . Ibid., pp. 3-4.

61

consumption.236 Other measurable alternatives, such as time metering of pivot

operations can also be taken into consideration.237

The DWA and Schoeman & Associates are working on a strategy to determine

what would be the best form of measurement. It would be possible to measure

water use over time. Alternatively attention can be given to measuring the

surface area under irrigation. In the process, the objective is to get to the

point where a quota system can be quantified. Current thinking has it that an

amount of 7 500 cubic metres of water be allowed per hectare of land per

annum at a fixed extraction rate. This would mean that the farmer is not in a

position to exceed the limit of water that has been extended to a farming unit.

Thus, although the farmer may have an allocation of 50 ha under irrigation, he

may plant 100 ha. However, the chances are that he would then be unable to

irrigate more land than his water quota would allow.238

Confusion about previous rights

The present dilemma is that although the water use may be illegal, there is no

way of effectively managing the system. DWA is unable to allege that the

farmers are illegally extracting water. In terms of the previous water act they

were operating on the basis of water permits that had been granted. The permit

entitled the farmer to install a pump with a specific capacity. It also determined

the rate of extraction. The permit system is no longer in operation under the

new legislation.239

Need for institutional structures to ensure stakeholder collaboration

In all the interviews conducted, farmers were asked to give their views on the

introduction of an organisational structure, similar to a water forum, or if need

be, a water users association, as outlined in the National Water Act, 36 of 1998.

With the exception of one farmer and his manager, all farmers interviewed,

were willing to participate and give their co-operation. Organised agricultural

institutions, such as Free State Agriculture already have structures in place and

have indicated that it would be a priority to collaborate. Mr Schabort de Jager,

a local irrigation farmer is the local representative on the responsible

committee of Free State Agriculture dealing with these matters. Agri SA has



237 . TOA Interview (telephonic) Mr Francis Joubert, Schoeman & Associates,

2009.08.19.

238 . Ibid.

239 . Ibid. Current thinking, according to Mr Walther van der Westhuizen, is to

determine a quantity (quota) of water per hectare, using the SAPWAT

programme for the different quaternary area. This will be used as a guideline to

determine the area the farmer can irrigate. If a farmer is of the opinion that he

can irrigate a larger area then measurement is required (meter, electricity

consumption, hour meter, or a variety of combinations).

62

also indicated that they would be more than willing to participate in well-

organised structures aimed at improving the management of the LHWP water in

the Liebenbergsvlei River that flows down to the Vaal Dam.

14. Reporting back to stakeholders

On 10 July 2009, a meeting was held at Reitz to which all stakeholders were

invited. The objective was to share with all and sundry the preliminary findings

contained in the first draft of the report. Electronic copies of the report had

been sent to a large number of the stakeholder community before the time; the

research team considered this to be important. It was also agreed that the

synthesis that had crystallised out of the information they had provided in the

course of numerous discussions would be shared with the people interviewed.

Figure 10 Part of the audience listening to a presentation at the meeting held in

Reitz on 10 July 2009. Photograph: Harri Mäki.

Almost 30 people attended the meeting. Of particular importance was the fact

that so many farmers took the time to leave their farming activities and drive

over to Reitz for the deliberations. A representative of DWA, Mr Mike

Mokgwabone, the new regional manager, also attended the meeting and was given

the opportunity to address the audience. He indicated that DWA wanted to

collaborate with the farmers and work towards finding a solution to existing

problems.

63

Three presentations were made by members of the research team. Prof. Johann

Tempelhoff provided a historical overview of developments along the

Liebenbergsvlei River since the 1970s. Claudia Gouws spoke about the farmers‟

perspectives in respect of the alleged unlawful abstraction of LHWP water for

the purposes of irrigation. Martin Ginster discussed the issue from the

perspective of stakeholder communities in Gauteng and that of DWA.

Figure 11 A member of the research team addressing the meeting at Reitz.

Photograph: Dr Harri Mäki.

There was considerable participation in the discussions that followed the

presentations. Mr Gerhard Smit, an attorney from Frankfort, who has had many

dealings in water issues on behalf of the farming community, spoke extensively

on the matter. He suggested that consideration should be given to the

mobilisation of forces to take DWA to court over a comprehensive spectrum of

issues. In particular, on matters pertaining to the Liebenbergsvlei River and

irrigation farming activities, he was adamant that the farmers had a strong

case. They had not been compensated properly. Mr Smit later entered into an

extensive debate with one of the members of the research team, Ms Ruth

Mathipa, who questioned him on claiming the right to argue that water which

belonged to all South Africans, could summarily be taken, without permission, by

irrigation farmers along the Liebenbergsvlei and Wilge rivers.

Of particular importance was the statement by Mr Smit, supported by a number

of farmers, to the effect that they had been informed beforehand by the

64

survey team that followed the 2000 DWA notice, to submit larger quantities

(higher than those actually used) of water consumed for irrigation purposes.

The meeting was notable for the fact that there was a marked degree of

consensus. The participants were of the opinion that there was a need for

planning towards the establishment of a water forum in which stakeholders

could sit and discuss problems.

One of the farmers, Mr Johann Claassen, said that the farmers were not

unwilling to comply with the stipulations of the authorities. They simply wanted

effective service and the opportunity to make progress in their general farming

operations. He also pointed out that the „explosion of 1998‟ was directly caused

by DWA.

The matter of food security was touched on by several speakers. There was

general agreement that this issue needed consideration, but against the

backdrop of the legitimacy of water consumption for irrigation purposes. It was

apparent from the general prevailing atmosphere that the farmers, like officials

of the state, were concerned about the issue and they wanted to communicate

with each other. However, there was also a sense of cynicism about whether

DWA would respond to this opportunity to create a platform for effective

participatory management of the water resource. Of particular importance was

the articulated pre-condition that finding a solution to the apparent deadlock

between DWA and the farmers would have to be a matter of give and take. All

parties had to be heard. Attention had to be given to a number of issues from a

variety of perspectives.

The meeting spontaneously appointed Mr Schabort de Jager, a Frankfort

irrigation farmer and member of Free State Agriculture‟s committee on water

affairs, to take the leadership in the initiative. A potential first meeting date

was suggested towards the end of August 2009. Mr De Jager indicated that he

would communicate with all stakeholders.

The NWU research team was asked to be part of the deliberations and to

provide advice in the setting up of a local water forum. The structure of the

forum, or forums, was to be discussed at a future meeting of the stakeholders.

65

15. Conclusion

Of particular relevance to the discussion and on coming to some form of

comprehensive understanding of the issue, is the following quotation:

The New (National) Water Act emphasised the efficient use of water but

looked at it too narrowly and placed less emphasis on water security as a

whole. So a farmer irrigating efficiently in the upper Vaal is protected by the

Act but actually irrespective of how efficient his water use is it shouldn‟t be

allowed as it compromises the water security from the Vaal. Here the law is

weak to support water security.240

The unlawful use of water by irrigation farmers in the Upper Vaal region has

been identified as a major risk to the Vaal water supply scheme. The message

from the water resource planners is very clear that despite the good rains over

the past few years the demand for water from the Vaal system is exceeding its

capability to supply water in an ongoing sustainable way. This is not the first

time that the Vaal system has been stressed. Nor will it be the last. Water use

by agriculture in the Upper Vaal region has been a contentious issue for a

number of years.

It seems as if unlawful water use is taking place throughout the country.

However, water abstractions along the Axle and Liebenbergsvlei rivers are a

unique situation. A notable difference between water abstraction from this

source and that from other rivers in the Upper Vaal is that in the case of the

Axle and Liebenbergsvlei rivers an unusually large and unnaturally abundant

quantity of water is constantly transferred from the outflow from the Lesotho

Highlands Project to the Vaal Dam. It is highly plausible to suspect unlawful

abstraction of water from this system. The flow is unusually large; it is

continuous with little noticeable seasonal variation in the flow. Furthermore,

the quality of water is very good.

Not all water use in the Liebenbergsvlei River catchment is unlawful. The

process to distinguish between lawful and unlawful water use is described in the

National Water Act, No. 36 of 1998. This is typically a matter that needs to be

discussed before implementation starts. The process provided for in the Act to

determine the lawfulness of water use is complex. There are stages along the

process where delays – deliberately induced or otherwise – can occur. The

process to verify the lawfulness of water use is the first step in the process to

the compulsory licensing of water use.

240 . Comment by Mr Hennie Smit, acting regional head of DWA in Gauteng, to Martin

Ginster at a water sector leadership group meeting, Riviera on Vaal, Vereeniging,

2009.06.18).

66

There appears, at present, to be no institutionalised blueprint to bring all

stakeholders into an integrated water management plan. In all the irrigation

schemes in South Africa legislative provision has been made for consultative

structures of communication and management of the available water supply. For

example, irrigation schemes typically have water users‟ associations (WUAs). In

urban areas where the stakeholder population is diverse, provision has been

made for sub-catchment forums. In the case of the Liebenbergsvlei River, an

institution resembling a form of interactivity between the department of water

affairs and the farming community does not appear to exist.

During the registration process that started in 2000, most farmers tended to

differ significantly over estimating water use as compared to the preliminary

validation estimate determined by the department.

In the report the objective was to be provocative and consider the issues of

unlawful extraction of water from the perspective of „unlawful‟ action or simply

anarchy. Somehow anarchy does not fit the bill. It is difficult to think of

farmers who play an important role in the local communities and are considered

by many to be role models for the next generation of inhabitants of the region,

as being people operating clandestinely outside of the law.

The researchers were given the opportunity, in the course of the interviews

they had the privilege of conducting, to form an impression of the type of

people the farmers are. They were also able to get some insight into the

frustrations of the competitive environment which farmers, as industrialists in

their own right, experience daily. Most of those in the Liebensbergsvlei area are

third generation farmers. Their perspectives on irrigation, their dealings with

DWA and the manner in which they have to respond to demand for greater

equity in terms of land tenure are all factors that need to be taken into

consideration if and when plans are mooted to effectively manage the water

supply flowing to the Vaal Dam.

There is definitely a need to thaw the frosty relations between DWA and the

farmers. There seems to be a great deal of antagonism between the two parties.

There must be a clear irrigation policy and strategy for implementing that

policy. The government should create an enabling environment that helps

farmers forge ahead with production unobstructed. The issue of subsidies

should be given consideration. The importation of maize and wheat from abroad

does not make sense in a country that has farmers who have the capacity to

feed the nation.241 The government should come up with production incentives,

price incentives and other plans that will assist the country in boosting irrigation

development. Dependency on imports is counterproductive in the longer term.

The announcement of pre-planting prices should as far as possible be done early

enough to influence farmers‟ decisions on what crops to plant and in what

241. MSOA, Interview: J Nel (49), Reitz, 2009.04.28. See also notes of same

interview in NOA.

67

quantities they want to grow these crops for a particular season. It can be

observed that many farmers complain about the low prices maize and wheat are

fetching on the market; if this is so, why continue growing these crops if they

are not lucrative? Why not diversify into other fields?

The situation along the Axle and the Liebenbergsvlei River is an example of

South Africa‟s excellent legislation, benchmarked by many countries of the

world, not coming into its own right. Innovative strategies, such as that

contained in the latest edition of Water for growth and development could well

go to waste. It is in this light, imperative for DWA to improve its institutional

capacity for policy development, communication and implementation. This is vital

if the high level recommendations of Water for growth are to be realised.242

Race plays a part in the debate on agricultural water use in the area. It appears

that there are only white farmers operating along the Axle and Liebenbergsvlei

rivers. Black farmers are aware of the unlawful water use that is taking place. It

seems to be an issue they feel comfortable to criticise without fear of

implicating the black farming community. However, there is an awareness that

black farmers would probably also exploit this water if they were in a position to

do so.

Finally, water use along the Axle and Liebenbergsvlei rivers remains a

controversial matter. While the DWA have usable regulations in place to

address unlawful water use, they don‟t seem to be succeeding in curbing this

practice. The effectiveness of the regulatory measures available to the DWA

can be questioned. A lack of sound administrative action has also contributed to

the impasse. An accurate measurement of actual water use has still to be

determined but this will only be available once the formal verification of water

use has been completed. Indications are that compared to the registration

process the actual water use is likely to be lower than the current estimate.

Agricultural water use needs to be responsibly undertaken to ensure that the

scarce resource is utilised to the best possible benefit of the entire region.

242 . Department of water affairs and forestry, Water for growth and development

framework (Version 7, DWA, 2009) at

http://www.dwaf.gov.za/Masibambane/documents/watergrowth/WFGD_Framew

orkv7.pdf (Accessed 2009.07.08).

http://www.dwaf.gov.za/Masibambane/documents/watergrowth/WFGD_Frameworkv7.pdf

http://www.dwaf.gov.za/Masibambane/documents/watergrowth/WFGD_Frameworkv7.pdf

68

16. Recommendations

Finally, members of the research team were asked to make a number of

recommendations. Their views have been informed by doing fieldwork; discussing

the issues within the group; fiercely debating standpoints internally; and

contemplating matters in their respective practical and research fields of

expertise. A selection of 18 recommendations, are listed below. There were

many more, but those provided here, convey the essence of the researchers‟

thoughts on the way forward.

1. Establish a water forum, irrigation board or a similar, but functional

institutional arrangement that is acceptable within the framework of the

National Water Act, 36 of 1998. There is a definite need for more contact

between farmers and DWA. It seems that there is a great deal of mistrust

towards DWA amongst the farmers. Officials of DWA clearly do not

understand the mental landscape of these farmers, who are for the most

part wondering how they are going to survive the season. They cannot make

plans based on the fact that they might perhaps receive their water licences

some time in the next five, ten or even fifteen years. This issue needs to be

addressed as a matter of urgency. In turn there should be an understanding

on the part of the farming community for the comprehensive planning

framework developed by DWA in collaboration with all stakeholders. It is in

the national interest that policies, strategies and plans are understood

locally.

2. Make sure that all stakeholders understand that the Lesotho Highlands

Water Project (LHWP) was originally introduced and executed with the

specific objective of securing water supplies to domestic and industrial

consumers in Gauteng and certain neighbouring provinces. This remains the

primary objective of the scheme. The LHWP leaves an environmental

footprint that deserves serious attention in social, economic and political

contexts. It is expensive water and all these diverse implications should be

taken into consideration when planning is underway between stakeholders.

3. There are dangers of exploitation of the situation by external factors. It

seems that lawyers and consulting firms are earning considerable incomes

out of the confusion and mistrust between the farmers and DWA. The

sooner a forum can be up and running to streamline communication, the

better for all concerned.

4. Remove lawyers from the permutation. Let stakeholders first talk and seek

workable solutions.

5. Build farmers‟ trust.

69

6. There should be collaboration and an end to the antagonistic relationship

between DWA and the irrigation farmers. The thawing of relations between

the two is urgent and is highly recommended.

7. Transparency of the water resource planning process is essential. The

department should demystify the water resource planning process for the

Vaal system. The department is also too busy to record this knowledge – this

is particularly the case with senior people within the directorate of water

resource planning who will be retiring within the next few years.

Furthermore, a system as large and as important as the Vaal system should

have a calculated yield and weekly forecast available on a website; this

should be accessible to all interested parties.

8. Consider the case (correctly) made by farmers on matters such as:

a. Ineffective water use in Gauteng (golf estates, physical losses, etc.);

b. Awareness;

c. Measurement and monitoring; and

d. The role of economic incentives/disincentives.

9. Food security is admittedly an important issue in South Africa. It deserves

considerable attention. However, it has been suggested by some members of

the research team that irrigation farming along the Axle and Liebenbergsvlei

rivers is not critical to achieving food security for the country.

10. DWA should come up with some method for measuring the amount of water

used for irrigation. And if there are water meters installed somebody should

take care that they are in working order; a DWA employee should read them

regularly.

11. It was naive to imagine that all that LHWP water was simply going to flow

past those farms without local farmers making some claim on it. While

agreements were signed, dams built and waterways constructed, irrigation

farming should have been at that table too – right from the initial stages.

With the new phase of the LHWP under way, the lessons of experience

should be carefully contemplated. Institutions representing irrigation

farmers in the area (hopefully their own forum) should be present when

allocations are discussed. This will avoid the situation of unlawful use and

general confusion in the future.

12. A suggestion made at the stakeholders‟ meeting at Reitz on 10 July 2009 to

the effect that farmers should be allowed to irrigate when the dams are

full, was an interesting suggestion. Should irrigation be allowed depending on

the level of water in the Vaal Dam? Members of the research team were

initially uncomfortable with this suggestion because the yield of the Vaal

system, is not simply a factor of the water level in the Vaal Dam, but

depends on a complex determination of the system‟s supply capability. Even

with the dams full, the water resource planners have been saying that the

70

demand from the system is exceeding its supply capability. However, the

suggestion does have merit as the reverse to water restrictions. In the

National Water Resources Strategy the assurance of water supply of each

sector is provided. Agriculture does receive its allocation at a lower

assurance of supply (about 70%) compared to say Eskom (99.5% assurance of

supply or up to a 1 in 200 year drought event). Eskom (and Sasol) are paying

for this security. There are cases where there are excesses in the system

which could be temporarily allocated to irrigation („temporary water use

expansion‟ might describe the opposite to „water restrictions‟). DWA would,

most probably, not like the idea, but it may just have some merit. Obviously

a big factor would be how effectively one could measure the changing yield

of the Vaal system and determining fair allocations which would continuously

change. This is possible – there is a system being piloted on the lower

Orange River about which a member of the research team has information.

In this situation, should there be a rain event upstream of the irrigation area

then an online real time water allocation model is run and the farmer gets an

SMS indicating the extra allocation he/she is able to irrigate at a certain

time. It‟s a case of use it or we lose it to the ocean. The Upper Vaal is not

exactly a similar situation, however, because all the water in the upper Vaal

that is captured gets used downstream in one way or another.

13. The issue of subsidies should be given paramount consideration irrespective

of what black and white farmers think about this. There could be alternative

strategies that would be more effective over the longer term. These should

be discussed and shared by all stakeholders before government starts taking

remedial steps.

14. The importation of maize and wheat from abroad does not make sense in a

country that has farmers that have the capacity to feed the nation. The

government should come up with production incentives, price incentives and

other ideas that will assist the country in boosting irrigation development.

Dependency on imports is counterproductive in the long term.

15. It could be observed that many farmers complain about the low prices maize

and wheat are fetching on the market. If this is so, why continue growing

these crops? If they are less lucrative why not diversify into other fields?

16. If irrigation agriculture is over-supplied given other needs for this water, a

way has to be found to limit use according to farmers‟ realistic needs. It is

prudent for every water user to be honest and pay for the water according

to their use but DWA should put its house in order to facilitate this. Water

pricing laws should be meticulously but fairly applied to all the irrigation

farmers. Unlawful irrigation should be curbed.

17. The Eastern Free State area has traditionally been more viable for dryland

farming, but irrigation farmers are now out-competing dryland farmers. The

growing of maize and wheat under irrigation is clearly not the most viable

71

thing to do in this area. Selected alternative crops could perhaps be grown

under irrigation in the area.

18. If attempts at resolving the problem are unsuccessful, consideration should

be given to the installation of a complete water pipeline system from

Lesotho.

17 Postscript

At a special meeting held at Reitz on 26 August 2009 a group of farmers under

the chairmanship of a local farmer and committee member of Free State

Agriculture, Mr Schabort de Jager, decided to appoint a steering committee to

consider the establishment of a water users association in terms of the National Water Act, 36 of 1998.

72

Addendum 01. Section 35 Process: Application for the

verification of existing lawful water use

73

Addendum 02. Section 35 Process: Directive to stop/reduce

abstraction storage

74

Addendum 03. Section 35 Process: Notice to provide further

information

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