Barbara van Koppen

This paper introduces a socio-economic valuation framework for water reallocation that integrates considerations of equity, efficiency, and sustainability into decision-making. Designed to inform the development and implementation of policy in contexts of water scarcity and historical inequality, the framework systematically incorporates both direct economic benefits and externalities, such as poverty alleviation, food security, and inequality reduction, across different user groups. Applying the framework to South Africa's Inkomati-Usuthu Water Management Area (IUWMA), we demonstrate how it aligns with the country's third National Water Resource Strategy (NWRS-3) and compulsory licensing processes under the National Water Act. Despite data limitations, empirical findings from the case study reveal that reallocating water from large-scale commercial agriculture to historically disadvantaged smallholder farmers could yield welfare gains. The proposed framework offers a practical tool to support inclusive and evidence-based water governance by moving beyond conventional equity-efficiency trade-offs and incorporating non-market benefits.

Heritage and culture not only shape the customary tenure of land and forest resources of most indigenous peoples and local communities in low-income rural areas, but also community members’ mutual relations vis-à-vis their water resources, or, in other words: customary water tenure. Age-old settlement by farm communities or pastoralists’ establishment of nomadic routes vested customary rights to land and the fugitive surface runoff and streams flowing over the lands; soil moisture, wetlands and lakes on the land; and aquifers under the land. In customary water tenure, orally transmitted norms and practices have governed communities’ construction, operation and maintenance of traditional local infrastructure, such as weirs, dams and ponds, to store water as buffer to seasonal variability; wells and lifting devices to tap aquifers, the planet’s largest storage; and canals, tunnels and pipes to channel water where and when needed for drinking, other domestic uses, livestock, irrigation of crops, vegetables and trees, brick making, crafts, small-scale enterprise and ceremonial uses, or to ensure water availability for fisheries and navigation. Customary normative frameworks continue to shape communities’ investments in “modern” low-cost plastic pipes, tanks, small motorized pumps, or solar energy, also responding to growing populations, markets for water-dependent produce, and higher aspirations.

Accurate information on irrigated areas’ spatial distribution and extent are crucial in enhancing agricultural water productivity, water resources management, and formulating strategic policies that enhance water and food security and ecologically sustainable development. However, data are typically limited for smallholder irrigated areas, which is key to achieving social equity and equal distribution of financial resources. This study addressed this gap by delineating disaggregated smallholder and commercial irrigated areas through the random forest algorithm, a non-parametric machine learning classifier. Location within or outside former apartheid “homelands” was taken as a proxy for smallholder, and commercial irrigation. Being in a medium rainfall area, the huge irrigation potential of the Inkomati-Usuthu Water Management Area (UWMA) is already well developed for commercial crop production outside former homelands. However, information about the spatial distribution and extent of irrigated areas within former homelands, which is largely informal, was missing. Therefore, we first classified cultivated lands in 2019 and 2020 as a baseline, from where the Normalised Difference Vegetation Index (NDVI) was used to distinguish irrigated from rainfed, focusing on the dry winter period when crops are predominately irrigated. The mapping accuracy of 84.9% improved the efficacy in defining the actual spatial extent of current irrigated areas at both smallholder and commercial spatial scales. The proportion of irrigated areas was high for both commercial (92.5%) and smallholder (96.2%) irrigation. Moreover, smallholder irrigation increased by over 19% between 2019 and 2020, compared to slightly over 7% in the commercial sector. Such information is critical for policy formulation regarding equitable and inclusive water allocation, irrigation expansion, land reform, and food and water security in smallholder farming systems.

During apartheid, South Africa formalized legal pluralism as territorial and institutional segregation that legitimized the white minority’s grab of most land, water and mineral resources. In the homelands on the remaining 13% of the country, allied tribal chiefs controlled second-class customary land and water rights. Under the democratic dispensation, the new Constitution (1996) and National Water Act (1998) aim at redressing this racial discrimination. However, these goals have not been achieved. Building on literature, field research and ongoing policy and legal debates, this paper traces causes for this failure and examines whether and how a different interpretation of statutory law can decolonize past legal pluralism. A main cause of this failure is the continued power by white large-scale water users and their consultants and lawyers. Monopolizing technical and legal knowledge, they fiercely defend apartheid era’s Existing Lawful Uses by 1998 and relatively easily obtain administrative licences for post-1998 water uptake, while claiming excessive monetary values of entitlements to water resources that the state, with tax payers, as custodian holds. In contrast, black water users’ pre-1998 Existing Lawful Uses have not been defined as yet and burdensome licences processes for new water uptake are inaccessible to the many smaller-scale black water users. The paper concludes that, in former homelands, the legal status of living customary water tenure should be elevated and protected. Inclusive facilitated processes can further clarify the “sharing in” of water resources flowing over or under the communities’ territories inside the boundaries of former homelands, also to enable gradual alignment with constitutional rights. However, in “sharing out” these water resources with powerful third parties, including foreign investors, customary water tenure should be fully protected. As a core minimum of highest priority water resource rights across the country, the current Basic Human Needs Reserve should include all water-related constitutional rights, so also water for sufficient food, and be implemented.

Water-permit systems are widely used across Africa as a blanket requirement for small and micro irrigation enterprises, as well as large enterprises. The present study aimed to, first, further understand the implications of permit systems for both the most vulnerable and the state, and, second, based on the findings, identify options for pro-poor water legislation that also meet the water governance requirements of the state. The growing recognition of the importance of farmer-led irrigation development for food security across the continent underlines the importance of these questions. Focusing on Kenya, Malawi, South Africa, Uganda, Zimbabwe, and other African countries, we found that permit systems criminalized instead of protected the water rights of small-scale farmers. Moreover, little if any attention is paid to the logistical burdens and costs to the state of implementing such systems relative to the intended revenue generation. As many small-scale farmers in Africa were found to operate under customary land and water tenure systems, the study proposes a hybrid system of water rights that formally recognizes such practices, along with the use of permits, including enforcement of conditions for large users, to serve the interests of both the state and small-scale farmers.