South Africa’s Race-Based Water Licenses: A Direct Violation of the Constitution

The South African government’s proposed race-based water license regulations have sparked outrage, with many citizens and organizations claiming they violate the principles of fairness and equality enshrined in the country’s Constitution. At the core of these draft regulations is the requirement for farmers to allocate at least 70% of their business’s ownership to a black partner to qualify for a water license. This policy, in conjunction with the Expropriation Without Compensation (EWC) laws, reflects a growing trend of racial quotas that undermine South Africa’s constitutional commitment to equality.

The race-based water license regulations, currently in draft form, require agricultural businesses to meet strict racial quotas for water allocation. Specifically, farmers must ensure that black South Africans hold between 25% to 75% of the shareholding, depending on the water usage. The government defends this measure as a step toward correcting the historical injustices of apartheid, arguing that this is necessary to redistribute access to the nation’s water resources.

However, this approach blatantly disregards the Constitution of South Africa, particularly Section 9, which guarantees equality and forbids discrimination based on race, among other grounds. Section 9(3) of the Constitution explicitly states: “The state may not unfairly discriminate directly or indirectly against anyone on one or more grounds, including race, gender, sex, pregnancy, marital status, ethnic or social origin, colour, sexual orientation, age, disability, religion, conscience, belief, culture, language, and birth.”

South Africa

Waiting to be singed into law:

Race-based water licences.

For a farmer to have his water licence approved, he must allocate 75% and the majorty share holding of his farming business to a black partner.

The South African government and it supporters do not see… pic.twitter.com/ac4DPcK4bR

— AgentLeon (@AgentLeonV3) February 3, 2025

By tying the allocation of water licenses to racial quotas, the government is not only violating the spirit of equality, but it is also directly infringing upon the legal rights of farmers and business owners who do not meet these racial criteria. This policy goes against the Constitution’s promise that “everyone is equal before the law” and that no one should face discrimination on the grounds of their race or ethnicity. The use of race as a determining factor for access to essential resources like water is a direct contradiction to this fundamental right.

Furthermore, when viewed in tandem with the controversial Expropriation Without Compensation (EWC) laws, which seek to allow the government to seize property without compensation, these race-based policies appear to be part of a broader strategy to redistribute assets and resources along racial lines. EWC and the water quota regulations raise significant concerns about the security of property rights, economic stability, and the future of agricultural investment in South Africa.

While the government argues that these measures are necessary for redress and transformation, they risk inflaming racial tensions and undermining the constitutional commitment to a non-racial South Africa. Such laws, under the guise of equality, seem to institutionalize discrimination based on race, effectively resurrecting apartheid-style divisions in a modern context.

The race-based water laws, along with the broader EWC policies, do not align with South Africa’s constitutional principles. The government’s actions reflect a disregard for the rule of law and a dangerous path toward exacerbating racial divisions. The state’s violation of Section 9 of the Constitution is an affront to the foundational values of equality and fairness, which should guide the nation toward a truly inclusive future. As South Africans, we must demand that the government upholds the Constitution and rejects policies that sow division under the guise of redress.