In the article below, Bill Harding, specialist consultant in applied aquatic science with expertise in water law, explores the deep legal and philosophical parallels between South Africa’s water and heritage governance.

South Africa’s environmental governance framework is often discussed in fragmented terms. Water law is debated separately from heritage protection. Ecological sustainability is frequently treated as distinct from cultural preservation. Yet beneath these apparently different regulatory domains lies a unifying constitutional philosophy: certain national resources are so fundamental to collective identity, survival and dignity that they cannot be treated as ordinary private property. Instead, they are held in custodianship for the nation as a whole.

Nowhere is this philosophy more clearly reflected than in the National Water Act and the National Heritage Resources Act. Although these statutes operate in different spheres — one ecological and one cultural — both embody a shared constitutional approach grounded in stewardship, public trust and intergenerational responsibility. Understanding this parallel is important not only for legal coherence, but for how South Africans understand the nature of ownership, development and conservation in a constitutional democracy.

At the centre of both water and heritage protection lies section 24 of the Constitution, which guarantees everyone the right to an environment that is not harmful to health or well-being and requires the environment to be protected for the benefit of present and future generations through reasonable legislative and other measures. It bears emphasis that section 24 is entrenched in the Bill of Rights and not merely reflected in ordinary legislation. As a constitutional right, it binds the State directly and provides the normative foundation against which statutes such as the National Water Act and the National Heritage Resources Act must be interpreted and applied.

While section 24 is often associated with pollution control or biodiversity conservation, its reach is far broader. It establishes a constitutional obligation to preserve the ecological and cultural systems that sustain society. The environment in constitutional terms is not limited to natural landscapes; it includes historical and cultural environments that shape national identity, memory and social cohesion.

The National Water Act marked a decisive break from South Africa’s pre-constitutional water law, which tied water rights to land ownership. The Act defines water as a common national resource and positions the State as custodian of this resource on behalf of the public. Individuals may be authorised to use water, but they do not own it. Authorisations are conditional, revocable and subject to public interest considerations.

Despite its central place in South Africa’s water law, the public trust doctrine remains largely unarticulated in regulatory practice. Paradoxically, greater conceptual clarity appears in the National Water Policy White Paper that preceded the National Water Act than in the Act itself. The White Paper described custodianship as an active stewardship responsibility grounded in sustainability, equity and public benefit. When these principles were translated into legislation, however, the Act retained the language of custodianship without providing a procedural or analytical framework through which trust obligations could be applied. Unlike licensing criteria or regulatory procedures, the trust survives in the statute primarily as a foundational organising principle rather than an operational governance tool.

The National Heritage Resources Act adopts a strikingly similar conceptual approach. Heritage resources are recognised as forming part of the national estate — a collective inheritance reflecting the history, memory and identity of the nation. While heritage sites and structures may remain privately owned, that ownership is qualified by broader public interests. Owners of protected heritage properties require approval before demolishing or significantly altering structures, recognising that heritage significance extends beyond individual title to collective cultural meaning.

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Constitution Hill, National Heritage Site (The Heritage Portal)

A key parallel between the two statutes is the transformation of the State’s role from regulator to steward. Custodianship imposes active responsibilities rather than passive administrative oversight. In water law, the State must ensure sustainable resource management, protect ecological systems and promote equitable allocation. In heritage law, the State must identify, protect and conserve cultural resources that define national identity. In both contexts, State authority derives from constitutional obligation rather than proprietary ownership.

Both frameworks are deeply rooted in intergenerational equity. Water governance must ensure that present use does not compromise future supply or ecological integrity. Heritage protection similarly ensures that places of memory, identity and cultural meaning remain available to future generations. Both also recognise that resources exist within broader systems: water protection extends to catchments and ecological processes, while heritage protection extends to cultural landscapes and lived environments.

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Some of the oldest exposed rocks on earch can be found in the Barberton Makhonjwa Mountains, a World Heritage Site (Mpumalanga Heritage)

Neither water nor heritage law abolishes private ownership. Instead, both redefine it. Property rights remain protected but are balanced against collective interests and constitutional values. This reflects a broader constitutional settlement in which ownership carries social and environmental responsibilities alongside private rights.

The parallels between South Africa’s water and heritage laws reveal an emerging constitutional jurisprudence grounded in custodianship. Both recognise that ecological sustainability and cultural preservation are essential to human dignity and societal well-being. Both impose stewardship obligations on the State and limit private ownership in favour of broader public interests.

As development pressures intensify, this custodial framework will become increasingly important. It offers not only legal guidance but a moral vision for how a constitutional democracy balances progress with preservation. Ultimately, South Africa’s constitutional project reframes water, heritage and place as elements of a shared national trust. The challenge lies not in recognising that trust, but in giving it meaningful and practical expression.

Bill Harding has professional experience in water law and environmental governance. He is currently exploring the conceptual and legal connections between water and heritage at the intersection of South Africa’s statutory protection regimes.