Overview

On 24 April 2026, Minister of Water and Sanitation Pemmy Majodina published Government Notice 7408 (the Notice) in Government Gazette No. 54575 under the National Water Act 36 of 1998 (NWA), read with Regulation 3(b)(i) of the Water Use Registration Regulations (GN R1352, Government Gazette 20606, 12 November 1999). The Notice calls on all unregistered water users to register their section 21(a) and section 21(d) water uses within 90 days of publication.

The deadline is 23 July 2026. Non-compliance is a criminal offence carrying a fine or imprisonment of up to five years.

The Notice affects a wide range of commercial water users, including agricultural operators, industrial facilities, property owners who have acquired or restructured their businesses since initial registration, and lessees. For mining operations, however, the Notice carries particular weight: the sector is among the most water-intensive in the country, mining companies routinely hold or utilise water resources under section 21(a), and a failure to maintain accurate and current water use registrations has direct consequences for operational continuity, regulatory compliance and the commercial soundness of mining transactions.

Purpose

The Notice represents the DWS’s most direct effort in recent years to restore the integrity of the Water Authorisation and Registration Management System (WARMS), the national water use registration database. Accurate WARMS records are, in the DWS’s own formulation, essential for understanding the “who“, “what” and “where” of water use, which underpins water allocation decisions, catchment management, infrastructure planning and long-term water security.

Who Is Affected

The Notice defines seven categories of unregistered water users for its purposes. The categories are deliberately broad, and many businesses may be captured without having identified the gap themselves:

1. Property purchasers: water users who bought property from a registered water user but never notified the responsible authority of the change of ownership.
2. Land restitution beneficiaries: water users who acquired property through a land restitution process where the change of ownership was never reported to the responsible authority.
3. Lessees: water users leasing on the property of another water user or landowner where the owner did not register the water use.
4. Changed contact details: water users who have changed their postal address, physical address, email address, telephone or cell phone number without notifying the responsible authority.
5. Name changes: water users who have changed their registered name without notifying the responsible authority (this captures mergers, restructurings and name changes in the corporate holder).
6. Commercial borehole users: water users who operate boreholes for commercial purposes but have not registered those boreholes with the responsible authority.
7. Agricultural-to-industrial users: water users who registered their agricultural water use but never separately registered their resulting industrial water use.

For the mining sector, the most practically significant categories are those involving changes in the corporate holder (name changes, acquisitions, restructurings), commercial borehole use and the failure to register industrial water use separately from any underlying agricultural authorisation on the same property.

What The Notice Covers And What It Does Not

The Notice is expressly limited to two categories of water use under section 21 of the NWA:

1. Section 21(a): the taking of water from a water resource, including rivers, boreholes and dams. This is the most common form of water use in mining operations.
2. Section 21(d): stream flow reduction activities, being large-scale commercial afforestation and other activities designated under section 36 of the NWA.

The Notice does not apply to water storage (section 21(b)), the impeding or diverting of watercourse flow (section 21(c)), irrigation with wastewater (section 21(e)), controlled activities (section 21(f)), waste disposal (section 21(g)), reconnaissance (section 21(h)) or alterations of beds and banks (section 21(i)). Registering under the Notice will therefore not address all potential regulatory gaps that a mining operator or landowner may have across the full range of section 21 water uses.

Mining operations that abstract water from underground aquifers or surface resources are directly captured by section 21(a). A mine that has changed ownership, been restructured, or has been operating with contact details that no longer reflect the current entity is squarely within the Notice’s scope.

Exemptions And Their Limits

The Notice exempts two categories of water user from registration:

1. Schedule 1 users: reasonable domestic use, small-scale gardening not for commercial purposes, and the watering of animals — categories that are not material to commercial mining or industrial operations.
2. Water user association members: water users falling within the area of operation of a Water User Association (WUA) are exempt, except that any commercial borehole must still be registered with the responsible authority regardless of WUA membership.

The WUA exemption requires careful scrutiny. The NWA established WUAs under Chapter 8 as statutory successors to irrigation boards, with a transitional period intended for irrigation boards to convert. That transition remains materially incomplete. Many irrigation boards continue to operate in practice without having formally converted to WUAs. Water users who are relying on an unconverted irrigation board for the basis of an exemption are in a less settled legal position than those operating under a properly constituted WUA.

Registration Is Not A Clean Bill Of Health

A critical aspect of the Notice that is easily overlooked is that registration does not confirm the lawfulness or the volume of a water use. Registration opens the door to regulatory scrutiny, not to legal protection.

Under section 35 of the NWA, a registered water use is subject to verification by the responsible authority. During verification, the authority may determine that the water use is unlawful, or lawful only to a lesser extent than claimed. A user whose historical use is found to be unlawful, or whose claimed volumes cannot be substantiated, may face limits on what it may continue to do. A user who fails to apply for verification when required, or whose application is refused, may lose the right to continue that water use entirely.

Beyond verification, section 43 of the NWA provides for compulsory licensing, a process through which the responsible authority may require water users in an area to apply for licences, which are then granted (or refused) in accordance with the section 27 allocation criteria. Compulsory licensing has historically been used sparingly, but the Department’s expressed preference for licensed use over existing lawful water use (discussed further below) suggests that the registration exercise is, at least in part, a mechanism for identifying uses that can subsequently be drawn into the compulsory licensing process.

Mining operators with historical water uses that have not previously been subject to regulatory scrutiny should carefully assess the defensibility of those uses before submitting registration applications. The information disclosed in the application may itself trigger a process with consequences extending well beyond the registration exercise.

Practical Significance

Water users, landowners, mining companies and their advisers should take the following steps before the 23 July 2026 deadline:

1. Audit existing WARMS registrations. Confirm that the registered water user name, ownership details and contact details in WARMS accurately reflect the current legal entity and its registered particulars. Name changes, ownership transfers and restructurings that were not reported to the DWS must be corrected using Form DW811.
2. Identify unregistered commercial boreholes. Any borehole used for commercial purposes that is not currently registered must be registered under the Notice, regardless of WUA or irrigation board membership. Mining, processing and industrial operations relying on borehole abstraction should audit their borehole inventory against registered uses.
3. Assess the agricultural-to-industrial registration gap. Where operations have evolved from or are conducted on land with an historical agricultural water registration, the industrial component of abstraction must be separately registered if it has not previously been. This is particularly relevant for mining operations on farms or agricultural land.
4. Test the WUA/irrigation board exemption carefully. Do not assume that membership of an irrigation board that has not converted to a WUA provides the same exemption as WUA membership. Obtain specific advice on whether the exemption applies before treating water use as exempt from the Notice.
5. Assess legal defensibility before registering. Registration under the Notice subjects water use to verification under section 35 of the NWA. Water users with historical, unscrutinised uses should assess the defensibility of those uses before making disclosures, because the registration may open a process with consequences extending beyond the registration exercise itself.
6. Integrate with water use licensing strategy. Registration submissions should be aligned with the entity’s broader integrated water use licensing and compliance strategy, including any pending WUL applications, general authorisation positions and catchment management obligations.
7. Factor the Amendment Bill into transaction structuring. Buyers, sellers and financiers in mining transactions should treat the Amendment Bill as a live risk in deal structuring, particularly on the question of whether water entitlements can be transferred to an acquirer and whether the Amendment Bill’s “use it or lose it” principle affects the value of entitlements associated with the target.

How Bishop Fraser Attorneys Can Assist

Water use authorisation, compliance and water law are integral components of Bishop Fraser Attorneys’ mining and environmental law practice. We advise mining companies, landowners, agricultural operators and financiers on:

• reviewing and auditing existing WARMS registrations and identifying gaps requiring correction or fresh registration under the Notice;
• preparing and submitting registration applications using the appropriate DWS forms, including DW811 amendments and DW760 new-use applications;
• advising on the scope and limits of the WUA and Schedule 1 exemptions, including the legal position of unconverted irrigation boards;
• assessing the legal defensibility of historical water uses prior to registration, including the risk of verification under section 35 and compulsory licensing under section 43 of the NWA;
• advising on the interaction between section 11 MPRDA transfers and water use registration obligations in mining transactions;
• structuring mining transactions in light of the proposed Amendment Bill reforms, including the proposed ban on private water trading and expanded ministerial reallocation powers;
• engaging with the DWS on water use licence applications, verification processes and compulsory licensing proceedings in stressed catchments.

The 23 July 2026 deadline is firm. The criminal sanctions for non-compliance are real. And the regulatory direction of travel, towards more intensive scrutiny, compulsory licensing and the potential prohibition of private water trading, is clear. Mining operators and their advisers who act before the deadline will be materially better positioned, legally and commercially, than those who do not.