Your Legal Duties to the Land: CARA, NEMBA and Water

#Three things you already do are already law

Rest periods. Running more than one kind of animal on the same veld. Cutting numbers when the grass starts going backwards. This course has taught those as good management. They are also law. All three sit in a South African regulation made on 25 May 1984, each carries the word shall, and an official can direct you in writing to do more of them.

Read (a), (b) and (e)(ii) again. Rest, diversity and recovery — three of the principles this course is built on — are already law here. A regenerative grazing plan is not a departure from CARA. It is closer to CARA than the continuous grazing next door.

#The arithmetic that catches almost everybody

Regulation 10 says where the number lives: grazing capacity, in hectares per Large Stock Unit, as shown on a topocadastral map kept at the executive officer's office. Regulation 11 turns it into an obligation — a land user shall restrict animal numbers, expressed as LSU, to no more than veld hectares ÷ the applicable grazing capacity. Then the proviso, quoted exactly:

"Provided that such number may on occasion be exceeded on condition that the veld shall under all circumstances effectively be protected against deterioration and destruction."

Be precise about that sentence. It caps total LSU across the veld of the farm unit — your stocking rate, not how tightly you pack one camp for a day. Whether "on occasion" stretches to a year-round high-density system is genuinely open: no case law, executive-officer ruling or departmental guidance either way could be found. Treat it as an argument you may have to make, not a permission you hold. The reliable half is the second limb — the veld must be protected "under all circumstances" — and the only way to show that is a dated record of veld condition.

The map states its own limits: long-term values for veld in relatively good condition, mapped at 1:250 000, at a utilisation factor of 40–50%, with tree crown cover and browsing capacity excluded. Reg 10(3) is the route to a farm-specific figure where actual capacity differs appreciably — handled by the provincial Resource Auditors, permits issued one year at a time, and any revision substantiated by a veld condition survey by a registered pasture scientist or equivalent.

#The other four regulations in the set

Reg 7 — vleis, marshes, water sponges and watercourses. No land user may use the vegetation in a vlei, marsh or water sponge, in the flood area of a watercourse, or within 10 metres horizontally outside that flood area, in a way that causes or may cause deterioration of the natural agricultural resources. Reg 7(3) forbids draining or cultivating any of those without written permission. Reg 7(2) cuts the other way and requires removal of watercourse vegetation that would obstruct flood flow. Not "don't touch" — "don't degrade, and keep the flood path clear".

Reg 8 — the flow pattern of run-off water. Except on written permission, no land user may divert run-off from one watercourse to another, or create, remove or alter an obstruction to the natural flow pattern where that would cause excessive soil loss. That governs contour banks, waterways, keyline earthworks, brush packs and rock-pack check structures. Reg 8 comes before the spade.

Reg 13 — restoration and reclamation of eroded land. A positive duty: every land user shall restore or reclaim land on which excessive soil loss due to erosion occurs or has occurred. Doing nothing about erosion is not a neutral choice. Know which erosion you owe the duty about: Gauteng carries 347 149 ha at high sheet-and-rill risk but only 110 ha of mapped gully. The donga problem belongs to the Eastern and Northern Cape; Highveld exposure is sheet loss under a bare winter surface hit by a spring thunderstorm, discharged with cover, not concrete.

Reg 16 — bush encroachment. Where the Table 4 indicator plants are present, a land user shall combat encroachment: by uprooting, felling or cutting; by a registered herbicide used strictly per label; by the Reg 9 measures; by reducing livestock under Regs 10 and 11; or by a method the executive officer specifies. A statutory duty, not an option.

#NEMBA: the R5 million plants

The Alien and Invasive Species Regulations, GN R1020 in GG 43735 of 25 September 2020, made under section 97(1) of the National Environmental Management: Biodiversity Act 10 of 2004, replaced the 2014 regulations. (Reg 38 says they take effect within 30 days of publication; the commencement date of 1 March 2021 that is widely repeated could not be confirmed — check with DFFE.)

Set that against the R4 000 maximum on the face of the Animals Protection Act 71 of 1962 and you have a fair question about South African regulatory priorities — and a good reason to walk the farm once with a botanist and map every listed species by category.

There is a production case too. Invasive alien plants are estimated to cut national surface runoff by 1 444 million m³/yr, about 2.9% of naturalised mean annual runoff — plausibly nearer 2 444 million m³/yr if riparian invasion is as under-mapped as specialists believe. The wattle jungle in your drainage line costs far more water per hectare than the same plants on dry ground.

#One willow, three measurements

#Where grazing law and water law become one decision

The National Water Act 36 of 1998 lists eleven regulated uses in section 21. Four catch a stock farmer: 21(a) taking water, 21(b) storing water, 21(c) impeding or diverting flow in a watercourse, and 21(i) altering the bed, banks, course or characteristics of a watercourse. Every dam, weir, crossing, gabion and gully structure lands on 21(c) or 21(i) — the same works Reg 8 governs. Section 22 allows use without a licence only under Schedule 1, as an existing lawful use, or under a general authorisation. If you have never applied for anything, Schedule 1 is what you are standing on.

Three points that save arguments. There is no numeric volume threshold in Schedule 1 — the widely quoted "10 m³ per day" appears nowhere in the Act or the Schedule; it comes from registration practice. Schedule 1 does expressly cover run-off from a roof, so rainwater harvesting off the sheds needs no authorisation. And Schedule 1(2) warns that the entitlement does not override any other law: a lawful Schedule 1 water use can still be a CARA offence.

Then Chapter 12. A "dam with a safety risk" is one that can contain more than 50 000 m³ and has a wall of more than 5 m vertical height (s117(c)) — both limbs, not either. Such a dam must be registered (s120), and designing, altering, repairing or evaluating it is work for an approved professional person registered under the Engineering Profession of South Africa Act 114 of 1990 (s119). Most farm dams fall below the line.

The autumn destocking call you have been treating as a fodder-flow decision is simultaneously a CARA question and a water-law question. Do the LSU reconciliation this April with the legal factors and file the answer with your veld records — when someone eventually asks, that file is the whole defence.