Digging Deeper: The Legal Side of Boreholes

In February 2025, unauthorised borehole drilling on private property above a Gautrain tunnel in Johannesburg compromised the tunnel’s integrity allowing water and soil to enter the underground structure. This incident caused significant damage, and the Gautrain services were suspended while emergencies repairs were carried out, disrupting thousands of commuters. Authorities confirmed that the drilling was illegal, and legal action followed.

The drilling was illegal because it commenced before the required legal permissions were obtained. This serves as a clear reminder that borehole drilling in South Africa is regulated, and non-compliance carries serious legal and financial consequences.

Although a borehole may be situated on private land, the water it accesses is not privately owned. Groundwater is a national resource held in trust by the state, and its use is regulated by the National Water Act together with municipal bylaws. Property ownership alone does not entitle an owner to abstract or use groundwater without authorisation.

Borehole regulation exists to protect shared groundwater resources, safeguard water quality and prevent damage to underground infrastructure such as pipes, cables and transport networks.

The National Water Act provides for different levels of water use authorisation depending on the nature and scale of use. Certain limited domestic uses fall under Schedule 1, which permits reasonable household use - such as drinking, washing and small-scale gardening - without a licence, provided the use is not commercial. More extensive or commercial use requires registration or a formal water use licence.

These national requirements operate alongside municipal bylaws. Most municipalities require written consent before drilling, submission of property details, and registration of the borehole once installed. Applications may be refused where drilling poses a risk to underground infrastructure or fails to meet technical requirements.

Servitudes are another critical consideration. Title deeds often grant utility providers rights over land to protect underground infrastructure. Drilling in breach of a servitude can expose a property owner to significant civil liability for resulting damage.

From a technical perspective, boreholes must comply with South African National Standards (SANS), issued by the South African Bureau of Standards. These standards regulate how boreholes are drilled and constructed, with the aim of preventing contamination, structural failure and environmental harm.

Non-compliance may result in criminal prosecution, municipal enforcement action and civil claims. It can also affect insurance cover and delay property transfers, as lenders and purchasers increasingly require proof that boreholes are lawfully installed and registered.

For buyers and sellers, boreholes deserve particular attention. Sellers are required to disclose the existence and status of boreholes during a property transaction, including whether the borehole is registered and compliant. Buyers should verify this information before concluding a sale, as non-compliant boreholes can result in unexpected legal exposure, delays in transfer or difficulties in securing mortgage finance.

Borehole drilling is not merely a private arrangement between a landowner and a contractor. It affects shared resources and public infrastructure. Proper compliance before drilling - and full disclosure when selling - protects both parties and helps ensure a smooth, legally sound property transaction.

Obtaining approval before drilling, and disclosing borehole information honestly when selling, protects your property, your neighbours and the services your community depends on.

Written by: Maret Carroll
Moderated and approved by: Rohula Kgabu