Introduction

Natural resource governance is embedded in laws and institutions. Administrative (and in some jurisdictions constitutional) law empowers public officials to act, to decide, and formulate law and policy on matters pertaining to the governance of natural resources within clearly delineated areas of competency. When considering governance within a single resource sector, for example the water sector, sectoral law will further regulate the management of the particular resource in question. The sectoral legal framework should, however, always be understood in relation to the broader administrative legal regime: using our case study to demonstrate this point, the management and provision of water resources in South Africa is regulated by an extensive body of general environmental legislation (for example, the National Environmental Management Act) as well as sectoral legislation (for example, South Africa’s National Water Act) which, when contravened, can be enforced within a court of law. Understanding the role of law in shaping natural resource governance is thus essential, particularly when investigating or developing new governance arrangements to improve the management of natural resources.

Legal systems are intentionally constructed around a preference for maintaining the status quo through the promotion of stability, certainty, and predictability (Cosens et al. 2017; Ruhl 2012). The process of change is thus purposely slowed via checks and balances among the branches of government such that multi-stakeholder deliberation is fostered (Cosens et al. 2017). This prioritization of stabilization in the legal system may result in a mismatch with the dynamic nature of the natural resources that it regulates (Allen et al. 2011). This is because natural resource governance is characterized by ‘(1) high degrees of uncertainty; (2) complexity resulting from multiple variables and nonlinear interactions; (3) interconnectedness—among issues, across landscapes, and between people and place; and (4) persistent, possibly dramatic, change’ (Scarlett 2013). The varying levels of uncertainty and unpredictability characteristic of the natural resource governance context do not mesh well with legal certainty (Allen et al. 2011; Garmestani and Benson 2013). As such, decision-making in the context of natural resource governance presents information challenges, communication challenges, and action challenges (Scarlett 2013). This has prompted calls for institutional and organizational flexibility such that learning may be incorporated into natural resource governance which necessitates coordination and collaboration in policy and decision-making. In response to this need, a number of innovative approaches have been developed that strive to manage scarcity and complexity across natural resource systems through the promotion of inter-sectoral and/or cross-scale coordination and collaboration, including adaptations of panarchy theory to natural resource governance (Allen et al. 2014; Garmestani and Benson 2013; Gunderson and Holling 2002), adaptive management and governance (Allen and Gunderson 2011; Folke et al. 2005; Walker et al. 2004), the water, energy, and food nexus (Endo and Oh 2018; Biggs et al. 2015; Hoff 2011), and reflexive governance (Voß and Bornemann 2011; Voß et al. 2006; Dedeurwaerdere 2005; Lenschow 2002).

If, in pursuing the goal of stability, the rigidity of the law frustrates a coordinated approach to natural resource governance as is required to effectively respond to the dynamic nature of water, then we must conclude that the law itself requires amendment. However, a call for legal amendment premised upon only an assumption of rigidity derived from recognition of the law’s goal of stability but absent of a creative and thorough interpretation of existing legislation, is to oversimplify the issue. The law should first be thoroughly assessed for untapped capacity to promote a coordinated approach to natural resource governance (Garmestani et al. 2019), which need not inherently conflict with the normative goal of promoting stability. Should such untapped capacity exist, it may then be utilized, thereby avoiding the need for large-scale legal reform. This is desirable given that legal reform requires a lengthy procedural process often thwarted by layered bureaucracy and insufficient political will and is thus not likely to happen as swiftly as impending environmental issues require (Craig et al. 2020).

Through a case study analysis of the general and sectoral law regulating water resources in South Africa, we answer the following research question:

What untapped capacity exists within the existing formal water law framework in South Africa to promote greater degrees of coordination across different levels of government (national, provincial and local levels) and across different governance sectors (i.e., can water officials coordinate with officials in other governmental departments such as with energy or health officials)?

In answering this research question we develop a protocol that aids in identifying existing, untapped legal capacity to promote coordinated governance of water resources in South Africa. Notwithstanding the jurisdictional specificity and sectoral focus, the use of the protocol and structure of our analysis serves as a model for the evaluation of existing laws for untapped capacity to promote coordination of different governance regimes around the world.

Importantly, the focus of this research on the formal institutional structure and its underlying regulatory framework should not be interpreted to diminish informal means of coordination. In fact, informal interpersonal interaction between public actors within and across governmental departments represents an important means of promoting coordination in natural resource governance, as does local level community-based arrangements (Oldfield and Greyling 2015; Chaffin et al. 2016; Enqvist et al. 2020; Clement 2022). It is the aim of this research to complement existing accounts of informal means of coordination with an understanding of the correlating role of the formal regulatory framework (i.e., laws and institutions) in shaping coordination practices. It is quite clear that this latter perspective has been understudied and accounted for in research on natural resource governance. Here, we seek to advance research on the essential role of law and formal regulatory frameworks on natural resource governance with a case study of the water resources of South Africa.

Background and context

Research on different forms of governance, such as research on adaptations of panarchy theory to environmental governance (Allen et al. 2014; Garmestani and Benson 2013; Gunderson and Holling 2002), adaptive management and governance (Allen and Gunderson 2011; Folke et al. 2005; Walker et al. 2004), the water, energy and food nexus (Endo and Oh 2018; Biggs et al. 2015; Hoff 2011), and reflexive governance (Voß and Bornemann 2011; Voß et al. 2006; Dedeurwaerdere 2005; Lenschow 2002) has attempted to address coordination across sectors and levels of government, aspiring for improved management of natural resources. The call for intergovernmental coordination in response to the demonstrated interdependence of natural resource systems and governance is a principal point of intersection of this scholarship (Folke et al. 2005). These studies establish a means of examining how different actors operating across sectors at different levels of government achieve their objectives in the natural resource governance space (Garmestani and Benson 2013).

In this section, we show how this literature provides tools for analyzing procedural mandates across governmental levels and sectors in the natural resource governance space and demonstrate a tendency to focus on coordination challenges. At the same time, we argue that the literature inadequately considers the existing potential for multi-level and cross-sectoral coordination in existing laws and regulations and as a result does not adequately consider the practical application of the coordination solutions it puts forward. We begin by briefly defining what we mean by ‘natural resource governance’, before summarizing the scholarly debates on coordination from different approaches to natural resource governance popular in contemporary literature. In this way a conceptual basis is established upon which the doctrinal analysis (standard legal analysis) may be conducted demonstrating how untapped capacity to coordinate within existing regulatory frameworks may be identified.

Intergovernmental coordination in natural resource governance

Governance, for the purpose of this paper, refers to ‘the means through which collective goals are chosen, decisions are made, and action is taken to achieve the chosen goals’ (Cosens and Gunderson 2018, p. 5). The term governance is broader than government including within its scope the relationship between government and society and thus also the ways through which private actors, markets, and even interest-based networks self-organize to both mediate their own behavior and influence policy decisions (Folke et al. 2005; Huitema et al. 2009; Lemos and Agrawal 2006). Natural resource governance is that subset of collective action including the norms, institutions, structures and processes mediating human interaction with natural resource systems and ‘determines how power and responsibilities over natural resources are exercised, how decisions are taken, and how citizens participate in and benefit from the management of natural resources’ (Springer et al. 2021). Water resource governance is then concerned specifically with the relationship between citizens and water resources.

Coordination of natural resource governance here refers to the fostering of interactions between agents that can produce wanted or better outcomes as determined by some standard (Vatn 2012). Many perspectives exist from which coordination may be approached. We focused on coordination as a process, and more specifically with the associated strategies and mechanisms that governments use to coordinate public organizations or programs concerned with natural resource governance. The scope of this research is thus restricted to identifying untapped capacity for coordination in formal mechanisms found in law and policy in a public sector interorganizational context. Coordination in a public sector interorganizational context is here understood as constituting ‘the instruments and mechanisms that aim to enhance the voluntary or forced alignment of tasks and efforts’ of organizations within the public sector within and between policies, implementation, or management (Bouckaert et al. 2010). Multi-level and cross-sectoral coordination has been identified as necessary elements in the operationalization of a number of innovative approaches that have been developed to manage scarcity and complexity across natural resource systems.

Panarchy theory was developed by Gunderson and Holling to understand how human and ecological systems function and interact across scales (Gunderson and Holling 2002). Allen et al. (2014) defines panarchy as ‘a conceptual model that describes the ways in which complex systems of people and nature are dynamically organized and structured across scales of space and time’. When applied in the context of natural resource governance, panarchy responds to the recognition that human and natural systems interact in ‘complex, nonlinear ways, with multiple avenues for feedback among systems’ (Cosens and Gunderson 2018, p. 2). Governance of natural resources thus needs to be flexible and adaptive. Legal scholars argue that to be effective, tools for flexible and adaptable management require embedding within systems of law and governance to address the intersection of the social–ecological systems being governed and the legal system (Garmestani et al. 2009; Ruhl 2012). This in turn requires high levels of information sharing, cooperation, and coordination across stakeholders to enable flexible and adaptive responses to changes in the natural systems they interact with or control (Cosens and Gunderson 2018; Allen et al. 2014; Ruhl 2012; Garmestani et al. 2009).

Adaptive management and governance has been put forward by scholars as a means of handling uncertainty in natural resource governance (Cosens and Gunderson 2018; Garmestani et al. 2009). It does so by purposely and explicitly increasing knowledge (through learning), thereby decreasing uncertainty to allow for effective management of natural resources (Holling 1973; Walters 1986). The central concept in adaptive management is ‘that policy choices should be treated as deliberate, large-scale experiments; hence, policy choice should be treated at least partly as a problem of scientific experimental design’ and nested in an adaptive governance framework (Allen and Gunderson 2011, p. 1379). The literature on adaptive management and governance (particularly the application to water resources) increasingly highlights the institutional nature of barriers to practical success, including the absence of enabling regulatory and policy environments (Akamani 2016; Allen and Gunderson 2011). In this regard, studies have revealed that the failure to implement adaptive management is a result of factors such as the absence of shared decision-making among diverse stakeholders (Gregory et al. 2006); the inability of overlapping management agencies to effectively communicate and agree on the distribution of responsibilities for implementing an adaptive management plan (Gregory et al. 2006), a belief within public agencies that single best policies lend credibility (Walters 1997); an absence of processes promoting shared understanding and shared decision-making across diverse departments and stakeholders (Gregory et al. 2006); and lack of funding for the increased monitoring required to properly compare the outcomes of alternative policies (Walters 2007).

The water, energy, and food nexus has developed as a concept describing the linkages across water, energy, and food systems (Lawford et al. 2013; Weitz et al. 2017). The WEF nexus thus acknowledges the existing sectoral interdependencies and the correlating need to make use of potential synergies and manage trade-offs. To adequately respond to cross-sectoral interactions such that synergies may be identified and trade-offs managed requires a coordinated approach by government actors possessing the requisite mandate and powers to respond (Harvey 2023). To this end, numerous studies on the WEF nexus have demonstrated how political silos give rise to communication and collaboration barriers (Bhaduri et al. 2015; Daher and Mohtar 2015; Kaddoura and El Khatib 2017; Liu et al. 2017; Scott et al. 2015; Simpson and Jewitt 2019), differing values, goals, priorities, and cultures between governing sectors (Covarrubias 2019; van Gevelt 2020), and conflicting sectoral decision-making processes and limited cross-sectoral communication (Daher and Mohtar 2019; Howarth and Monasterolo 2016; Liu et al. 2018; White et al. 2017). Such issues not only exist between sectors, but also across the various levels of government, where different interests, powers, and incentives frustrate organizational coordination (Bergendahl et al. 2018; Daher and Mohtar 2019). The literature further emphasizes the necessity of engagement with a broad range of stakeholders extending beyond public officials to address silos (Bhaduri et al. 2015; Laspidou et al. 2020; Mohtar and Daher 2016; Olawuyi 2020; van Gevelt 2020; White et al. 2017). Additionally, as is the case in the adaptive management and governance literature, nexus scholars call on policy makers to consider and agree on a clear financial plan to accompany proposed interventions so as to ensure capacity to implement nexus approaches (Daher et al. 2019). Finally, nexus literature emphasizes the need for policy to reflect nonlinearity of resources, and demands a degree of flexibility and adaptability that is not ordinarily characteristic of policy design (Bhaduri et al. 2015; Kurian 2017; Liu et al. 2018).

Reflexive governance, defined more generally, is ‘the ability of a structure, process, or set of ideas to reconfigure itself in response to reflection on its performance’ (Dryzek and Pickering 2017, p. 353). Reflexivity in the narrower context of natural resource governance is concerned with social–ecological systems (as opposed to a focus on human systems alone) and refers to the ability for public actors to recognize and interpret signals from the physical resource systems and to rethink and reshape core governance values and practices accordingly (Dryzek and Pickering 2017). A link can be drawn between theories of reflexive governance and the contemporary scholarly recognition of the increased relevance of networked coordination structures over more traditional/hierarchical modes of coordination (McNutt and Rayner 2018). As such, reflexive governance scholars argue that the formal regulatory framework should create an enabling environment for reflexive (networked) coordination in this regard (Schutter and Lenoble 2010). The concept of reflexivity has been applied across a broad range of environmental issue areas (Feindt and Weiland 2018) including collaborative water and flood risk governance (Mees et al. 2018; Westling et al. 2014); transboundary marine spatial planning (Boström et al. 2016; van Tatenhove 2017); and to various topics related to governance of the food system including food security (Sonnino et al. 2014), food chain performance (Kirwan et al. 2017), and sustainable transitions of food and agricultural systems (Feindt 2012; Marsden 2013). One of the core barriers to a reflexive approach to natural resource governance beyond entrenched politics and power struggles is the necessity of horizontal learning, which is frustrated by rigid adherence to polarized policy positions (Durnova 2018) and/or the perceived need to maintain close networks (Gottschick 2018; McNutt and Rayner 2018). Further barriers include ‘inequalities of information, power imbalances, [and] the lack of access to networks’ as well as a lack of information sharing across governance networks (Feindt and Weiland 2018).

It is thus clear that a principal point of intersection across a number of different approaches to natural resource governance is the need for intergovernmental coordination in response to demonstrated sectoral interdependence and the uncertain and dynamic nature of natural resource systems (Garmestani and Benson 2013). Additionally, in all instances, the absence of an enabling legal and policy environment was identified as one of the primary barriers to the successful implementation of all of these governance approaches in practice (Ruhl and Fischman 2010). What constitutes an ‘enabling legal and regulatory environment’ is often not set out within the literature; the law is simply treated as a problem that hinders sound governance, without an analysis of the legal system in question. Our review of the literature found a number of characteristics that scholars identified as desirable in any legal and regulatory framework promoting coordination which we summarize in Table 2. Furthermore, it is important to note that in every instance, the conclusion surrounding the inadequacy of existing regulatory frameworks is reached without a thorough legal review of the regulatory framework in question. This is unsurprising given the lack of legal perspectives within the literature on natural resource governance, and the consequent failure to connect law with approaches to natural resource governance (but see Garmestani and Benson 2013).

Although a number of social and economic challenges may prevent the practical operationalization of any one of these approaches to natural resource governance, we are here focused on addressing the institutional and legal challenge of an absent supporting regulatory framework. It is our proposition that in many cases, the legal and regulatory framework can in fact support any one of these new approaches to natural resource governance and therefore represents far less of a barrier than existing scholarship has stated. The hidden or untapped capacity of an existing regulatory framework is derived from the unique character of the law. As the highly acclaimed legal philosopher Ronald Dworkin famously stated:

‘law is a social phenomenon. But its complexity, function, and consequence all depend on one special feature of its structure. Legal practice, unlike many other social phenomena, is argumentative’ (Dworkin 1986, p. 13).

The untapped capacity of an existing regulatory framework thus rests within the ability to creatively interpret existing law such that it may be validly applied in pursuance of a different result (Garmestani et al. 2019). Therefore, should the social scientist wish to assess whether there exists a supporting regulatory and policy environment for a new approach to natural resource governance, they should not expect to find a single existing regulatory framework that perfectly reflects the governance structure they wish to follow and expressed in the same (scientific) language of their new governance approach. This is unlikely to exist.

However, through the application of the interpretive method of the legal discipline, existing law should be reviewed for procedural rules and legal mechanisms that, through creative interpretation, enables an application of the same legal rule in a new but legally valid context, thus having a different effect and yielding a different desirable outcome in practice (Hoecke 2011). This outcome is one that enables the operationalization of the new approach to natural resource governance, as demonstrated extensively in the discussion section of this paper. This is not a radical proposal. Doctrinal analysis (legal analysis) is, after all, at the core of legal practice, and more broadly, there is no viable sustainability pathway without consideration of and accounting for the law (Garmestani et al. 2019; Ruhl 2012).

Doctrinal analysis requires a uniquely legal manner of engaging in descriptive or exploratory analysis on the basis of the interpretive method (Hoecke 2011). Additionally, where the research question is evaluating a legal state of affairs or seeking solution to a legal problem, the evaluation is grounded not in a theoretical framework but in a normative one (Taekema 2018). Legal doctrine is thus multifaceted, being a predominantly ‘hermeneutic discipline, with also empirical, argumentative, logical and normative elements’ (Hoecke 2011, p. 157). Doctrinal legal research thus organizes legal texts (e.g., laws, regulations), conducts analysis from an interpretative, hermeneutical perspective, and develops coherent arguments on the law based on logical deduction, inference, and normative claims (van Boom et al. 2018).

The purpose of this research is therefore to demonstrate the utility of connecting natural resource governance with the law. This is achieved by focusing on a principal point of intersection (i.e., intergovernmental coordination) across a number of different approaches to natural resource governance to demonstrate how doctrinal analysis may reveal untapped capacities in the existing legal system to promote coordination of governance. This analysis can be easily replicated across multiple resource sectors, for example in the governance of energy, food, and mineral resources. However, for this work we confined our case study to a single jurisdiction, namely South Africa, and a single sector, namely the water sector. This is because the primary purpose of this study is to demonstrate the utility of this approach (proof of concept) rather than conduct a full-scale doctrinal analysis of the entire regulatory framework of a country.

Case study

South Africa is predicted to experience the largest decline in precipitation in the sub-Saharan African region, with concurrent risks of severe drought (Serdeczny et al. 2017). Indeed, in 2017, Cape Town (South Africa’s southernmost and second largest city) became the first ever major city in the world to nearly run out of water entirely (Sousa et al. 2018; Millington and Scheba 2021). The issue of scarcity is made more complex by the prevailing social and economic inequality within South Africa inherited from the racist Apartheid regime. From 1948 to the early 1990s, the National Party (being the governing party during this time) pursued an official and formal policy of segregation involving legal, political, and economic discrimination against all non-White persons (Dubow 2014). Progress in reversing Apartheid’s entrenched system of institutional racism has been slow, but the country now ‘has one of the most progressive constitutions in the world, with a bill of rights that foregrounds expanded socioeconomic rights’ (Francis and Webster 2019, p.788). This is significant because post-Apartheid South Africa is a constitutional democracy, making the Constitution the highest law in the land.

South Africa’s Constitution establishes a three-tiered structure of government, allocates powers across the three tiers of government, defines the nature and scope of such powers, and designates the procedural requirements for law making and decision-making across all spheres (i.e., national, provincial, and local) of government. Power to make general law and policy largely rests with national government, while the responsibility for delivery of services is held by local governments. Each level of government contains a number of departments responsible for administration of a particular public matter. Siloed management of natural resources can occur when government departments do not coordinate their policy and decision-making with other affected departments. Given that the climate change-induced threat of water scarcity coupled with the complex social and economic context promoting unequal access to water resources requires a rapid and effective response from within a siloed institutional structure of government, a clear need for effective coordination of natural resource governance arises in South Africa.

Methods

A single instrumental case study design was used given that our focus was on a single issue (coordination in a public sector interorganizational context) rather than the ‘case’ itself (Yin 2009). Data collection was conducted via document reviews. Given the elevated status of the documents, namely binding law and official policy that is the primary source establishing the formal institutional structure and powers to coordinated government, we determined that document review alone provided sufficient data to answer our research question. The case study selected was the South African water resource governance regime, including the broader environmental legislation applicable to water governance (for example, the National Environmental Management Act). To assess the capacity for coordination across different levels of government, we focused the case study analysis on South African national level law and policy, Western Cape provincial level law and policy, and City of Cape Town local level law and policy, respectively. All three levels of government have open access electronic databases containing regularly updated versions of all law and policy currently in force.

Overarching legislation and policy, particularly those regulating the exercise of public powers, were selected first. This cannot be done on the basis of a keyword search given the risk of excluding relevant documents that have the effect of shaping the exercise of public power without mentioning the specific key word. Consequently, the traditional legal research method of doctrinal review was thus adopted. As such, the legal expertise of the authors and their underlying understanding of the legal system studied as a whole inform which legislation must be included in the analysis. All legislation that is necessary in determining how public power is assigned within the institutional structure of the government is thus included. In South Africa, this is simple: because it is a constitutional democracy, the primary and most supreme law regulating public powers is the Constitution of the Republic of South Africa. We therefore include the Constitution in the analysis as well as all of the laws, policy, and strategy documents that the Constitution expressly requires be enacted to designate specific powers. A total of 11 general documents were reviewed: laws (n = 8) and policy (n = 3).

To identify water sector legislation, a standard keyword search is possible. In South Africa, the provincial government does not have competence (i.e., power to make laws) over matters concerning water. Thus, documents from the nationalFootnote 1 and localFootnote 2 government’s respective electronic databases (document centers) were collected for review. The key word “water” was inputted into the electronic databases and results were filtered to display all law (i.e., acts or byelaws), policy, and official governmental strategy documents currently active (i.e., not repealed or replaced) in South Africa.

The generated list of documents was manually checked and documents were selected for review if they met 3 inter-related criteria: (1) addressed the management of water either in and of itself or in relation to another sector; (2) addressed or designated decision-making and/or planning powers regarding water resources; (3) technical regulations containing only standards for waste disposal or technical standards regarding water storage were excluded for irrelevance as they do not regulate intergovernmental powers or interactions. A total of 36 sectoral documents were included: laws (n = 30), policy (n = 4) and binding strategy or guidelines (n = 2). All 47 documents (11 general and 36 sectoral) are presented in Table 1.

Table 1 List of documents included in document review
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To analyze the selected documents, we developed a protocol drawing from the existing state of the art as analyzed in the preceding section in this paper, as well as from the research results of a number of more extensive literature reviews (Harvey 2023; Cosens and Gunderson 2018; Endo et al. 2017; Cosens et al. 2017; Voß and Bornemann 2011) in which the characteristics of a regulatory framework with capacity to promote interorganizational coordination were identified. This protocol is presented in Table 2. The selected documents were reviewed in detail and any provisions that reflected one or more characteristics were recorded in an Excel spreadsheet. The authors then had an overview of all the formal mechanisms for promoting coordination, and could apply deductive legal reasoning—as is standard within the legal method of traditional doctrinal review (Taekema 2018; Hutchinson 2015; Hutchinson and Duncan 2012)—to describe in what way such legal and policy mechanisms may be utilized to promote coordination in practice. This is described in the analysis below.

Table 2 Protocol for identifying legal and/or policy mechanisms with capacity to promote coordination of governance
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Results

The results of the doctrinal review are summarized in Table 3 and set out in detail below.

Table 3 Results of doctrinal analysis of South African law and policy reviewed for capacity to promote coordination of governance
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Capacity for coordination within the institutional structure of government

We reviewed every clause of South Africa’s Constitution to identify mechanisms or procedures reflecting one or more of the characteristics detailed in our protocol (Fig. 1, Table 2).

Fig. 1
figure 1

Summary of legal mechanisms in the Constitution of South Africa found to have capacity to promote coordination of governance

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Section 41 of the Constitution contains the Principles of Cooperative Governance, the underlying purpose of which is to limit interdepartmental conflict and competition across all levels and sectors of government. The cooperative government principles have been interpreted by the South African Constitutional Court (the highest court in the land) as constituting an ‘express provision that all spheres of government must exercise their powers and functions in a manner that does not encroach on the geographical, functional or institutional integrity of government in another sphere’ (Certification of the Constitution of the Republic of South Africa 1996). Given that Section 41(1)(h) of the Constitution requires that government officials across departments coordinate and consult with one another, and further that coordination and consultation have been viewed as the two essential facets of collaboration (Gulati et al. 2012), it is unsurprising that three of the principles contain characteristics that we have identified as promoting coordination.

In practical terms, the effect of these provisions can be significant. Given that the Constitution is the highest law in the land, it is required that (1) all law and policy currently in force be compliant with the Constitution and be interpreted in light of its provisions; and (2) that all action taken by public actors must be in compliance with the Constitution. For the purposes of the present research question, this means that the various governmental departments responsible for the management of water (and in fact for the management of any environmental matter) must legislate, create policy, and perform their functions in a coordinated manner with other governmental departments and with the inclusion of relevant consultations. To fail to do so would be in breach of the Constitution. In this case, untapped capacity for coordination exists because the Constitutional Court in National Gambling Board v Premier KwaZulu-Natal and Others (CCT32/01) and in Western Cape Minister of Education and Others v Governing Body of Mikro Primary School and Another (SCA140/05) confirmed the justiciability of section 41. This means that if a law/policy contravenes (does not comply with) the section 41 requirement to coordinate, consult, and cooperate in the formulation of such law/policy, or if the law/policy unjustifiably conflicts with the law/policy of another government department, that law or policy may be taken on review. Should the Constitutional Court determine that the law/policy contravenes section 41, it can be declared invalid. The very limited number of cases invoking section 41 demonstrates a lack of reliance on this section (Gamper 2010). So arises the untapped capacity within the law to compel coordination and cooperation in the law/policy making process. Thus, we can already begin to see a basis for the promotion of interorganizational coordination within the institutional structure of government.

Capacity for coordination within the overarching legislative and policy framework

Our review of the overarching legislative and policy framework against our coordination protocol found that mechanisms reflecting all nine characteristics promoting coordination were present. The specific sections containing such mechanisms are too numerous to reproduce in full here. Thus, we grouped together those mechanisms from the different legal and policy documents that contained the same characteristics and formulated ten categories of coordinating mechanisms. Table 4 presents these ten categories alongside the correlating characteristic as identified in our coordination protocol. The third column of Table 4 gives examples of each category of mechanisms extracted from the document review. It is important to note that, given that the overarching documents are those regulating public power and public action, these mechanisms are generally applicable (i.e., they apply to all actions and decisions taken by government) and thus promote coordination not only within the water sector, but also across all resource sectors and levels of government.

Table 4 Categories of mechanisms with capacity to promote coordination in the overarching legislative and policy framework
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Participation procedures and guiding principles are perhaps less widely recognized mechanisms for promoting coordination across governmental departments and their inclusion as categories of coordinating mechanisms in Table 3 requires brief elaboration.

Public participation requires engagement with all interested or affected stakeholders, as public officials from another department are empowered to participate in participatory proceedings where their interests are impacted. For example, "Background and context"(4)(f) of the National Environmental Management Act 107 of 1998 requires that participation of ‘all interested and affected parties in environmental governance’ be promoted. The official guidelines for the interpretation of this Act state that interested and affected parties include ‘any organ of state that may have jurisdiction over any aspect of the activity’ and thus allow for coordination between governmental departments through participation proceedings.

Guiding principles, though not directly promoting coordination, contribute to solving a core complexity in navigating natural resource governance when operationalizing coordinated approaches. A governance arrangement requiring closer coordination whether across sectors or levels of government will, at one point or another, necessitate a choice by public officials of which (sectoral) interests to prioritize and to what degree. As van Gevelt 2020 shows, these decisions are inherently subjective, shaped by ‘the values and objectives of stakeholders and decision-makers, procedural considerations and power relations between stakeholders’. Navigating inter-sectoral trade-offs is thus a complex matter. However, South African law’s explicit prioritization of certain value-laden principles within binding legislation aids public officials and stakeholders in their choice over which interests to prioritize.

Returning to the question of untapped capacity in the law, all provisions (sections of the law) set out in Table 4 are binding law. This means that failure to comply provides grounds to take the relevant government department to court to compel compliance via a court order. This is of course a formal and potentially time-consuming process, but often the mere threat of such a process is sufficient to compel compliance. Additionally, the existence of these legal provisions challenges the claims in the literature that existing legal and regulatory frameworks do not adequately support coordination across sectors and levels of government.

Capacity for coordination within the sectoral legislative and policy framework

The majority of mechanisms promoting coordination identified within the overarching legislative and policy framework are also reflected within sectoral legislation (with categories 4 and 7 being the only exception). An eleventh category of mechanisms not found in the overarching legislation was identified in the sectoral legislation. The results are presented in Table 5.

Table 5 Categories of mechanisms with capacity to promote coordination in the sectoral legislative and policy framework
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As was the case in the overarching legislation, the capacity to coordinate here lies in the legal basis that these provisions provide for compelling compliance therewith. The claim that a key issue with operationalization of a new approach to natural resource governance rests in the absence of a legal framework adequately supporting such an approach is again challenged by the findings in Table 5. For example, the claim by administrative governance scholars (Gregory et al. 2006) and WEF nexus scholars (Bhaduri et al. 2015; Laspidou et al. 2020; Mohtar and Daher 2016; Olawuyi 2020; van Gevelt 2020; White et al. 2017) that there is an absence of legal processes promoting shared understanding and shared decision-making across diverse departments and stakeholders can be contrasted with section 10(2) of the National Water Act which states that ‘[i]n developing a catchment management strategy, a catchment management agency must consult with…(b) any organ of State which has an interest in the content, effect or implementation of the catchment management strategy.’ This notwithstanding, the presence of enabling legal mechanisms may not be sufficient to resolve coordination challenges. The practical implications of this are discussed in the section that follows.

Discussion

Our analysis of the formal (legal and institutional) capacities in the South African legal system to coordinate water resource governance (natural resource governance), revealed evidence of a variety of mechanisms and processes promoting coordination across sectors and different levels of government. While each mechanism has particular virtues, none in isolation are a panacea (Peters 2017). Additionally, such mechanisms enable different forms of coordination of water resource governance: whereas some mechanisms depend upon the imposition of top-down forms of coordination, others serve to encourage coordination by means of individual interactions and bargaining among relevant public actors.

For example, within the overarching natural resource governance regime the National Environmental Management Act’s mandate for the development of environmental implementation plans (EIP’s) or environmental management plans (EMP’s) by national departments, as analyzed in "Capacity for coordination within the overarching legislative and policy framework", represents a mechanism promoting top-down coordination of natural resources including water resources. This is because EIP’s and EMP’s ensure departments at the national level take steps to coordinate any environmental policies, plans and decisions with that of other national level departments. Given the hierarchical nature of law and policy, with legal instruments higher in the hierarchy generally being superior in effect (Garmestani et al. 2019), this will in turn impact the boundaries of action and decision-making for natural resources (again, including water resources) at provincial and local levels.

More specifically to water resource governance, section 1.4 of the binding National Water Resource Strategy of 2004 requires that catchment management agencies (being regional public bodies responsible for the management of water resources within their respective catchment areas) ensure that their water-related plans and programs are consonant with the plans and programs ‘of all other role players in the catchments they manage’. Section 1.4 thus goes on to require that catchment management agencies ‘establish co-operative relationships with a range of stakeholders, including other water management institutions, water services institutions, provincial and local government authorities, communities, water users ranging from large industries to individual irrigators, and other interested parties.’ In this way coordination of water resources is encouraged by means of individual interactions and bargaining among relevant public actors. Should public actors fail to meet this obligation the decision or action taken may be invalidated on the basis of failure to comply with section 1.4 of the National Water Resource Strategy of 2004, or in the alternative may be reviewed against section 41 of the Constitution and invalidated on the grounds of constitutional non-compliance. In both instances, the means of enforcement is legal action in court, the disadvantages of which we discuss later in this section.

The legal mechanisms identified not only enable different forms of coordination in water resource governance, but also envisage coordination at different stages of the decision-making process. This in turn shapes the nature and effect of the coordination achieved by the particular legal mechanism. By way of example, the implementation protocol envisaged by section 35 of the Intergovernmental Relations Framework Act in which organs of state define their respective roles and responsibilities ‘in implementing policy, exercising the statutory power, performing the statutory function or providing the [public] service’ provides for coordination at the stage of implementation of policy. However, section 24(1) of the Municipal Systems Act requires that planning undertaken by a municipality be aligned with and complement ‘the development plans and strategies of other affected municipalities and other organs of state’ and thus promotes coordination of water resource governance at the policy formulation stage.

Cognizance of the different forms of coordination is important when pursuing a governance approach that promotes coordination across sectors and scales. This is not, in principle, problematic. However, where coordinated governance of water resources is required to achieve specific aims, then voluntary mechanisms may be insufficient to ensure that such coordination does actually occur in practice. This is particularly the case when taking into consideration the role that power and self-interest plays in shaping decision-making by public actors (Scharpf 1994).

Broadly speaking, and with ramifications beyond South Africa, even under perfect conditions in which public actors make decisions solely based upon the pursuance of the public best interest, they may be unaware of the existing formal coordination mechanisms within the water resources regime that are available to them. In such instances two possible solutions arise: a clear mandate requiring and framework enabling coordination is necessary with a clear stipulation of the aim it is pursuing and at what scale and stage of decision-making coordination must take place. Alternatively, the legal framework can empower public actors affected by a decision in a particular department to notify such department of the need to coordinate, placing the voluntary coordination mechanism at the liberty of the party affected rather than the party making the decision. Absent of these alternatives, coordinated governance of water resources is less likely to occur unless such coordination is to the benefit of all parties involved.

In some contexts, it may be desirable to ensure the availability of a variety of formal coordinating mechanisms, but to allow public officials to make use of such mechanisms when it suits them. In this way space is created within the legal regime for public officials to develop creative solutions to particular water resource governance challenges at multiple scales (Garmestani and Benson 2013). For this approach, the availability of legal mechanisms absent of a specified mandate stipulating at what stage and in what manner such mechanisms must be used allows for varying instruments, or combinations of instruments, to be utilized to improve water resource governance by focusing upon processes (learning) instead of fixed or static predetermined aims.

Such flexibility and space for creativity in decision-making is particularly important in light of the fact that climate change, and indeed global change more generally, reflects increasing non-stationarity (Craig 2010). Non-stationarity in the face of very stationary or static governance structures is likely to erode resilience over time. When resilience is exceeded a social-ecological system crosses a threshold—resulting in an alternate natural resource regime that may be less desirable than the previous one. Flexibility within multi-level and cross-sectoral coordination mechanisms are necessary to allow for some degree of adaptation by decision makers to changes in social-ecological systems, or to allow for transformation if conditions have degraded to an undesirable condition (Jozaei et al. 2022).

We have identified the potential in existing laws and regulations for multi-level and cross-sectoral coordination of natural resource governance, and demonstrated how to identify existing, untapped legal capacity to promote coordinated natural resource governance. However, the question then arises as to how these untapped capacities within existing legal structures may be operationalized. Indeed, though these legal mechanisms are present, researchers in the fields of ecology, governance, and sustainability sciences continue to find an absence of coordination in practice. We propose three possible reasons for this discrepancy between law and practice: (1) lack of enforcement of the coordination obligation, (2) the coordination mechanism does not work in practice, or (3) the coordination mechanism does work in practice but is only useful in particular circumstances. Each possibility requires brief elaboration.

Lack of enforcement, at least in the context of our present case study, is not a result of an absence of enforcement mechanisms within the law. As demonstrated above, given that the law has clear obligations to coordinate in a number of circumstances, failure to do so may invalidate the policy made or public decision taken for contravening the applicable law. Even where the enabling law does not include a direct provision requiring coordination, the failure to do so by government departments such that conflicting policy or decision-making results may be subjected to constitutional review and invalidated on the basis of failure to comply with the Constitution’s section 41 obligation to cooperate and coordinate. In South Africa, there is untapped capacity for coordination in existing law given that enforcement is possible. Tapping into this capacity requires cases to be taken to court and will only be pursued by a party where it suits their own interests to do so, and so arises an issue of lack of enforcement in South Africa.

It could alternatively be that the coordination mechanisms in the legal framework do not actually work: consultation and coordination does not necessarily promote shared understanding. It does not even guarantee the results of the consultation and coordination are taken into account in decision-making. If so, we need more guidance on what type of mechanism(s) would be useful in promoting coordination, beyond the very global guidance prevalent in the existing state of the art as summarized in Table 2. This is thus not a case of the existing regulatory regime failing to enable coordination, but rather an issue with the type and quality of such coordination that represents an important topic for future empirical research.

Finally, it could be that the coordination mechanisms, in this case those identified in South African law, do actually promote coordination, but it is dependent on specific circumstances. Given that public authorities can (and have to) pick and choose, they can make errors and select a less appropriate coordination mechanism in practice. If this is the case, the untapped capacity within the legal system may be tapped once guidance on how to best use existing mechanisms is researched and compiled.

Conclusion

When considering the legal framework for water resource governance as positioned within the broader natural resource governance regime in South Africa, there clearly exists potential for promoting coordination across sectors and levels of government. The potential for coordination derives from identifying untapped capacities in the laws and regulations (Garmestani et al. 2019), and our analysis reveals these untapped capacities to promote coordination of water resource governance across a number of legal and policy mechanisms.

The protocol developed in this paper to assess laws for untapped capacity to coordinate decision-making across sectors and levels of governance within the natural resource governance regime (as demonstrated through a case study of the water resource governance regime) is novel and agenda-setting. Our analysis makes clear that legal reform is, at least in South African law, not essential given that there is untapped formal capacity in existing laws to promote coordinated governance of water resources. The research presented here was focused on South Africa, but the protocol developed for this manuscript is portable to other countries around the world and to other environmental problems, further demonstrating its utility for research on formal aspects of environmental governance. This is a pathbreaking discovery and insight, and our analysis has the potential to be used throughout the world to assess legal frameworks for capacity to promote coordinated natural resource governance.