Barnard v Department of Water Affairs and Forestry (WT02/04/2009) [2009] ZAWT 19 (17 November 2009)

Barnard v Department of Water Affairs and Forestry (WT02/04/2009) [2009] ZAWT 19 (17 November 2009)

The Tribunal found that the directive issued by the respondent lacked sufficient factual justification, as it failed to distinguish between authorised and unauthorised water use. The evidence did not clearly identify the extent of any unauthorised water use, and the respondent had not made a final determination regarding the lawfulness of the appellant's water use prior to issuing the directive. The Tribunal held that a blanket prohibition affecting authorised water use was not in accordance with section 53(1) of the National Water Act. Furthermore, the Tribunal determined that it had jurisdiction to enquire into the existence of a contravention as a necessary precondition for the...

Citation
[2009] ZAWT 19
Parties
Appellant: JD Barnard; Respondent: Department of Water Affairs and Forestry
Court
Water Tribunal
Jurisdiction
South Africa
Judgment Date
17 November 2009
Case Number
WT 02/04/2007
Procedural Posture
Civil Appeal / Appeal Decision
Outcome
Directive dated 6 March 2007 set aside in toto; file closed.
Judges
L.J Lekale, A.S Makhanya, H Thompson
Legal Topics
National Water Act, Water Use Directives, Administrative Appeal, Verification of Water Use
Administrative Law Land and Property National Water Act Water Use Directives Administrative Appeal Verification of Water Use

Case Brief

Summary, issues, holding and outcome

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Parties

JD Barnard

Appellant

Department of Water Affairs and Forestry

Respondent

Procedural Posture

Civil Appeal / Appeal Decision

Legal Issues

  1. 1 Whether the facts existed to sustain the directive issued under section 53(1) of the National Water Act.
  2. 2 Whether the directive was factually justified in prohibiting all water use, including authorised use.
  3. 3 Whether the Tribunal had jurisdiction to enquire into the existence of a contravention warranting the directive.

Ratio Decidendi

The Tribunal found that the directive issued by the respondent lacked sufficient factual justification, as it failed to distinguish between authorised and unauthorised water use. The evidence did not clearly identify the extent of any unauthorised water use, and the respondent had not made a final determination regarding the lawfulness of the appellant's water use prior to issuing the directive. The Tribunal held that a blanket prohibition affecting authorised water use was not in accordance with section 53(1) of the National Water Act. Furthermore, the Tribunal determined that it had jurisdiction to enquire into the existence of a contravention as a necessary precondition for the...

Court Disposition

Directive dated 6 March 2007 set aside in toto; file closed.

Orders

  • The directive issued by the respondent on 6 March 2007 is set aside in its entirety.
  • The file is to be closed.