Driemeyer v Department Of Water And Sanitation (05/19/KZN) [2022] ZAWT 4 (31 May 2022)

Driemeyer v Department Of Water And Sanitation (05/19/KZN) [2022] ZAWT 4 (31 May 2022)

The Tribunal found that the Department failed to afford the appellant a procedurally fair opportunity to make representations, as the five-day period was unreasonable given the need for environmental studies. The Department erred in refusing to consider the appellant's licence application, as there is no provision in the National Water Act barring such applications where unlawful water use has occurred. The Tribunal held that rectification under section 53 should, in the circumstances, mean permitting the appellant to apply for a licence rather than ordering demolition, especially given the absence of proven harm, the severe drought, significant investment, and public interest...

Citation
[2022] ZAWT 4
Parties
Appellant: Edwin Ronald Driemeyer; Respondent: Department of Water and Sanitation
Court
Water Tribunal
Jurisdiction
South Africa
Judgment Date
31 May 2022
Case Number
05/19/KZN
Procedural Posture
Civil Appeal / Appeal Against Directive Issued Under Section 53 of the National Water Act
Outcome
Appeal upheld. The directive issued by the Department is set aside. The Department must permit the appellant to apply for water use licences for the unlawful dams.
Judges
L Mbanjwa, SD Kvalsvig
Legal Topics
National Water Act, Water Use Licensing, Environmental Impact Assessment, Rectification of Unlawful Use, Procedural Fairness, Public Interest Balancing
Administrative Law Environmental Law Land and Property National Water Act Water Use Licensing Environmental Impact Assessment Rectification of Unlawful Use Procedural Fairness +1 more

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Parties

Edwin Ronald Driemeyer

Appellant

Department of Water and Sanitation

Respondent

Procedural Posture

Civil Appeal / Appeal Against Directive Issued Under Section 53 of the National Water Act

Legal Issues

  1. 1 Whether the directive issued under section 53 of the National Water Act was lawfully and reasonably issued against the appellant for constructing dams without authorisation.
  2. 2 Whether the appellant was afforded a procedurally fair opportunity to make representations before the directive was issued.
  3. 3 Whether rectification of unlawful water use should entail demolition or allow for licence application.

Ratio Decidendi

The Tribunal found that the Department failed to afford the appellant a procedurally fair opportunity to make representations, as the five-day period was unreasonable given the need for environmental studies. The Department erred in refusing to consider the appellant's licence application, as there is no provision in the National Water Act barring such applications where unlawful water use has occurred. The Tribunal held that rectification under section 53 should, in the circumstances, mean permitting the appellant to apply for a licence rather than ordering demolition, especially given the absence of proven harm, the severe drought, significant investment, and public interest...

Court Disposition

Appeal upheld. The directive issued by the Department is set aside. The Department must permit the appellant to apply for water use licences for the unlawful dams.

Orders

  • The Directive dated 12 February 2019 issued by the Respondent against the Appellant is hereby set aside.
  • Respondent must permit Appellant to follow the application process prescribed in terms of the National Water Act for licensing of both unlawful Mara Dam 3 and the two slurry dams.