Els v Department of Water Affairs [2009] ZAWT 8 (31 July 2009)

Els v Department of Water Affairs [2009] ZAWT 8 (31 July 2009)

The Tribunal found that there was no formal application by the appellant to the responsible authority to declare the water use as an existing lawful water use. Consequently, there was no decision by the authority on such an application. Section 148(1)(f) of the National Water Act only confers appellate jurisdiction where a decision has been made on an application to which section 41 applies. As neither an application nor a decision existed, the Tribunal lacked jurisdiction to entertain the appeal. The matter was therefore not properly before the Tribunal and could not be adjudicated.

Citation
[2009] ZAWT 8
Parties
Appellant: Marius Els; Respondent: Department of Water Affairs
Court
Water Tribunal
Jurisdiction
South Africa
Judgment Date
31 July 2009
Case Number
WT 15/06/2007
Procedural Posture
Civil Appeal / Point in Limine
Outcome
Appeal dismissed for lack of jurisdiction.
Judges
L J Lekale, H Thompson, A S Makhanya
Legal Topics
National Water Act, Existing Lawful Water Use, Jurisdiction of Tribunal, Appeal Procedure
Administrative Law Land and Property National Water Act Existing Lawful Water Use Jurisdiction of Tribunal Appeal Procedure

Case Brief

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Parties

Marius Els

Appellant

Department of Water Affairs

Respondent

Procedural Posture

Civil Appeal / Point in Limine

Legal Issues

  1. 1 Whether the Water Tribunal had jurisdiction to hear the appeal under section 148(1)(f) of the National Water Act.
  2. 2 Whether the appellant was entitled to reinstatement of a water use entitlement.

Ratio Decidendi

The Tribunal found that there was no formal application by the appellant to the responsible authority to declare the water use as an existing lawful water use. Consequently, there was no decision by the authority on such an application. Section 148(1)(f) of the National Water Act only confers appellate jurisdiction where a decision has been made on an application to which section 41 applies. As neither an application nor a decision existed, the Tribunal lacked jurisdiction to entertain the appeal. The matter was therefore not properly before the Tribunal and could not be adjudicated.

Court Disposition

Appeal dismissed for lack of jurisdiction.

Orders

  • The Water Tribunal does not have appellate jurisdiction over the matter.
  • The file shall be closed.