Geldenhuys and Others v Cillie and Others (6928/2005) [2017] ZAWCHC 61 (30 May 2017)

Geldenhuys and Others v Cillie and Others (6928/2005) [2017] ZAWCHC 61 (30 May 2017)

The court held that the Minister's three grounds of opposition do not preclude the applicants' entitlement to seek declaratory relief regarding their water use rights under the Water Court order. The court found that its jurisdiction is not ousted by the National Water Act or by the existence of administrative processes, especially in the absence of effective steps taken by the Department to verify water use under section 35. The deproclamation of the Sanddrift water control area restored the pre-proclamation legal position, including rights under the Water Court order, as 'existing rights' within the meaning of the Water Act 1956. The Minister's powers under the National Water Act do not...

Citation
[2017] ZAWCHC 61
Parties
Applicant: Matthaeus Lourens Geldenhuys; Applicant: Second and Third Applicants; Respondent: Pieter Rossouw Cillie; Respondent: Second to Twenty-Second Respondents; Respondent: Minister of Water Affairs and Forestry
Court
Western Cape High Court, Cape Town
Jurisdiction
South Africa
Judgment Date
30 May 2017
Case Number
6928/2005
Procedural Posture
Civil Application / Separated Issues Hearing on Minister's Opposition Grounds
Outcome
The Minister's grounds of opposition are dismissed; the court will proceed to hear the remaining issues.
Judges
Binns-Ward
Legal Topics
National Water Act, Existing Lawful Water Use, Declaratory Relief, Water Rights, Riparian Rights
Land and Property Administrative Law National Water Act Existing Lawful Water Use Declaratory Relief Water Rights Riparian Rights

Case Brief

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Parties

Matthaeus Lourens Geldenhuys

Applicant

Second and Third Applicants

Applicant

Pieter Rossouw Cillie

Respondent

Second to Twenty-Second Respondents

Respondent

Minister of Water Affairs and Forestry

Respondent

Procedural Posture

Civil Application / Separated Issues Hearing on Minister's Opposition Grounds

Legal Issues

  1. 1 Whether the applicants' entitlement to water use under the Water Court order survives subsequent legislative and administrative changes.
  2. 2 Whether the Minister's opposition grounds based on the National Water Act and prior government notices are dispositive of the application.
  3. 3 Whether the court's jurisdiction is ousted in favour of administrative or tribunal processes under the National Water Act.

Ratio Decidendi

The court held that the Minister's three grounds of opposition do not preclude the applicants' entitlement to seek declaratory relief regarding their water use rights under the Water Court order. The court found that its jurisdiction is not ousted by the National Water Act or by the existence of administrative processes, especially in the absence of effective steps taken by the Department to verify water use under section 35. The deproclamation of the Sanddrift water control area restored the pre-proclamation legal position, including rights under the Water Court order, as 'existing rights' within the meaning of the Water Act 1956. The Minister's powers under the National Water Act do not...

Court Disposition

The Minister's grounds of opposition are dismissed; the court will proceed to hear the remaining issues.

Orders

  • The Minister's contentions that the applicants should have sought verification under section 35 of the National Water Act and that their rights remain determined by Government Notice 1801 of 1981 are determined adversely to the Minister.
  • All questions of costs in respect of the first stage hearing are reserved for determination in the judgment on the remaining issues.