Ibuhubesi Ore Exploration (Pty) Limited v Department of Water Affairs and Sanitation (WT19/05/2011) [2018] ZAWT 1 (26 September 2018)

Ibuhubesi Ore Exploration (Pty) Limited v Department of Water Affairs and Sanitation (WT19/05/2011) [2018] ZAWT 1 (26 September 2018)

The Tribunal found that the Responsible Authority's refusal of the Water Use Licence was procedurally flawed, as it failed to provide timely reasons and did not comply with statutory obligations under the National Water Act and PAJA. The administrative process was marred by delays, lack of engagement, and absence of proper investigation as required by Section 41 of the NWA. The Tribunal noted that the evidence and specialist reports relied upon were outdated, preventing it from making a fresh determination or substituting its own decision for that of the Responsible Authority. Given the effluxion of time and lack of current environmental information, the Tribunal held that it was not in a...

Citation
[2018] ZAWT 1
Parties
Appellant: Ibuhubesi Ore Exploration (Pty) Limited; Respondent: Department of Water Affairs and Sanitation
Court
Water Tribunal
Jurisdiction
South Africa
Judgment Date
26 September 2018
Case Number
WT19/05/2011
Procedural Posture
Civil Appeal / Appeal Against Refusal of Water Use Licence
Outcome
Appeal partially upheld; refusal of Water Use Licence set aside; matter remitted for reconsideration.
Judges
F Zondagh, T Murombo
Legal Topics
Water Use Licensing, National Water Act, Procedural Fairness, Judicial Review, Wetland Protection, Mining and Prospecting Regulation
Administrative Law Environmental Law Water Use Licensing National Water Act Procedural Fairness Judicial Review Wetland Protection Mining and Prospecting Regulation

Case Brief

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Parties

Ibuhubesi Ore Exploration (Pty) Limited

Appellant

Department of Water Affairs and Sanitation

Respondent

Procedural Posture

Civil Appeal / Appeal Against Refusal of Water Use Licence

Legal Issues

  1. 1 Whether the refusal of the Water Use Licence by the Responsible Authority was lawful, reasonable, and procedurally fair.
  2. 2 Whether the Responsible Authority complied with its statutory obligations under the National Water Act and PAJA.
  3. 3 Whether the Appellant's prospecting activities constituted unlawful water use or mining without authorisation.

Ratio Decidendi

The Tribunal found that the Responsible Authority's refusal of the Water Use Licence was procedurally flawed, as it failed to provide timely reasons and did not comply with statutory obligations under the National Water Act and PAJA. The administrative process was marred by delays, lack of engagement, and absence of proper investigation as required by Section 41 of the NWA. The Tribunal noted that the evidence and specialist reports relied upon were outdated, preventing it from making a fresh determination or substituting its own decision for that of the Responsible Authority. Given the effluxion of time and lack of current environmental information, the Tribunal held that it was not in a...

Court Disposition

Appeal partially upheld; refusal of Water Use Licence set aside; matter remitted for reconsideration.

Orders

  • The Water Use Licence Application is remitted to the Responsible Authority for reassessment under departmental guidelines applicable to mining sector water use authorisations.
  • The Responsible Authority must review existing and any additional information necessary to satisfy statutory and guideline requirements.