Jacobus and Another v Department of Water Affairs and Forestry (WT25/05/2006) [2009] ZAWT 18 (6 October 2009)

Jacobus and Another v Department of Water Affairs and Forestry (WT25/05/2006) [2009] ZAWT 18 (6 October 2009)

The Tribunal found that it did not have jurisdiction under its appeal powers to determine the validity or lawfulness of the ISP, regardless of whether it constituted a catchment management strategy. The existence of the ISP and its earmarking of water for resource poor farmers was not disputed, and the respondent was entitled to consider it as an official document when determining licence applications. The Tribunal's role was to rehear the matter afresh, considering all factors the respondent could lawfully take into account, including the ISP. The appellants failed to show cause for deviation from the ISP to justify issuing the licences. The appropriate avenue for challenging the...

Citation
[2009] ZAWT 18
Parties
Appellant: Barend Jacobus and Anna Catherina Fourie NO; Respondent: Department of Water Affairs and Forestry
Court
Water Tribunal
Jurisdiction
South Africa
Judgment Date
6 October 2009
Case Number
WT25/05/2006
Procedural Posture
Civil Appeal / Appeal Decision
Outcome
Appeal dismissed; respondent's decision confirmed.
Judges
L.J Lekale, A.S Hadebe, H Thompson, A.S Makhanya
Legal Topics
Water Use Licensing, Catchment Management Strategy, Ministerial Discretion, Appeal Jurisdiction
Administrative Law Land and Property Water Use Licensing Catchment Management Strategy Ministerial Discretion Appeal Jurisdiction

Case Brief

Summary, issues, holding and outcome

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Parties

Barend Jacobus and Anna Catherina Fourie NO

Appellant

Department of Water Affairs and Forestry

Respondent

Procedural Posture

Civil Appeal / Appeal Decision

Legal Issues

  1. 1 Does the Water Tribunal have jurisdiction to declare the Internal Strategic Perspective (ISP) invalid or unlawful?
  2. 2 Is the ISP lawful insofar as it earmarks water for resource poor farmers?
  3. 3 Should the refusal of water use licences to the appellants be set aside and licences granted?

Ratio Decidendi

The Tribunal found that it did not have jurisdiction under its appeal powers to determine the validity or lawfulness of the ISP, regardless of whether it constituted a catchment management strategy. The existence of the ISP and its earmarking of water for resource poor farmers was not disputed, and the respondent was entitled to consider it as an official document when determining licence applications. The Tribunal's role was to rehear the matter afresh, considering all factors the respondent could lawfully take into account, including the ISP. The appellants failed to show cause for deviation from the ISP to justify issuing the licences. The appropriate avenue for challenging the...

Court Disposition

Appeal dismissed; respondent's decision confirmed.

Orders

  • The appeal is dismissed.
  • The decision of the Department of Water Affairs and Forestry is confirmed.