Michden Family Trust v The Acting Provincial Head: Mpumalanga Department of Water And Sanitation (WT05/17/MP) [2021] ZAWT 4 (28 June 2021)

Michden Family Trust v The Acting Provincial Head: Mpumalanga Department of Water And Sanitation (WT05/17/MP) [2021] ZAWT 4 (28 June 2021)

The Tribunal found that the appellant had engaged in the verification process set out in Section 35 of the National Water Act, resulting in confirmation of existing lawful water use by the responsible authority in 2016. The respondent's directive was issued more than a year after this confirmation and failed to follow the verification procedure required by the Act. The Tribunal held that the Act does not require identification of a specific water resource for lawful water use, and the evidence, including expert testimony and documentary records, established that the appellant had existing lawful water use, including abstraction from the Damara River. The withdrawal of confirmation was...

Citation
[2021] ZAWT 4
Parties
Appellant: Michden Family Trust; Respondent: The Acting Provincial Head: Mpumalanga Department of Water and Sanitation
Court
Water Tribunal
Jurisdiction
South Africa
Judgment Date
28 June 2021
Case Number
WT05/17/MP
Procedural Posture
Civil Appeal / Appeal Against Directive Issued Under Section 53(1) of the National Water Act
Outcome
Appeal upheld. Directive and withdrawal of confirmation set aside. Appellant's existing lawful water use recognised, including abstraction from Damara River and storage of water.
Judges
L Mbanjwa
Legal Topics
National Water Act, Existing Lawful Water Use, Verification of Water Use, Administrative Action, Rectification of Contravention
Administrative Law Environmental Law National Water Act Existing Lawful Water Use Verification of Water Use Administrative Action Rectification of Contravention

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Parties

Michden Family Trust

Appellant

The Acting Provincial Head: Mpumalanga Department of Water and Sanitation

Respondent

Procedural Posture

Civil Appeal / Appeal Against Directive Issued Under Section 53(1) of the National Water Act

Legal Issues

  1. 1 Whether the appellant's water use from the Damara River constitutes an existing lawful water use under the National Water Act.
  2. 2 Whether the respondent's directive and subsequent withdrawal of confirmation of lawful water use were valid administrative actions.
  3. 3 Whether identification of a specific water resource is required for lawful water use under the Act.

Ratio Decidendi

The Tribunal found that the appellant had engaged in the verification process set out in Section 35 of the National Water Act, resulting in confirmation of existing lawful water use by the responsible authority in 2016. The respondent's directive was issued more than a year after this confirmation and failed to follow the verification procedure required by the Act. The Tribunal held that the Act does not require identification of a specific water resource for lawful water use, and the evidence, including expert testimony and documentary records, established that the appellant had existing lawful water use, including abstraction from the Damara River. The withdrawal of confirmation was...

Court Disposition

Appeal upheld. Directive and withdrawal of confirmation set aside. Appellant's existing lawful water use recognised, including abstraction from Damara River and storage of water.

Orders

  • Respondent's Directive in terms of Section 53(1) of the National Water Act dated 11 September 2017 is set aside.
  • Respondent's Notice of Intention to Withdraw confirmation of existing lawful water use on Farm But-An-Ben 586 L Portion O and the subsequent withdrawal are set aside.