Ramah Farming v Great Fish River Water Users Association and Others (2614/2019) [2020] ZAECGHC 119; 2021 (2) SA 547 (ECG) (13 October 2020)

Ramah Farming v Great Fish River Water Users Association and Others (2614/2019) [2020] ZAECGHC 119; 2021 (2) SA 547 (ECG) (13 October 2020)

The court held that the National Water Act does not expressly prohibit trading in water use entitlements between private parties, provided such transactions comply with the Act's requirements. However, the specific transactions in question did not comply with section 25, as the retention and sale of water use entitlements by Rooiakkers were not effected to facilitate a particular licence application as required. The purported sale and retention of water use entitlements without surrender and licensing were unlawful. The applicant is entitled to declaratory relief confirming its lawful water use entitlements as per the Department's declarations. The first respondent maintained a neutral...

Citation
[2020] ZAECGHC 119
Parties
Applicant: Ramah Farming; Respondent: Great Fish River Water Users Association; Respondent: Lomajasa Beleggings (Pty) Ltd; Respondent: Minister of the Department: Water & Sanitation, Lindiwe Nonceba Sisulu N.O.; Respondent: Department of Water and Sanitation Province of the Eastern Cape
Court
Eastern Cape High Court, Grahamstown
Jurisdiction
South Africa
Judgment Date
13 October 2020
Case Number
2614/2019
Procedural Posture
Civil Application / Judgment on Opposed Application and Counterclaim
Outcome
Application granted in part; declaratory relief issued in favour of the applicant; counterclaim dismissed; costs awarded as specified.
Judges
R E Griffiths
Legal Topics
National Water Act, Existing Lawful Water Use, Transfer of Water Use Entitlements, Statutory Interpretation, Declaratory Relief
Administrative Law Land and Property National Water Act Existing Lawful Water Use Transfer of Water Use Entitlements Statutory Interpretation Declaratory Relief

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Parties

Ramah Farming

Applicant

Great Fish River Water Users Association

Respondent

Lomajasa Beleggings (Pty) Ltd

Respondent

Minister of the Department: Water & Sanitation, Lindiwe Nonceba Sisulu N.O.

Respondent

Department of Water and Sanitation Province of the Eastern Cape

Respondent

Procedural Posture

Civil Application / Judgment on Opposed Application and Counterclaim

Legal Issues

  1. 1 Whether the National Water Act permits trading in water use entitlements between private parties.
  2. 2 Whether the retention and sale of water use entitlements by a predecessor in title contravened the Act.
  3. 3 Whether the applicant is entitled to the declaratory orders sought regarding water use entitlements.

Ratio Decidendi

The court held that the National Water Act does not expressly prohibit trading in water use entitlements between private parties, provided such transactions comply with the Act's requirements. However, the specific transactions in question did not comply with section 25, as the retention and sale of water use entitlements by Rooiakkers were not effected to facilitate a particular licence application as required. The purported sale and retention of water use entitlements without surrender and licensing were unlawful. The applicant is entitled to declaratory relief confirming its lawful water use entitlements as per the Department's declarations. The first respondent maintained a neutral...

Court Disposition

Application granted in part; declaratory relief issued in favour of the applicant; counterclaim dismissed; costs awarded as specified.

Orders

  • The applicant's lawful water use entitlement in respect of lot 67 and lot 68 in the Great Fish River Settlement is declared as 250,000m³ for use on 20 hectares (lot 67) and 305,000m³ for use on 24.4 hectares (lot 68), in accordance with the declarations annexed to the notice of motion.
  • The first respondent is ordered to deliver to the applicant the volumes of water provided for in the declarations annexed to the notice of motion.