Shalom Trust and Others v Department of Water and Sanitation and Others (WT 259/16/CPT) [2019] ZAWT 4 (29 March 2019)

27(1}in this repo,t

in this repo,t

IN THEWATERTRIBUNAL

IN THE

TRIBUNAL

Intheappealof:

appeal

SHALOMTRUST FIRST

APPELLANT

SHALOM

TRUST FIRST

APPELLANT

SUSANNA EUZABETH MATHEWSON SECOND

APPELLANT

SUSANNAELIZAIJETH MATHEWSONTHIRD APPELLANT

SUSANNA

ELIZAIJETH MATHEWSON

THIRD APPELLANT

CATHERINEISABELBROOKES FOURTH

APPELLANT

CATHERINE

ISABEL

BROOKES FOURTH

APPELLANT

CHARLISEHELENE LOUW FIFTH

APPELLANT

CHARLISE

HELENE LOUW FIFTH

APPELLANT

DEPARTMENTOF WATERANDSANITATIONFIRST RESPONDENT

DEPARTMENT

OF WATER

SANITATION

FIRST RESPONDENT

DEPARTMENT OF AGRICULTURE,

LAND REFORM ANDSECONDRESPONDENT

LAND REFORM AND

SECOND

RESPONDENT

RURALDEVELOPMENT

DEVELOPMENT

ORANGE PROTO CATCHMENT

MANAGEMENTAGENCYTHIRD RESPONDENT

MANAGEMENT

AGENCY

THIRD RESPONDENT

JUDGMENT

1.Before this judgment could be written in a manner that makes sense and deal directly with the matters raised in the appeal, extensive sifting, reorganisation and categorisation of the Notice of Appeal had to be done. Insofar as that was necessary counsel for the Appellant carries the blame because the notice of appeal, to put it mildly was confusing.

Before this judgment could be written in a manner that makes sense and deal directly with the matters raised in the appeal, extensive sifting, reorganisation and categorisation of the Notice of Appeal had to be done. Insofar as that was necessary counsel for the Appellant carries the blame because the notice of appeal, to put it mildly was confusing.

ForpurposesofexpediencyIwillrefertotherightsmentionedinthisparagraph as old order water rights.

purposes

expediency

rights

mentioned

paragraph as old order water rights.

4.The letter from the First Respondent dated 11'1 March 2016issilent about old order water rights. Regrettably, Appellants did not attach their original application to the Notice of Appeal. Itis therefore impossible to determine whether the alleged old order water rights of the First Appellant were petitioned for before the First Respondent.

The letter from the First Respondent dated 11'1 March 2016

silent about old order water rights. Regrettably, Appellants did not attach their original application to the Notice of Appeal. It

is therefore impossible to determine whether the alleged old order water rights of the First Appellant were petitioned for before the First Respondent.

5.Intermsof Rule 7(1)Water Tribunal Rules, GovernmentGazette Number 28060 published on the 23 September 2005 appeals and applications to the Tribunal take the form of a re-hearing. Itis therefore important for the Tribunal to have sight of both the failed application and the impugned decision. As things currently stand it would seem that Appellants did not canvass these alleged old order water rights when they applied for water rights to the First Respondent. In the premises the Water Tribunal ought not to consider any argument on the old order water rights since those arguments are brought before this Water Tribunal for the very first time. However for purposes of completeness these alleged old order water rights are addressed inthis judgment.

of Rule 7(1)Water Tribunal Rules, GovernmentGazette Number 28060 published on the 23 September 2005 appeals and applications to the Tribunal take the form of a re-hearing. It

Water Tribunal Rules, Government

is therefore important for the Tribunal to have sight of both the failed application and the impugned decision. As things currently stand it would seem that Appellants did not canvass these alleged old order water rights when they applied for water rights to the First Respondent. In the premises the Water Tribunal ought not to consider any argument on the old order water rights since those arguments are brought before this Water Tribunal for the very first time. However for purposes of completeness these alleged old order water rights are addressed in

this judgment.

THE GROUNDS OF APPEAL AS SET OUT IN THE NOTICE OF APPEAL

6.Thefirstgroundofappealreadsasfollows:-

ground

follows:-

"TheFirstRespondent(beingtheDepartmentofWater andSanitation)failed to set aside, reconsider or amend the decision of the Department of Water Affairs made on the 7thDecember 1987 by refusing the Second Appellant the right to exercise the right afforded her in terms of Government Notice 1676, published in the Government Gazette of the Republic of South Africa No 9869 Volume 243 published on the 26™July 1985 inPretoria."

Respondent

(being

Department

Water and

Sanitation)

failed to set aside, reconsider or amend the decision of the Department of Water Affairs made on the 7

December 1987 by refusing the Second Appellant the right to exercise the right afforded her in terms of Government Notice 1676, published in the Government Gazette of the Republic of South Africa No 9869 Volume 243 published on the 26™

July 1985 in

Pretoria."

7.GG Notice 1676 appears on page 226 of the appeal record. A reading of that Notice indicates clearly that for a person to derive rights In respect of a Government Water Control Area that person must be the registered owner of the land.

GG Notice 1676 appears on page 226 of the appeal record. A reading of that Notice indicates clearly that for a person to derive rights In respect of a Government Water Control Area that person must be the registered owner of the land.

8.TheAppellants'NoticeofMotionundertheheading"Parties"refersto the Second Appellant as Susanah Elizabeth Matthewson.•Because there are two Susanah Elizabeth Matthewson in the papers Iwillreferto the Second Appellant as Susanah the Senior. It is difficult to understand how Susanah the Senior could have had the locus standi in 2014 to bring an application to set aside, reconsider or amend the decision of the First Respondent denying her water rights in respect of the farm Stoffelhoek 81 Hopetown district because on that date she was no longer the registered owner of that farm. The Notice of Appeal places ownership of the farm Stoffelhoek 81with theFirst Appellant Shalom Trust.

Appellants'

Notice

Motion

heading

"Parties"

refers

to the Second Appellant as Susanah Elizabeth Matthewson.•Because there are two Susanah Elizabeth Matthewson in the papers I

to the Second Appellant as Susanah the Senior. It is difficult to understand how Susanah the Senior could have had the locus standi in 2014 to bring an application to set aside, reconsider or amend the decision of the First Respondent denying her water rights in respect of the farm Stoffelhoek 81 Hopetown district because on that date she was no longer the registered owner of that farm. The Notice of Appeal places ownership of the farm Stoffelhoek 81

with the

First Appellant Shalom Trust.

9.Consequently,thefirstgroundof appealisincompetentduetoabsenceoflocusstandi on the part of the Second Appellant, Susanah the Senior.

Consequently,

of appeal

incompetent

absence

standi on the part of the Second Appellant, Susanah the Senior.

10.Thatishowevernotall.FirstRespondent, whenitrefusedSusanahtheSenior waterrightson the 1'December 1987 was exercising an administrative function, consequentlyitbecamefunctusofficio,assuchitwouldbeimpossibleforitto setaside,reconsideroramend itsdecision.

however

Respondent, when

refused

Susanah

Senior water

on the 1

December 1987 was exercising an administrative function, consequently

became

functus

officio,

impossible

to set

aside,

reconsider

amend its

decision.

11.Theothervalidargumentagainstreviving theapplicationforwater userights refusedinDecember1987 is thatraisedby the First Respondent in paragraph 1.5 of its reply, page 701 of the Indexed and paginated papers, a time lapse of twenty nine years. The validity of this submission was conceded to by counsel for the Appellants in that he abandoned this ground of appeal in paragraph 3 of his Heads of Arguments dated 28thFebruary 2018.

argument

against

reviving the

application

water use

rights refused

December

1987 is that

raised

by the First Respondent in paragraph 1.5 of its reply, page 701 of the Indexed and paginated papers, a time lapse of twenty nine years. The validity of this submission was conceded to by counsel for the Appellants in that he abandoned this ground of appeal in paragraph 3 of his Heads of Arguments dated 28

February 2018.

12.Inmaking that concession counsel for the Appellants however took with the one hand what he had given with the other in that he introduced in his Heads of Arguments a new appeal ground stated as follows "..:..... that by operation ofsection 40(2)of the 1998 Ad,the appeal In respect of the 1987 decision should be dealt with asbeing an application forwater use under this act"

making that concession counsel for the Appellants however took with the one hand what he had given with the other in that he introduced in his Heads of Arguments a new appeal ground stated as follows "..:..... that by operation ofsection 40(2)of the 1998 Ad,

section 40(2)

the appeal In respect of the 1987 decision should be dealt with as

being an application for

water use under this act"

13.Toanswerthislatterlyformulatedchallengeonemusttumtotheprovisionsof section40(2) of the 1998 National Water Act and same provide as follows:­"40(2) Where a person has made an application for an authorization to use water underanotherAct,and thatapplicationhasnot beenfinalizedwhenthisAct takes effect, the application must regarded as an application under the Act".(own underlining)

answer

latterly

formulated

challenge

provisions

of section

40(2) of the 1998 National Water Act and same provide as follows:­

"40(2) Where a person has made an application for an authorization to use water under

another

and that

not been

finalized

Act takes effect, the application must regarded as an application under the Act".(own underlining)

14.Appellants have attached to their own papers a letter from the erstwhile Department of Water Affairs, dated 7 December 1987 refusing the water use rights. The attachment is marked annexure B and appears on page 221 of the Appeal record. Further they themselves in page 191 of the record refer to the latter attachment as "unsubstantiated refusal of application." Refusal of the application under the old Act means that, that application was finalised.

Appellants have attached to their own papers a letter from the erstwhile Department of Water Affairs, dated 7 December 1987 refusing the water use rights. The attachment is marked annexure B and appears on page 221 of the Appeal record. Further they themselves in page 191 of the record refer to the latter attachment as "unsubstantiated refusal of application." Refusal of the application under the old Act means that, that application was finalised.

15.Inthe circumstancescounsel's Heads ofArgumentare at odds with both the Appeal record and the National Water Act. Therefore this attempt to rescue the ill-fated 1987 applicationalsofails.

the circumstances

counsel's Heads of

Argument

are at odds with both the Appeal record and the National Water Act. Therefore this attempt to rescue the ill-fated 1987 application

fails.

16.I now turn to the second ground of appeal which is formulated as follows:-

I now turn to the second ground of appeal which is formulated as follows:-

"The First Respondent performed their administrative functions improperly in not considering the recommendation by the Second Respondent (Department of Agriculture, Land Reform and Rural Development) as to the water held or availability thereof."

17.Appellantsdonotintheirnoticeofappealreferus ·expresslytothealleged recommendation. Itis therefore impossible to evaluate this "recommendation from the Department of Agriculture"

Appellants

notice

us ·expressly

alleged recommendation. It

is therefore impossible to evaluate this "recommendation from the Department of Agriculture"

18.What however complicates matters for the Appellants is the following:- On the 27f11 January 2017 they filed " a reply and amplification of the Appellants' grounds of appeal in terms ofRule 3(2)of theWater Tribunal Rules. Inthe latter document Appellants deal with a letter from the Second Respondent, the Department of Agriculture and attach same as annexure "I". Annexure "I"isfound In pages 179 and 180 of the appeal record.

What however complicates matters for the Appellants is the following:- On the 27f11 January 2017 they filed " a reply and amplification of the Appellants' grounds of appeal in terms ofRule 3(2)of theWater Tribunal Rules. In

Rule 3(2)

Water Tribunal Rules. In

the latter document Appellants deal with a letter from the Second Respondent, the Department of Agriculture and attach same as annexure "I". Annexure "I"

found In pages 179 and 180 of the appeal record.

19.Annexure "I"advises the attorneys of the Appellants that all water in the Orange River Development has been allocated and give details of the allocation.

Annexure "I"

advises the attorneys of the Appellants that all water in the Orange River Development has been allocated and give details of the allocation.

20.Therefore,theonlyrecommendationfromtheSecond Respondentplacedbefore theWaterTribunalwasthatallwaterhasbeenallocated,ergo, there is no water available for allocation to the First Appellant. I am deliberately referring to the First Appellant because for reasons that will be explained hereunder Second to Fifth Appellants have no locus standi to bring this appeal before the Water Tribunal.

Therefore,

recommendation

Second Respondent

placed

before the

Tribunal

allocated,

ergo, there is no water available for allocation to the First Appellant. I am deliberately referring to the First Appellant because for reasons that will be explained hereunder Second to Fifth Appellants have no locus standi to bring this appeal before the Water Tribunal.

21.TheThirdgroundofappealinthenoticeofappealreadsasfollows:-

"The Second Respondent (Department of Agriculture Land Reform and Rural Development) submitted to the First Respondent (Department of Water and Sanitation) information regarding the availability of water without allowing the Appellants to present a Business Plan for and In support of the grantingof awater license."

"The Second Respondent (Department of Agriculture Land Reform and Rural Development) submitted to the First Respondent (Department of Water and Sanitation) information regarding the availability of water without allowing the Appellants to present a Business Plan for and In support of the granting

water license."

22.Thisgroundofappealisbasedonerroneousreasoning :- theBusinessPlanis irrelevantwhereapplicationforawateruselicenseoccursInrespectofawater resourcewherewaterallocationhasalreadybeenexhausted.Iwilldealherewith under with the relevant provisions of the National Water Act supporting this contention.

erroneous

reasoning :- the

Business

is irrelevant

license

occurs

respect

water resource

allocation

already

exhausted.

herewith under with the relevant provisions of the National Water Act supporting this contention.

23.The Fourth ground of appeal contains three distinct statements and Iwill for purposes of facilitating analysis deal with each statement separately. The first statement reads as follows: - "The First Respondent failed to determine or properly determine the availability of water held by the Second Respondent and or the ThirdRespondent" In order to properly understand the meaning of thisstatement it must be dealt with in the context of the applicable legislation, the National Water Act of 1998.

The Fourth ground of appeal contains three distinct statements and I

will for purposes of facilitating analysis deal with each statement separately. The first statement reads as follows: - "The First Respondent failed to determine or properly determine the availability of water held by the Second Respondent and or the Third

Respondent" In order to properly understand the meaning of this

statement it must be dealt with in the context of the applicable legislation, the National Water Act of 1998.

24.AlthoughbothAppellantsandtheofficialsoftheFirstRespondent(andby associationCounselforFirstRespondent)seem toresortundertheimpression thattheAppellants'applicationforawateruselicenseundertheNationalWater Actisgovernedsolelybysection40readwithsection41thereof,thatisnotso because of the following:-

Although

officials

by association

Counsel

seem to

resort

impression that

National

Water Act

governed

solely

section

thereof

so because of the following:-

25.Sections 40, and 41 are of general application to all _license applications. The National Water Act however goes further and distinguishes two separate categories of license applications with the following respective headings:-

Sections 40, and 41 are of general application to all _license applications. The National Water Act however goes further and distinguishes two separate categories of license applications with the following respective headings:-

Part7:Individualapplicationsforlicenses,and

Individual

applications

licenses,

Part8:Compulsorylicenseforwateruseinrespectofaspecificresource.

Compulsory

specific

resource.

26.To understandthe differencebetween the two parts itis helpful toreproduce hereunder the relevant portion of the explanatory note for each part.

To understand

the difference

between the two parts it

is helpful to

reproduce hereunder the relevant portion of the explanatory note for each part.

TheexplanatorynoteforPart7providesasfollows:

explanatory

provides

follows:

"Thissetsouttheprocedureswhichapplyinallcasewhere alicenseisrequired to use water, but where no general invitation to apply for licenses has been issued under Part 8"

procedures

where a

required to use water, but where no general invitation to apply for licenses has been issued under Part 8

27.ForPart8theexplanatorynoteprovidesasfollows:-

This Part establishes a procedure for a responsible authority to undertake compulsory licensing of any aspect of water use inrespect of one or more waterresourceswithina specific geographicarea..."(own underlining)

respect of one or more water

resources

within

a specific geographic

area..."(

28.Appellants'applicationclearlyfallsunderPart8becauseofthefollowing reasons:-

clearly

because

following reasons:-

(i)Intheir now abandoned ground of appeal, appeal against refusal of water use under the 1956 Water Act, Appellants relied on Government Notice number 1646, published on the 26thJuly1985,the latter document appears on page 225 of the appeal record. The Notice has the following heading '' ORANGE RIVER (VANDERKLOOF), MIDDLEORANGERIVER,ORANGERIVER(NAMAQUALAND),LOWERORANGERIVER,GREATASHRIVERANDASH-SUNDAYSRIVERGOVERNMENTWATERCONTROL AREA.Theheading. Clearlyrefers tospecific water resources within a government water control area, the latter denoting a specific geographic area.

their now abandoned ground of appeal, appeal against refusal of water use under the 1956 Water Act, Appellants relied on Government Notice number 1646, published on the 26

the latter document appears on page 225 of the appeal record. The Notice has the following heading '' ORANGE RIVER (VANDERKLOOF), MIDDLE

ORANGE

RIVER,

(NAMAQUALAND),

ASH-SUNDAYS

GOVERNMENT

CONTROL AREA.

heading. Clearly

refers to

specific water resources within a government water control area, the latter denoting a specific geographic area.

(ii)IntherecordofrecommendationforthelicenseapplicationoftheAppellants,a document of the Chief Directorate Water Use Authorization, at paragraph 2.2: Project Description, the following appears "This

water use license application is for taking water from Orange River to use for agricultural purposes,"

record

Appellants,

a document of the Chief Directorate Water Use Authorization, at paragraph 2.2: Project Description, the following appears "This

water use license application is for taking water from Orange River to use for agricultural purposes,"

(iii)Inthecircumstancesitseemstobecommoncausebetweenthepartiesthat thewater will come from the Orange River,a water resource(own underlining) within a specific geographic area as provided for in Part 8 of the National Water Act.

circumstances

common

between

parties

that the

water will come from the Orange River,

a water resource

(own underlining) within a specific geographic area as provided for in Part 8 of the National Water Act.

29.In terms of the National Water Act, a water use application falling under Part 8 is governed specifically by sections 43,44,45,46 and 47 insofar as substantive provisions for the application are concerned.

In terms of the National Water Act, a water use application falling under Part 8 is governed specifically by sections 43,44,45,46 and 47 insofar as substantive provisions for the application are concerned.

30.FortheAppellants[1]casethefollowingsections of Part 8 are important:-

Appellants[1]

following

sections of Part 8 are important:-

"Section 43, Compulsory license application- (i) If it is desirable that water use in respect of one or more water resources within a specific geographic area be licensed-

(a)To achieve a fair allocation of water from a water resource in accordance with section 45

To achieve a fair allocation of water from a water resource in accordance with section 45

(i)..........................

..........................

(ii)Whenitisnecessarytoreviewprevailingwaterusetoachieveequityin allocation..............................................................................................

necessary

review

prevailing

achieve

equity

in allocation..............................................................................................

The responsible authority may issue a notice requiring persons to apply for licenses for one or more types of water use contemplated in section 21..."

"Section45Proposedallocationschedules.

"Section

Proposed

schedules.

31.Section 47 Anal allocation schedule- {1) a preliminary allocation schedule becomes a final allocation schedule-

Section 47 Anal allocation schedule- {1) a preliminary allocation schedule becomes a final allocation schedule-

(a)(i)Ifnoappealislodgedwithinthetimelimit;

lodged

limit;

(ii)Ifithas been amended following every successful appeal or

has been amended following every successful appeal or

(iii)Ifeveryappeallodgedisdismissed;and

dismissed;

(b)OnpublicationbytheresponsibleauthorityofanoticeintheGazette-

publication

responsible

authority

Gazette-

(i) Stating that a preliminary allocation schedule has become final; and (ii)

32.A responsible authority must, as soon as reasonably practicable after a preliminary allocation schedule becomes final, issue licenses according to the allocations provided for it''

A responsible authority must, as soon as reasonably practicable after a preliminary allocation schedule becomes final, issue licenses according to the allocations provided for it''

33.IhaveconscientiouslyreproducedthesalientprovisionsofPart8oftheNationalWater Act because itseems to me as stated before that none of the counsel representing the parties were aware of the importance of determining whether Appellants' application for water use was governed by Part 7 or resorted under Part 8.

conscientiously

reproduced

salient

Water Act because it

seems to me as stated before that none of the counsel representing the parties were aware of the importance of determining whether Appellants' application for water use was governed by Part 7 or resorted under Part 8.

34.InmyevaluationthefactthatthewateruselicenseapplicationoftheAppellants resortunderPart8hasthefollowingconsequencesandorimplications.

evaluation

Appellants resort

consequences

implications.

(I)In their third ground of appeal ( Irepeat It here for·clarity) Appellants stated that the Second Respondent (being the Department of Agriculture, Land Reform and Rural Development) submitted to the First Respondent information regarding the availability of water without allowing the Appellants to present a Business Plan for, and in support of the granting of a water license.

In their third ground of appeal ( I

repeat It here for·clarity) Appellants stated that the Second Respondent (being the Department of Agriculture, Land Reform and Rural Development) submitted to the First Respondent information regarding the availability of water without allowing the Appellants to present a Business Plan for, and in support of the granting of a water license.

35.Regrettablyabusinessplanhoweverexcellentmightnothavebeenofanyusein thespecificcircumstancesoftheAppellants'wateruseapplicationbecausethe SecondRespondentinIts letterdated11January2016 Annexure 1 to the Notice of Appeal) addressed to the attorneys of the Appellants, Messrs Matthewson Gess Inc spells out in detail that all water has been allocated. Annexure "I" is to be found at page 179 of the appeal record.

Regrettably

business

excellent

in the

the Second

Its letter

January

2016 Annexure 1 to the Notice of Appeal) addressed to the attorneys of the Appellants, Messrs Matthewson Gess Inc spells out in detail that all water has been allocated. Annexure "I" is to be found at page 179 of the appeal record.

36.Section47(2) citedabovemakes itclearthatoncetheallocationschedule isfinalthenextstepisissuingoflicensestotheallocates.

Section

47(2) cited

makes it

schedule is

issuing

licenses

allocates.

37.NoevidenceofallocationtotheAppellantswaspresentedtotheWaterTribunal and in the absence of such evidence I am compelled to accept that Appellants had no water allocation that could be converted to a licence in terms of section47(2)

evidence

presented

Tribunal and in the absence of such evidence I am compelled to accept that Appellants had no water allocation that could be converted to a licence in terms of section

38.Further,becauseoftheprovisionofsection45(3)(aresponsibleauthorityisunder no obligation to allocate all available water) Appellants cannot without following the objection procedure set out in section 46(1) complain about non allocation.

Further,

provision

under no obligation to allocate all available water) Appellants cannot without following the objection procedure set out in section 46(1) complain about non allocation.

39.However, the nail In the coffin for the Appellants is section 46(1) (b) which provides that where there is dissatisfaction with the preliminary allocation schedule and an objection has been unsuccessful, the affected party may appeal to the Water Tribunal.

However, the nail In the coffin for the Appellants is section 46(1) (b) which provides that where there is dissatisfaction with the preliminary allocation schedule and an objection has been unsuccessful, the affected party may appeal to the Water Tribunal.

40.In the present proceedings the Water Tribunal has no jurisdiction because the Appellants are appealing against a final allocation whilst the Water Tribunal is only granted authority in terms of the National Water Act to handle appeals against preliminary allocation schedules.

In the present proceedings the Water Tribunal has no jurisdiction because the Appellants are appealing against a final allocation whilst the Water Tribunal is only granted authority in terms of the National Water Act to handle appeals against preliminary allocation schedules.

41.To be fair to the Appellants, an argument may be raised to the effect that the First Respondent has not raised in its papers and during argument this whole issue of Part 8 and how allocations are done. That may be so, unfortunately however there Is only one section in the National Water Act that deals with allocations and that is Part 8, consequently the Appellants' appeal must of necessity be dealt with under this part of the Act. Also, the evidence however limited presented to the Water Tribunal is sufficient to enable me to make a conclusion that the allocation was done following the process set out in the adore-cited sections of Part 8.

To be fair to the Appellants, an argument may be raised to the effect that the First Respondent has not raised in its papers and during argument this whole issue of Part 8 and how allocations are done. That may be so, unfortunately however there Is only one section in the National Water Act that deals with allocations and that is Part 8, consequently the Appellants' appeal must of necessity be dealt with under this part of the Act. Also, the evidence however limited presented to the Water Tribunal is sufficient to enable me to make a conclusion that the allocation was done following the process set out in the adore-cited sections of Part 8.

42.I am fortified in my conclusions by the legal maxim that all administrative acts are presumed to have been done in an administratively correct and proper manner.

I am fortified in my conclusions by the legal maxim that all administrative acts are presumed to have been done in an administratively correct and proper manner.

43.Reverting back to the Fourth ground of appeal, I now proceed to deaf with the second statement contained in thisground. That statement is as follows:-

Reverting back to the Fourth ground of appeal, I now proceed to deaf with the second statement contained in this

ground. That statement is as follows:-

" ...furthermore ignoring the fact that the Second Appellants' rights transferred and vested in the First Appellant were further violated "

44.This statement is erroneous in both law and fact. Second Appellant never acquired any water use rights under the 1956 Water •Act. Itis common cause that she was refused such right, hence the initial ground of appeal. Prudently, counsel for the Appellants withdrew that ground of appeal. Because Second Appellant never had water use rights it is therefore tritethat there were no rights to transfer to the First Appellant, and by the same reasoning no water use rights vested In the First Appellant

This statement is erroneous in both law and fact. Second Appellant never acquired any water use rights under the 1956 Water •Act. It

is common cause that she was refused such right, hence the initial ground of appeal. Prudently, counsel for the Appellants withdrew that ground of appeal. Because Second Appellant never had water use rights it is therefore trit

that there were no rights to transfer to the First Appellant, and by the same reasoning no water use rights vested In the First Appellant

45.This erroneous reasoning is an echo of a letter written by the attorneys of the Appellants Messrs Matthewson Gess Inc dated 9 June 2014 to the Department of Water and Sanitation (First Respondent herein) wherein the attorneys asked the Minister to reconsider the application of Mrs Matthweson in terms of section 33. of theNational Water Act 36 of 1998.Section 33is dear. It assists people who are already lawfully using the water in terms of the 1956 Water Act to continue with that lawful water use under theNationalWater Act andIf they so wish have it licensed. There is no doubt on the vivavoceevidence submitted to the Water Tribunal that Mrs Matthewson Senior never had water use rights under the 1956 Water Act.

This erroneous reasoning is an echo of a letter written by the attorneys of the Appellants Messrs Matthewson Gess Inc dated 9 June 2014 to the Department of Water and Sanitation (First Respondent herein) wherein the attorneys asked the Minister to reconsider the application of Mrs Matthweson in terms of section 33

. of theNational Water Act 36 of 1998.Section 33is dear. It assists people who are already lawfully using the water in terms of the 1956 Water Act to continue with that lawful water use under theNationalWater Act andIf they so wish have it licensed. There is no doubt on the viva

National Water Act 36 of 1998

Section 33

Water Act and

evidence submitted to the Water Tribunal that Mrs Matthewson Senior never had water use rights under the 1956 Water Act.

46.Inowturntothelaststatementofthefourthgroundofappeal,andsamereadsas follows:-

statement

fourth

appeal,

as follows:-

"... and by implication violated the rightsofthe Second, Third, Fourth and Fifth Applicants, who are all Historically Disadvantaged Individuals.

47.Thisstatementbringsme totheissueoflocus standioftheFirst,Second,Third, Fourth and Fifth Appellants in these proceedings. Commencing with the First Respondent, same is a Trust. A Trust does not have legal standing per se, ergo, First Appellant could not bring these proceedings, it should have acted through its trustees. Inthe circumstan es what saves the locus standi of the First Appellant in these proceedings is the fact that a Trustee, Susanah Matthewaon

Senior represented It.

brings

locus standi

First,

Second,

Third, Fourth and Fifth Appellants in these proceedings. Commencing with the First Respondent, same is a Trust. A Trust does not have legal standing per se, ergo, First Appellant could not bring these proceedings, it should have acted through its trustees. In

the circumstan es what saves the locus standi of the First Appellant in these proceedings is the fact that a Trustee, Susanah Matthewaon

Senior represented It.

48.Second,Third,FourthandFifthApplicantshavenolocusstandiasbeneficiaries oftheTrustinarepresentativeactiononbehalfoftheTrustItiscommoncause that the farm Stoffelhoek 81 is now owned by Shalom Trust, consequently the water use rights sought will belong to Shalom Trust.

Third,

Fourth

Applicants

standi

beneficiaries of

representative

action

behalf

cause that the farm Stoffelhoek 81 is now owned by Shalom Trust, consequently the water use rights sought will belong to Shalom Trust.

49.Idonotdeemit necessarytodealwiththefifthgroundofappeal,whichground is premised on the allegation that by refusing water rights to Shalom Trust the First Respondent has refused water use rights to Second, Third, Fourth and Fifth Appellants because even if one accepts that because the Trust beneficiaries are predominantly female then the Trust ls female, because of my findings stated above on the applicability of Part 8 of the Water Act and its provisions, more specifically the fact that the allocation schedule is now finalised and the only time anappealtothetribunaliscompetentisduringthepreliminaryallocation schedule.

it necessary

ground is premised on the allegation that by refusing water rights to Shalom Trust the First Respondent has refused water use rights to Second, Third, Fourth and Fifth Appellants because even if one accepts that because the Trust beneficiaries are predominantly female then the Trust ls female, because of my findings stated above on the applicability of Part 8 of the Water Act and its provisions, more specifically the fact that the allocation schedule is now finalised and the only time an

tribunal

competent

during

preliminary

allocation schedule.

50.Inthe premises Imake the following order,

the premises I

make the following order,

1. The appeal is dismissed, the Water Tribunal having no jurisdiction to hear an appeal against refusal of a water use license based on allocatable water In a specific water resources where a final allocation schedule exist in terms ofsection 47of theNationalWater Act, ActNo. 36 of 1998, alternatively where all water has been allocated.

section 47

Water Act, Act

THE PROCEEDINGS

1.Prior to the commencement of the Appeal and in terms of a written request by the Appellants, the Tribunal issued a subpoena instructing the First Respondent in terms ofRule 7(1)of Schedule 6 of the NWA to provide the following information and documentation at the hearing: -

Prior to the commencement of the Appeal and in terms of a written request by the Appellants, the Tribunal issued a subpoena instructing the First Respondent in terms ofRule 7(1)of Schedule 6 of the NWA to provide the following information and documentation at the hearing: -

Rule 7(1)

':.4ny document which may include advice, opinion, policy recommendations, discussions, information or considerations in respect of the following:

(i)The exact amount of hectares ofwater licence that has been granted to the Applicants for4000 HA;

The exact amount of hectares of

water licence that has been granted to the Applicants for

4000 HA;

(ii)The names oftherecipients ofthe water licenses;

The names of

recipients of

the water licenses;

(iii)The farms where the water licence and waterusage is used;

The farms where the water licence and water

usage is used;

(Iv) The number of female applicants who have received water licences;

(v)Whetherany allocations were made after the11"'ofMarch 2016;

Whether

any allocations were made after the

March 2016;

(vi)Whetherstrategieswere putinplace toensure genderequalityinthe allocationof water licences;

strategies

were put

place to

ensure gender

equality

the allocation

of water licences;

(vii)The number offemale applicantswho are also the owners ofthe farmerswhere the water rights will be used;

The number of

female applicants

who are also the owners of

the farmers

where the water rights will be used;

(vili)Any other information or considerations taken into account or relevant to the decision;

(ix)AnyrecommendationreceivedfromtheCoordinatingCommitteeonAgricultural Water Northern Cape (CCAW);

received

Coordinating

Committee

Agricultural Water Northern Cape (CCAW);

(x)7ne date and place where Shalom Trust Business Plan was considered by the Department of Agriculture Land Reform&Rural Development as well as the parties who maderepresentationsonbehalfof Shalom Trost if thisis alleged;

7ne date and place where Shalom Trust Business Plan was considered by the Department of Agriculture Land Reform

Rural Development as well as the parties who made

representations

of Shalom Trost if this

is alleged;

(xi)7ne recommendation made to the Department of Water and Sanitation and/or Orange PROTO Catchment Management Agency after the consideration of Shalom's Trust's business plan;

7ne recommendation made to the Department of Water and Sanitation and/or Orange PROTO Catchment Management Agency after the consideration of Shalom's Trust's business plan;

(xii)7nedetailsofanyfurtherwaterthathasbeenmadeavailable afterthedecisionwas

details

further

available after

decision

madeinMarch2016,specificallyinJanuary2017."

specifically

2017."

2.In response to the Subpoena the First Respondent in an undated memorandum addressedtothe Tribunalexplainedthe backgroundofthe programrelating to surplus water that was made available within the Orange River System, earmarked for use by resource poor farmers for the development of 12000 ha of irrigation allocated to various Water Management Areas (WMA's).The First Respondent repliedad seriatimto the requests formulated in the subpoena and included the following documents: -

In response to the Subpoena the First Respondent in an undated memorandum addressed

the Tribunal

explained

the background

the program

relating to surplus water that was made available within the Orange River System, earmarked for use by resource poor farmers for the development of 12000 ha of irrigation allocated to various Water Management Areas (WMA's).

The First Respondent replied

ad seriatim

to the requests formulated in the subpoena and included the following documents: -

(i)''.Adetailedschedulecontainingparticularsofallthea/locationsandlicences

detailed

schedule

containing

particulars

a/locations

licences

approved in respect of the allocation of 4000 ha of irrigation right in the lower Orange Water Management Area.(See Annexure•").

approved in respect of the allocation of 4000 ha of irrigation right in the lower Orange Water Management Area.

(See Annexure

(ii)AcopyoftheWaterAllocationReformstrategy(2008).(SeeAnnexure "B"J.

Allocation

Reform

strategy

(2008).

Annexure "B"J.

(iii)A letter dated 11thJanuary 2016 from the Second Respondent to the Appellant's attorneys Mathewson GessInc attorneys.(See Annexure"C';.

A letter dated 11

January 2016 from the Second Respondent to the Appellant's attorneys Mathewson Gess

Inc attorneys.

(See Annexure

(iv)A Memorandum approving the a/location of additional water in addition to that already earmarked for the facilitation ofthe licence application from H.O.l'S in the Orange River Catchment(See Annexure")

A Memorandum approving the a/location of additional water in addition to that already earmarked for the facilitation of

the licence application from H.O.l'S in the Orange River Catchment

3.The Second Respondent filed a Notice toAbide and was not represented during the hearing.(A Notice toAbide was notincluded inthe record).

The Second Respondent filed a Notice to

Abide and was not represented during the hearing.

(A Notice to

Abide was not

included in

the record).

4.TheAppealcommencedon20thNovember2017,waspostponedontheday thereafterand completed on 29thJanuary 2018.

Appeal

commenced

November

postponed

day thereafter

and completed on 29

January 2018.

5.The proceedings were electronically recorded.

The proceedings were electronically recorded.

INTRODUCTION

6.TheTribunalispresentedwithatwo-prongedAppealby–

two-pronged

(i)SHALOM TRUST, the First Appellant, against the decision taken by the Responsible Authority during March 2016 in which its WULA was refused; and

SHALOM TRUST, the First Appellant, against the decision taken by the Responsible Authority during March 2016 in which its WULA was refused; and

(ii)Susanna Elizabeth Mathewson (Senior) the Second Appellant, in her personal capacity against the failure of the Responsible Authority to set aside, reconsider and amend a decision taken by it during December 1987 in which she was refused the right to participate in the allocation of certain water rights.

Susanna Elizabeth Mathewson (Senior) the Second Appellant, in her personal capacity against the failure of the Responsible Authority to set aside, reconsider and amend a decision taken by it during December 1987 in which she was refused the right to participate in the allocation of certain water rights.

7.The nature of the Second Appellant's Appeal given its history and the grounds upon which it relies was considered to be ideally suited to be dealt within ifmine.However, the parties not having prepared argument to do so at the commencement of the Appeal, subsequently provided written Heads to assist the Tribunal in dealing with it.

The nature of the Second Appellant's Appeal given its history and the grounds upon which it relies was considered to be ideally suited to be dealt with

in ifmine.

However, the parties not having prepared argument to do so at the commencement of the Appeal, subsequently provided written Heads to assist the Tribunal in dealing with it.

8.Having considered the written submissions presented by Counsel in respect of her Appeal, it is preferable to deal with it in the manner set out immediately hereunder.

Having considered the written submissions presented by Counsel in respect of her Appeal, it is preferable to deal with it in the manner set out immediately hereunder.

WATER RIGHTS (1987}

9.The Appeal noted by the Second Appellant in her personal capacity is based on the contents of a letter dated 9th June 2014 in which the First Respondent is enjoined to set aside, reconsider and amend a decision of the then Department of Water Affairs taken on 7th December 1987.

The Appeal noted by the Second Appellant in her personal capacity is based on the contents of a letter dated 9th June 2014 in which the First Respondent is enjoined to set aside, reconsider and amend a decision of the then Department of Water Affairs taken on 7th December 1987.

10.That decision denied her the right afforded in terms of Government Notice No 1676 published in the Government Gazette, No. 9869, Volume 243 published on the 26thJuly 1985 in Pretoria to participate in the allocation of water rights determined for allocation and provided for inSection 63(2)(b)read withSection 63(2)of Act 54 of 1956 and Section 3 of the Orange River Development Project Act 78 of 1969 which refers to water use in areas affected by Act 78 of 1969aswellasanyallocationmadeintermsofthedeterminations publishedinthe GovernmentGazetteNotice2473of13November1981 and1406of1 July1983.

That decision denied her the right afforded in terms of Government Notice No 1676 published in the Government Gazette, No. 9869, Volume 243 published on the 26

July 1985 in Pretoria to participate in the allocation of water rights determined for allocation and provided for inSection 63(2)(b)read withSection 63(2)of Act 54 of 1956 and Section 3 of the Orange River Development Project Act 78 of 1969 which refers to water use in areas affected by Act 78 of 1969

Section 63(2)(b)

Section 63(2)

determinations published

the Government

Gazette

1981 and

1 July

11.The nature of the dispute dealt with In detail in paragraph 2 of the Notice of Appeal centres around the purchase of a water use entitlement for irrigation of 200ha of land situated in the Vanderkloof Government Water Scheme in respect of her property known as the farm Remainder of Stoffelshoek 81, in the district of Hopetown.The decision reached on the aforementioned date concluded that:-

The nature of the dispute dealt with In detail in paragraph 2 of the Notice of Appeal centres around the purchase of a water use entitlement for irrigation of 200ha of land situated in the Vanderkloof Government Water Scheme in respect of her property known as the farm Remainder of Stoffelshoek 81, in the district of Hopetown.

The decision reached on the aforementioned date concluded that:-

"Daar isgeen besproelbare grand op die voorgestelde onderverdelingvan Stoffelshoek 81, gevind nie".

"Daar is

geen besproelbare grand op die voorgestelde onderverdeling

van Stoffelshoek 81, gevind nie".

InviewhereoftheSecondAppellant'sapplicationwas refused.

hereof

Second

Appellant's

was refused.

12.Itis this decision that the Second Appellant required the Responsible authority tosetaside,reconsideroramend. Herrequestwasformalisedinthe aforementioned letterbut mistakenlybased on Section33of the NWA. That provision relates to the declaration of a water use as an existing lawful use. (Record Pages 210 -228)

is this decision that the Second Appellant required the Responsible authority to

amend. Her

request

formalised

the aforementioned letter

but mistakenly

based on Section

of the NWA. That provision relates to the declaration of a water use as an existing lawful use. (Record Pages 210 -

13.he Appellant submits in the letter that she is a historically disadvantaged individual.She contends that the previous Government rejected her valid application on grounds that were unfair, unfounded and displayed gender-based discrimination.The Appellant apparently received no response to this request resulting in the Appeal.

he Appellant submits in the letter that she is a historically disadvantaged individual.

She contends that the previous Government rejected her valid application on grounds that were unfair, unfounded and displayed gender-based discrimination.

The Appellant apparently received no response to this request resulting in the Appeal.

14.TheAppellantcontends thattheRespondentsfailedintheirConstitutionalduties as provided for in Section 25(4) and 25(8) of the Constitution of the Republic of South Africa (Act 108 of 1996) in that they collectively and/or individually ignored their Constitutional obligation set out in Section 2 (c) of the NWA Act 1936 of 1998.

Appellant

contends that

Respondents

failed

Constitutional

duties as provided for in Section 25(4) and 25(8) of the Constitution of the Republic of South Africa (Act 108 of 1996) in that they collectively and/or individually ignored their Constitutional obligation set out in Section 2 (c) of the NWA Act 1936 of 1998.

15.The reasons advanced for allegedly failing to properly allocate available water was: -

The reasons advanced for allegedly failing to properly allocate available water was: -

(a)"The fact that the decision reached on ;f'1 December 1987 was based on discriminatory grounds, as the previous refusal had been without any foundation and based on inherently discriminativegender practices.

"The fact that the decision reached on ;f'1 December 1987 was based on discriminatory grounds, as the previous refusal had been without any foundation and based on inherently discriminative

gender practices.

(b)The fact that the First Respondent did not consider, or consider properly the previous discriminative practices and failed to rectify these past discriminatory practices.

The fact that the First Respondent did not consider, or consider properly the previous discriminative practices and failed to rectify these past discriminatory practices.

(c)The fact that the First Respondent made a finding without the recommendation of theSecond Respondent,,

The fact that the First Respondent made a finding without the recommendation of the

Second Respondent

Reference to the''recommendation of the Second Respondent"relates to an issue dealt with by the First Appellant in its Appeal and was in all probability included here in error. This particular aspect of the Appeal will be dealt with herein later.

''recommendation of the Second Respondent"

(AppealRecordPages10-11).

(Appeal

Record

DECISION (with regards to the 1987 water rights)

16.The tribunal is an independent body established in terms ofSection 146(1)of theNational Water Act, Act36 of 1998 and as such is only authorised to hear appeals emanating from those matters referred to inSection 148(a)to (m).

The tribunal is an independent body established in terms ofSection 146(1)of theNational Water Act, Act36 of 1998 and as such is only authorised to hear appeals emanating from those matters referred to inSection 148(a)to (m).

Section 146(1)

National Water Act, Act

Section 148(a)

17.This Appeal is brought before the Water Tribunal for the very first time and falls outside the parameters of its enabling provision.In the premises the Water Tribunal ought not to consider an Appeal of this nature, however, having heard argument in this regard and for purposes of completeness, these alleged'rights"aredealt with in this decision.

This Appeal is brought before the Water Tribunal for the very first time and falls outside the parameters of its enabling provision.

In the premises the Water Tribunal ought not to consider an Appeal of this nature, however, having heard argument in this regard and for purposes of completeness, these alleged

'rights"are

dealt with in this decision.

18.The right on which the Second Appellant's alleged entitlement is based on the authority of the Minister of Water Affairs at the time to determine: -

The right on which the Second Appellant's alleged entitlement is based on the authority of the Minister of Water Affairs at the time to determine: -

"In respect of an owner of land which is situated in a Government water control area mentioned in the Schedule herewith, the maximum right to additional scheduling which may be purchased in terms of this notice

The notice indicates clearly that to derive rights in respect thereof a person must be the registered owner of the land reflected in the schedule and if so, an allocation can be made to a maximum of 80% (eighty percent) of the irrigable land on the property.

(RecordPage226GovernmentNotice1676)

(Record

Government

19.The Appellants' Notice of Appeal under the heading (Parties) cites the Second Appellant as Susanah Elizabeth Matthewson (Senior).It is difficult to understand how the Second Appellant could have acquiredlocus standito apply to the First Respondent on 9thJune 2014 to set aside, reconsider or amend its decision denying her the alleged water rights in respect of the farm Stoffelshoek 81, Hopetown district, as on that date, she was no longer the registered owner of the farm Stoffelshoek 81.

The Appellants' Notice of Appeal under the heading (Parties) cites the Second Appellant as Susanah Elizabeth Matthewson (Senior).

It is difficult to understand how the Second Appellant could have acquired

locus standi

to apply to the First Respondent on 9

June 2014 to set aside, reconsider or amend its decision denying her the alleged water rights in respect of the farm Stoffelshoek 81, Hopetown district, as on that date, she was no longer the registered owner of the farm Stoffelshoek 81.

20.The Notice of Appeal clearly places ownership of the farm Stoffelshoek 81 at that time with the First Appellant Shalom Trust and consequently, the appeal is ill founded due to the absence oflocus standion the part of the Second Appellant.

The Notice of Appeal clearly places ownership of the farm Stoffelshoek 81 at that time with the First Appellant Shalom Trust and consequently, the appeal is ill founded due to the absence of

on the part of the Second Appellant.

21.In any event the First Respondent, when it refused the Second Appellant water rights on 7th December 1987, was exercising an administrative function and having done so, becamefunctus officio.As such itwould not be competent for it to set aside, reconsideror amend its own decision.

In any event the First Respondent, when it refused the Second Appellant water rights on 7th December 1987, was exercising an administrative function and having done so, became

functus officio.

As such it

would not be competent for it to set aside, reconsider

or amend its own decision.

22.Toe other valid argument against reviving the application for water use rights refused in December 1987, is the time lapse of 29 (twenty nine) years, raised by the First Respondent in paragraph 1.5 of its reply.A decision made some 29 years ago in terms of the now repealed Water Act (Act 54 of 1956) based on the alleged absence of irrigable land on the property, should have been dealt with in accordance with the Appeal procedures provided for therein and cannot be entertained in terms of the current Appeal procedures provided inSection 148of theNational Water Act (Act36 of 1998 of NWA).Counsel for the Appellant, having conceded the validity of this submission, graciously abandoned this ground of Appeal.

Toe other valid argument against reviving the application for water use rights refused in December 1987, is the time lapse of 29 (twenty nine) years, raised by the First Respondent in paragraph 1.5 of its reply.

A decision made some 29 years ago in terms of the now repealed Water Act (Act 54 of 1956) based on the alleged absence of irrigable land on the property, should have been dealt with in accordance with the Appeal procedures provided for therein and cannot be entertained in terms of the current Appeal procedures provided inSection 148of theNational Water Act (Act36 of 1998 of NWA).

Section 148

National Water Act (Act

Counsel for the Appellant, having conceded the validity of this submission, graciously abandoned this ground of Appeal.

(RecordPage70).

23.However,havingdoneso,CounselintroducedinhissubmissioninI/mine,anew ground of appeal formulated as follows: -

However,

having

introduced

submission

I/mine,

new ground of appeal formulated as follows: -

"........that by operation of Section 40(2) of the 1998 Act the appeal in respect of the 1987 decision should be dealt with as being an application for water use under this act".

that by operation of Section 40(2) of the 1998 Act the appeal in respect of the 1987 decision should be dealt with as being an application for water use under this act".

24.To answer this latterly formulated challenge, one must turn to the provisions of Section 40(2) of the 1998National Water Act thatstates the following: -

To answer this latterly formulated challenge, one must turn to the provisions of Section 40(2) of the 1998National Water Act thatstates the following: -

National Water Act that

"40(2) Where a personhasmade an applicationfor an authorizationto usewater under another Act and that applicationhas not been finalizedwhen this Ad takes effect, the application must be regarded as an.application under the Act' (own underlining)

"40(2) Where a person

made an application

for an authorization

to use

water under another Act and that application

has not been finalized

when this Ad takes effect, the application must be regarded as an.application under the Act' (own underlining)

25.In their papers the Appellants attach a letter from the erstwhile Department of Water Affairs, dated 7th December 1987 refusing the water use rights.(Record Page 221 Annexure "B'').They refer to Annexure "B" in the table of contents (Record Page 191) as an "unsubstantiated refusal of application."This formal refusal of the application and the absence of any subsequent Appeal under the repealed Water Act (Act 54 of 1956), can only mean that the application was finalised and therefor the provision of Section 40(2) of the NWA does not apply.

In their papers the Appellants attach a letter from the erstwhile Department of Water Affairs, dated 7th December 1987 refusing the water use rights.

(Record Page 221 Annexure "B'').

They refer to Annexure "B" in the table of contents (Record Page 191) as an "unsubstantiated refusal of application."

This formal refusal of the application and the absence of any subsequent Appeal under the repealed Water Act (Act 54 of 1956), can only mean that the application was finalised and therefor the provision of Section 40(2) of the NWA does not apply.

26.In any event, the introduction of this new and belated ground of Appeal represents a substitution of the abandoned ground of Appeal.Not only does it fall outside the ambit of Rule 3(2) that only allows for amplification, but having now been raised for the first time would require a formal application for condoning the late filing thereof.No such application for condonation was placed before the Tribunal.

In any event, the introduction of this new and belated ground of Appeal represents a substitution of the abandoned ground of Appeal.

Not only does it fall outside the ambit of Rule 3(2) that only allows for amplification, but having now been raised for the first time would require a formal application for condoning the late filing thereof.

No such application for condonation was placed before the Tribunal.

27.In the circumstances and for the reasons advanced, this Appeal is at odds with theNational Water Act aswell as the Rules of the Tribunal and therefore this attempt to rescue the ill-fated 1987 application for water rights, must fail.

In the circumstances and for the reasons advanced, this Appeal is at odds with theNational Water Act aswell as the Rules of the Tribunal and therefore this attempt to rescue the ill-fated 1987 application for water rights, must fail.

National Water Act as

THE WULA DECISION (2016)

28.This Is an Appeal noted by the First Appellant in terms ofSection 148(1)(f)of theNational Water Act(Act36 of 1998) (NWA) against the decision of the Responsible Authority to refuse the Appellant a Water Use licence and is formulated in a manner that seeks to establish whether the refusal of the First Respondent to grant the Appellant a Water Use Licence in terms ofSection 21(a)in respect of the farm Stoffelshoek 81, Hopetown RD, was based on: -

This Is an Appeal noted by the First Appellant in terms ofSection 148(1)(f)of theNational Water Act(Act36 of 1998) (NWA) against the decision of the Responsible Authority to refuse the Appellant a Water Use licence and is formulated in a manner that seeks to establish whether the refusal of the First Respondent to grant the Appellant a Water Use Licence in terms ofSection 21(a)in respect of the farm Stoffelshoek 81, Hopetown RD, was based on: -

Section 148(1)(f)

National Water Act

Section 21(a)

(i)TherecommendationoftheSecondRespondentnamelytheDepartmentof Agriculture Land Reform and Rural Development (ALRRD); or

namely

of Agriculture Land Reform and Rural Development (ALRRD); or

(ii)Any other authority vested with powers or delegated by the Department of Water and Sanitation (DWS).

Any other authority vested with powers or delegated by the Department of Water and Sanitation (DWS).

The expunged decision, taken on 17th March 2017 was confirmed in a letter that reads as follows: -

''Kindlybeinformed thatyourapplicationisunsuccessfulbecause the catchment in respect of which the application Is made is fully allocated such that there Is no additional water to accommodate theproposed water use.0

''Kindly

informed that

unsuccessful

because the catchment in respect of which the application Is made is fully allocated such that there Is no additional water to accommodate the

proposed water use.

(AppealrecordPage114)

29.The grounds for Appeal relate to the failure of the First Respondent to grant the First Appellant the Water use Licence applied for in terms ofSection 41(1)of the NWA and in doing so the First Appellant contends that: -

The grounds for Appeal relate to the failure of the First Respondent to grant the First Appellant the Water use Licence applied for in terms ofSection 41(1)of the NWA and in doing so the First Appellant contends that: -

Section 41(1)

(i)"The First Respondent performed their administrative functions improperly in not considering the recommendation by the Second Respondent Department of Agriculture, Land Reform and Rural Development (DALRRD) as to the water held or availability thereof.

"The First Respondent performed their administrative functions improperly in not considering the recommendation by the Second Respondent Department of Agriculture, Land Reform and Rural Development (DALRRD) as to the water held or availability thereof.

(ii)The Second Respondent (DALRRD) submitted to the First Respondent (DWS) Information regarding the availability of Water without allowing the Appellant to present a Business Plan for and in support of thegranting of a Water Licence.

The Second Respondent (DALRRD) submitted to the First Respondent (DWS) Information regarding the availability of Water without allowing the Appellant to present a Business Plan for and in support of the

granting of a Water Licence.

(iii)The First Respondent fa/led to determine or properly determine the availability of water held by theSecond Respondent and/or the Third Respondent

The First Respondent fa/led to determine or properly determine the availability of water held by the

Second Respondent and/or the Third Respondent

(iv)"1e First Respondent ignored the fact that the Second Appellant's rights transferredandvestedintheFirstAppellantwereviolatedbasedonpast discriminatory and gender-based practices, thus by implication also violated the rights of the Third, Fourth andfifthAppellants.

"1e First Respondent ignored the fact that the Second Appellant's rights transferred

vested

violated

past discriminatory and gender-based practices, thus by implication also violated the rights of the Third, Fourth and

Appellants.

(Page 10 of the Record).

The Second Appellant never acquired any water use rights under the 1956 Water Act as it is clear that she was refused such rights, hence the appeal. Consequently, there were no rights to transfer and no water rights vested in the First Appellant. Prudently Counsel for the Appellants withdrew that appeal.

RESPONDENT'SREPLYTOTHEGROUNDSOFAPPEAL

RESPONDENT'S

GROUNDS

APPEAL

30.The First Respondent's reply confirms that the Appellant's licence application formed part of the water rights set aside for the development of 4000 ha of irrigation by historically disadvantaged resource poor farmers that was made available within the Orange River system (Gariep and Vanderkloof dams) for the development of irrigation in the Upper Orange Water Management Area.The licence application, lodged in terms of Section 40 of the NWA Act 36 of 1998 was for taking water from the Orange River for the development of double cropping 600 ha of wheat and maize on the farm Stoffelshoek 81.

The First Respondent's reply confirms that the Appellant's licence application formed part of the water rights set aside for the development of 4000 ha of irrigation by historically disadvantaged resource poor farmers that was made available within the Orange River system (Gariep and Vanderkloof dams) for the development of irrigation in the Upper Orange Water Management Area.

The licence application, lodged in terms of Section 40 of the NWA Act 36 of 1998 was for taking water from the Orange River for the development of double cropping 600 ha of wheat and maize on the farm Stoffelshoek 81.

(AppealRecordPage52)

31.To consider the proposed agricultural development the First Respondent required inputs, comments and a recommendation from the Department of Agriculture Land Reform and Rural Development.This requirement was dealt with via an agency within the Department known as the Northern Cape Co­ Ordinating Council for Agricultural

Water (CCAW).Their recommendation with regards to this specific WULA was imperative.

To consider the proposed agricultural development the First Respondent required inputs, comments and a recommendation from the Department of Agriculture Land Reform and Rural Development.

This requirement was dealt with via an agency within the Department known as the Northern Cape Co­ Ordinating Council for Agricultural

Water (CCAW).

Their recommendation with regards to this specific WULA was imperative.

32.The First Respondent contends that although it is trite that pursuant to Section 41(1)(f) of the Constitution Act 105 of 1998 only the First Respondent had the right to issue licences, it is also authorised to act in terms of Section 41(2) and(3) of the NWA to call for and receive inputs and recommendations from other stakeholders as well as interested and affected parties when considering the granting of a WUL.Inthis regard the Department of Agriculture, Land Reformand Rural Development was required to provide the First Respondent with its input relating to the agricultural projects presented to it by way of a recommendation from the CCAW.

The First Respondent contends that although it is trite that pursuant to Section 41(1)(f) of the Constitution Act 105 of 1998 only the First Respondent had the right to issue licences, it is also authorised to act in terms of Section 41(2) and

(3) of the NWA to call for and receive inputs and recommendations from other stakeholders as well as interested and affected parties when considering the granting of a WUL.

this regard the Department of Agriculture, Land Reform

and Rural Development was required to provide the First Respondent with its input relating to the agricultural projects presented to it by way of a recommendation from the CCAW.

33.TheFirstRespondentdeniesthe Appellant's contention that in refusing the WUL it had ignored its Constitutional obligation set out in Section 2 of the NWA that enjoins the First Respondent to address the result of past racial and gender discrimination and to eradicate same.

denies

the Appellant's contention that in refusing the WUL it had ignored its Constitutional obligation set out in Section 2 of the NWA that enjoins the First Respondent to address the result of past racial and gender discrimination and to eradicate same.

34.TheFirstRespondentsubmitsthatitsdecisiontorefusetheWULAwasbased purelyonthefactthattherewasnowaterlefttobeallocatedinthatcatchment atthetimeofthedecision basedontheSecondRespondent'sconfirmation that all the allocated water rights had been dealt with.

submits

refuse

based purely

allocated

catchment at

decision based

Respondent's

confirmation that all the allocated water rights had been dealt with.

35.The Respondent's reply to the Second Appellant's Appeal addressed all the issues raised in support thereof, but having withdrawn the Appeal, the First Respondents rebuttal of the grounds relied on by the Second Appellant, is not further dealt with herein.

The Respondent's reply to the Second Appellant's Appeal addressed all the issues raised in support thereof, but having withdrawn the Appeal, the First Respondents rebuttal of the grounds relied on by the Second Appellant, is not further dealt with herein.

APPELLANT'S REPLICATION AND AMPLIFIED GROUNDS OF APPEAL

36.TheAppellant'sreplication,for a great part thereof, concentrated on the merits of the Second Appellant's 1987 water rights appeal.However, having withdrawn that appeal and in light of the dismissal of the subsequent attempt by the Appellant to introduce a new ground of Appeal, the arguments in support thereof are not further traversed herein.

replication,

for a great part thereof, concentrated on the merits of the Second Appellant's 1987 water rights appeal.

However, having withdrawn that appeal and in light of the dismissal of the subsequent attempt by the Appellant to introduce a new ground of Appeal, the arguments in support thereof are not further traversed herein.

37.InresponsetotheFirstRespondent'sreplytheAppellantamplifieditsgrounds ofAppealintermsofRule3(2)oftheWaterTribunalRulesandisnowframed as follows: -

response

amplified

grounds of

TribunalRules

framed as follows: -

"13In respect of the 2016 decision, the Appellant's rely on the following grounds of Appeal:-

In respect of the 2016 decision, the Appellant's rely on the following grounds of Appeal:

a.mefactthattheFirstRespondentdidnotconsider,ordidnotconsiderproperly,thepreviousdiscriminativepractices andfailedtorectifythesepast discriminatory practices; and/or

consider,

consider

properly,

previous

discriminative

practices and

rectify

past discriminatory practices; and/or

b.Thefactt:hatt:heFirstRespondentmadeafindingwithoutt:herecommendation of the Second Respondent, alternatively that the First Respondent did not give sufficient weight to the recommendation of theSecond Respondent; and/or

finding

without

recommendation of the Second Respondent, alternatively that the First Respondent did not give sufficient weight to the recommendation of the

Second Respondent; and/or

c.TheSecondRespondent's recommendation, alternativelytheThird Respondents recommendation, alternatively both the Second and Third Respondents (either separately or in their representative capacities in CCAW) recommendation failed to consider or properly consider the previous discriminative practices and failed to rectify these past discriminatory practices by, inter alia, failing to have regard to the Appellant's business plan; and/or

Respondent's recommendation, alternatively

Third Respondents recommendation, alternatively both the Second and Third Respondents (either separately or in their representative capacities in CCAW) recommendation failed to consider or properly consider the previous discriminative practices and failed to rectify these past discriminatory practices by, inter alia, failing to have regard to the Appellant's business plan; and/or

d That the First Respondent had no regard alternatively did not have sufficient regard to the existing composition of holders of Water Licences and failed to redress previous discrimination practices in its consideration of the Appellants application.

(Page125and126oftheRecord)

Record)

38.These additional grounds of Appeal do not appear to be in the nature of amplified grounds allowed in terms ofRule 3(2)of the Rules of the Tribunal and inasmuch as some or all fall within this category, their admission will be dealt with hereinafter.

These additional grounds of Appeal do not appear to be in the nature of amplified grounds allowed in terms ofRule 3(2)of the Rules of the Tribunal and inasmuch as some or all fall within this category, their admission will be dealt with hereinafter.

(RecordPages125-126)

39.The document raises various issues on the merits of the 2016 decision, repeating unnecessarily the chronological sequence of events that is apparent from the Appeal record and introduces argument that with respect has no place in a document that professes to define the Appellant's case.These matters are best dealt with in evidence and argument and to the extent that they may be correct or relevant, will be dealt with later in this decision.

The document raises various issues on the merits of the 2016 decision, repeating unnecessarily the chronological sequence of events that is apparent from the Appeal record and introduces argument that with respect has no place in a document that professes to define the Appellant's case.

These matters are best dealt with in evidence and argument and to the extent that they may be correct or relevant, will be dealt with later in this decision.

THE FACTUAL BACKGROUND

40.The background to the Water Use Licence and subsequent events are for all intents and purposes common cause. The facts appear from the Appeal Record, the information contained in the Subpoena Bundle provided by the First Respondent and the oral evidence of the witnesses.

The background to the Water Use Licence and subsequent events are for all intents and purposes common cause. The facts appear from the Appeal Record, the information contained in the Subpoena Bundle provided by the First Respondent and the oral evidence of the witnesses.

41.In response to a subpoena issued by the Tribunal at the request of the Appellant, the First Respondent provided documentation in which the background to and the manner in which surplus water made available in the Orange River System (Gariep and Vanderkloof dams), earmarked for use by resource poor farmers for the development of 12000 ha of irrigation, was dealt with.It confirmed that 4000 ha of irrigation was allocated for use In the Upper Orange Water Management Area (WMA), 4000 ha in the Fish to Tshikamma WMA and 4000 ha in the Lower Orange WMA.

In response to a subpoena issued by the Tribunal at the request of the Appellant, the First Respondent provided documentation in which the background to and the manner in which surplus water made available in the Orange River System (Gariep and Vanderkloof dams), earmarked for use by resource poor farmers for the development of 12000 ha of irrigation, was dealt with.

It confirmed that 4000 ha of irrigation was allocated for use In the Upper Orange Water Management Area (WMA), 4000 ha in the Fish to Tshikamma WMA and 4000 ha in the Lower Orange WMA.

42.While the Free State Provincial operation is responsible for Water Resource Management within the previously demarcated Upper Orange Water Management Area that lies predominately within the Free State, it also occupies portions of the Northern Cape Province in which the farm Stoffelshoek 81 is situated and from where this licence application originated.The Northern Cape Provincial operation is responsible for water resource management within the previously demarcated Lower Orange Management Area that lies predominantly in the Northern Cape.

While the Free State Provincial operation is responsible for Water Resource Management within the previously demarcated Upper Orange Water Management Area that lies predominately within the Free State, it also occupies portions of the Northern Cape Province in which the farm Stoffelshoek 81 is situated and from where this licence application originated.

The Northern Cape Provincial operation is responsible for water resource management within the previously demarcated Lower Orange Management Area that lies predominantly in the Northern Cape.

43.AII the water in the Lower Orange Water Management Area was set aside for use in a provincial agricultural initiative referred to as the Orange River Emerging Farmers Settlement and Development Project (OREFSDP) created for the purpose of giving effect to the development of irrigation opportunities by resource poor farmers set aside in the NWRS 2.It was managed and Implemented by the Second Respondent through the establishment of a departmental forum referred to as the Co-Ordinating Committee on Agricultural Water (CCAW).Any application received from the Northern Cape Province as part of the OREFSDP initiative, was required to be considered by this committee and recommended to the First Respondent, prior to the issuance of a Water Use Licence to approved applicants.

AII the water in the Lower Orange Water Management Area was set aside for use in a provincial agricultural initiative referred to as the Orange River Emerging Farmers Settlement and Development Project (OREFSDP) created for the purpose of giving effect to the development of irrigation opportunities by resource poor farmers set aside in the NWRS 2.

It was managed and Implemented by the Second Respondent through the establishment of a departmental forum referred to as the Co-Ordinating Committee on Agricultural Water (CCAW).

Any application received from the Northern Cape Province as part of the OREFSDP initiative, was required to be considered by this committee and recommended to the First Respondent, prior to the issuance of a Water Use Licence to approved applicants.

44.Annexure "A" attached to the report of the First Respondent in answer to the subpoena issued by the Tribunal, tabulates Water Licences issued and the developmentstatus of the applications processed and approved as part of theOREFSDP initiative.It is important to note that this report referred to as the "OREFSDP report on Water Licences issued and Development Status: 28 May 2014", reflects the position in respect of Licences issued by the DWS on a date 20 days before the Appellant's WULA was lodged.At that stage 3278 ha of the available 4000 ha had already been licensed.A final report as part of Annexure "A" concludes that as at 22ndApril 2016, 3337 ha of the available 4000 ha allocation had been licensed.The remaining 663 ha was set aside for use in a project referred to as the Namaqua Irrigation Development Plan.

Annexure "A" attached to the report of the First Respondent in answer to the subpoena issued by the Tribunal, tabulates Water Licences issued and the development

status of the applications processed and approved as part of the

OREFSDP initiative.

It is important to note that this report referred to as the "OREFSDP report on Water Licences issued and Development Status: 28 May 2014", reflects the position in respect of Licences issued by the DWS on a date 20 days before the Appellant's WULA was lodged.

At that stage 3278 ha of the available 4000 ha had already been licensed.

A final report as part of Annexure "A" concludes that as at 22

April 2016, 3337 ha of the available 4000 ha allocation had been licensed.

The remaining 663 ha was set aside for use in a project referred to as the Namaqua Irrigation Development Plan.

45.On 17th June 2014, the First Appellant lodged an application for a WULA in terms ofSection 21(a)of the NWA to the Northern Cape Regional Operation of the DWS to double crop 600 ha of maize and wheat under irrigaticm on its property known as Stoffelshoek 81, in the district of Hopetown.The application for taking water from the Orange River was transferred to the Free State Regional Operation as the relevant authority responsible for the processing of licence applications in terms of properties geographically situated in the Upper Orange Water Management Area.Only two licence applications, that of the Appellant Shalom Trust and Dixoway (Pty) Limited were received from the Northern Cc:tpe

Provincial operation, both in respect of the same source (Orange River) and the same property namely Stoffelshoek 81.Itis common cause that the Appellant's application formed part of the OREFSDP initiative and as such was required to be referred to and recommended by the CCAW.

On 17th June 2014, the First Appellant lodged an application for a WULA in terms ofSection 21(a)of the NWA to the Northern Cape Regional Operation of the DWS to double crop 600 ha of maize and wheat under irrigaticm on its property known as Stoffelshoek 81, in the district of Hopetown.

The application for taking water from the Orange River was transferred to the Free State Regional Operation as the relevant authority responsible for the processing of licence applications in terms of properties geographically situated in the Upper Orange Water Management Area.

Only two licence applications, that of the Appellant Shalom Trust and Dixoway (Pty) Limited were received from the Northern Cc:tpe

Provincial operation, both in respect of the same source (Orange River) and the same property namely Stoffelshoek 81.

is common cause that the Appellant's application formed part of the OREFSDP initiative and as such was required to be referred to and recommended by the CCAW.

46.On the 3rdJune 2015 the Appellant extended an invitation to the Second Respondent to meet with the Appellants on the farm Stoffelshoek 81

with the view to establish their suitability and to enable compliance with the requirements of the project, thereby ensuring the issuance of a recommendation as a prerequisite to the approval of a Water Use Licence.Unfortunately, the Second Respondent did not respond to the invitation.

On the 3

June 2015 the Appellant extended an invitation to the Second Respondent to meet with the Appellants on the farm Stoffelshoek 81

with the view to establish their suitability and to enable compliance with the requirements of the project, thereby ensuring the issuance of a recommendation as a prerequisite to the approval of a Water Use Licence.

Unfortunately, the Second Respondent did not respond to the invitation.

(RecordPages154-157)

47.On the 14thof August 2015 the First Respondent formally notified the Appellant that ithad assessedtheWaterUseLicenceApplicationand that inordertoproceed with processing the application, it required the recommendation from the Northern Cape CCAW to be submitted before the 14th of September 2015, failing which a decision will be made based on the information that was then available.

On the 14

of August 2015 the First Respondent formally notified the Appellant that it

had assessed

Licence

Application

and that in

proceed with processing the application, it required the recommendation from the Northern Cape CCAW to be submitted before the 14th of September 2015, failing which a decision will be made based on the information that was then available.

48.On9thSeptember2015theAppellantreceivedaletterfromtheSecond Respondentstatingthattheirapplicationwaspresentedtoameetingofthe technical committee of the OREFSDP at which it resolved that the Appellant be giventimeto preparea business plan forpresentationat the next committee meeting where after the Appellant's application could be referred to the CCAW. (Record Page 166)

September

letter

stating

meeting

the technical committee of the OREFSDP at which it resolved that the Appellant be given

to prepare

a business plan for

presentation

at the next committee meeting where after the Appellant's application could be referred to the CCAW. (Record Page 166)

49.An attempt by the Appellant on·11thSeptember 2015 to arrange a meeting with the CCAW, on a mutually convenient date, failed.The Appellants subsequently confirmed that ithad completed the required business plan for presentation to the OREFSDP at its next meeting.Advice received from the Second Respondent Indicated that such a meeting would take place during the first quarter of 2016. (Record Pages 170 -171)

An attempt by the Appellant on·11

September 2015 to arrange a meeting with the CCAW, on a mutually convenient date, failed.

The Appellants subsequently confirmed that it

had completed the required business plan for presentation to the OREFSDP at its next meeting.

Advice received from the Second Respondent Indicated that such a meeting would take place during the first quarter of 2016. (Record Pages 170 -

50.This meeting however did not materialise and importantly, a letter from the Departmental Head in the Department in the Department of Agriculture Land Reform and Rural Development (Second Respondent) dated 11thJanuary 2016 addressed to the Appellant recorded the following: -

This meeting however did not materialise and importantly, a letter from the Departmental Head in the Department in the Department of Agriculture Land Reform and Rural Development (Second Respondent) dated 11

January 2016 addressed to the Appellant recorded the following: -

(i)Itreferred to an announcement made by the Minister of Water Affairs, the late Professor Kader Asma/ on or about 2000 that emanating from the Orange River re­ planning study, the Orange River system still had reserve available for the development of 12000 ha of new irrigation.

referred to an announcement made by the Minister of Water Affairs, the late Professor Kader Asma/ on or about 2000 that emanating from the Orange River re­ planning study, the Orange River system still had reserve available for the development of 12000 ha of new irrigation.

(ii)The principles and criteria applicable to the development that included the water rights, were to be used inter alia for promoting and reinforcing economic development amongst historically disadvantaged farmers and communities and should also address the principles of land reform.

The principles and criteria applicable to the development that included the water rights, were to be used inter alia for promoting and reinforcing economic development amongst historically disadvantaged farmers and communities and should also address the principles of land reform.

(iii)That the applications received far exceeded the 4000 ha allocation, 3300 ha of which had already been allocated to equity schemes and the remaining+-700 ha ofwater rights were to be used for new irrigation Inthe NamaquaDevelopment

That the applications received far exceeded the 4000 ha allocation, 3300 ha of which had already been allocated to equity schemes and the remaining

+-700 ha of

water rights were to be used for new irrigation In

the Namaqua

Development

Plan for which an additional 1200 ha of water rights would stiII be needed.This Plan had been endorsed by the MEC for Agriculture, Land Reform and Rural Development and some of the identified projects had been announced.The letter clearly concludes the following:-

Plan for which an additional 1200 ha of water rights would stiII be needed.

This Plan had been endorsed by the MEC for Agriculture, Land Reform and Rural Development and some of the identified projects had been announced.

The letter clearly concludes the following:

"in effect this means that the 4000 ha allocation is exhausted.

(iv)Noting that the current available allocation had been exhausted any additional application for water rights can only be recommended should the DWS extend the 4000 ha and make more water available from various programmes.

Noting that the current available allocation had been exhausted any additional application for water rights can only be recommended should the DWS extend the 4000 ha and make more water available from various programmes.

(v)Itsuggests that the Appellant provides the Second Respondent with its business plan and relevant documents to enable the assessment of its feasibility and to liaise with DWS to determine whether there exists a possibility that additional water could be made available from which the projects that could not be accommodated from the 4000 ha allocation,can in future still beconsidered.

suggests that the Appellant provides the Second Respondent with its business plan and relevant documents to enable the assessment of its feasibility and to liaise with DWS to determine whether there exists a possibility that additional water could be made available from which the projects that could not be accommodated from the 4000 ha allocation,

can in future still be

considered.

(RecordPage179-180)

51.In response to the confirmation that the allocation had been exhausted the Appellant's legal representation in a letter to the Second Respondent dated 27thJanuary2016 noted the following: -

In response to the confirmation that the allocation had been exhausted the Appellant's legal representation in a letter to the Second Respondent dated 27

2016 noted the following: -

"We recognise that our application for water rights of 950 ha will result in the Department exceeding the 3300 hathat they have made available for allocation''and "Should the Department be unable or unwilling to increase the maximum a/location beyond 3300 ha, we believe that we are still able to achieve some of our goals, though on a much smaller scale and with less impact, if we areawarded the balance of the water rights that remain unallocated'(My underlining)

"We recognise that our application for water rights of 950 ha will result in the Department exceeding the 3300 ha

that they have made available for allocation''

and "Should the Department be unable or unwilling to increase the maximum a/location beyond 3300 ha, we believe that we are still able to achieve some of our goals, though on a much smaller scale and with less impact, if we are

awarded the balance of the water rights that remain unallocated'

(My underlining)

In closing the Appellant requests that: -

"Yourofficeconsidersmakingsucharecommendationatyournextmeeting"The letter also confirmed that the business plan would be lodged shortly. (Record Page 184 -186)

office

considers

making

meeting"

The letter also confirmed that the business plan would be lodged shortly. (Record Page 184 -

52.At this juncture it must be noted that the Appellant's reply is factually incorrect.Its licenceapplicationwas for irrigation of600 haand not 950ha as stated.

At this juncture it must be noted that the Appellant's reply is factually incorrect.

Its licence

was for irrigation of

600 ha

and not 950

ha as stated.

What is clear is that 4000 ha of irrigation rights were allocated for use in theLower Orange Water Management Area. This allocation was exhausted as atthat stage approximately 3300 ha was committed to various equity schemes and the balance was set aside for the Namaqua project and thus the Appellant could not be''awarded the balance of the water rights that remained unallocated".

Lower Orange Water Management Area. This allocation was exhausted as at

''awarded the balance of the water rights that remained unallocated".

53.Following the advice of the Second Respondent, the Appellant lodged its business plan at the offices of the Second Respondent in Kimberley on 10thMarch 2016 blissfully unaware that during the intervening period, the First Respondenthad on the 8thof February2016 formallyrequested the NorthernCape CCAW to submit the required recommendation no later than the 15thof'February2016.MrCarloSchraderanofficialoftheFirstRespondenthad, followed up on the delay and during a visit to Kimberley met with the chairperson of the CCAW on the 11th February 2016 where he was handed a copy of the communication sent to the Appellant confirming that the water rights dealt with in terms of the OREFSDP, an initiative in which the Appellant participated, had been exhausted.

Following the advice of the Second Respondent, the Appellant lodged its business plan at the offices of the Second Respondent in Kimberley on 10

March 2016 blissfully unaware that during the intervening period, the First Respondent

had on the 8

of February

2016 formally

requested the Northern

Cape CCAW to submit the required recommendation no later than the 15

February

Schrader

official

had, followed up on the delay and during a visit to Kimberley met with the chairperson of the CCAW on the 11th February 2016 where he was handed a copy of the communication sent to the Appellant confirming that the water rights dealt with in terms of the OREFSDP, an initiative in which the Appellant participated, had been exhausted.

(RecordPage 54)

Page 54)

54.On the 17thof March 2016, the First Respondent addressed a letter to the Appellant confirming that the application had been processed and

noted the following: -

On the 17

of March 2016, the First Respondent addressed a letter to the Appellant confirming that the application had been processed and

noted the following: -

''Kindlybe informedthatyourapplicationis unsuccessfulbecausethecatchmentin respect of which the application is made, if fully allocated suchthatthere is no additional water to accommodate the proposed water use'

be informed

is unsuccessful

catchment

in respect of which the application is made, if fully allocated such

there is no additional water to accommodate the proposed water use'

(RecordPage165)

55.Notwithstanding the date of the decision, the contents of the letter only came to the attention of the Appellant on 14thJune 2016 and in light of the decision to refuse the licence application an Appeal was noted during July 2016.

Notwithstanding the date of the decision, the contents of the letter only came to the attention of the Appellant on 14

June 2016 and in light of the decision to refuse the licence application an Appeal was noted during July 2016.

SUBSEQUENTEVENTS

SUBSEQUENT

EVENTS

56.Followingthe refusaloftheAppellants'licenceapplicationandafterthenoting of the Appeal, the First Respondenton its own volition,applied foran allocation ofwatertotallyunrelated and inadditiontothat whic:hwas allocatedforuse in the Northern Cape.The circumstances surrounding this application was fully set outinamotivationaddressedtotheDeputyDirectorGeneral:WaterSector Regulation. Itwasmadepossibleasaresultoftheinstitutionalchangesthat combined the Upper and Lower Orange River Water Management Areas. (Transcript Pages 55 to 56)

Following

the refusal

licence

noting of the Appeal, the First Respondent

on its own volition,

applied for

an allocation of

totally

unrelated and in

addition

that whic:h

was allocated

use in the Northern Cape.

The circumstances surrounding this application was fully set out

motivation

addressed

Deputy

Director

General:

Sector Regulation. It

possible

result

institutional

changes

that combined the Upper and Lower Orange River Water Management Areas. (Transcript Pages 55 to 56)

(SubpoenaBundle Annexure "D'')

(Subpoena

Bundle Annexure "D'')

57.In order for the Orange Proto Catchment Management ·Agency to satisfy the needs that exist in the Northern Cape Province, the application recommended that the Deputy Director General: -

In order for the Orange Proto Catchment Management ·Agency to satisfy the needs that exist in the Northern Cape Province, the application recommended that the Deputy Director General: -

''Approve the application of 11 million m3 (1000 ha) of water to previously historically disadvantaged individuals in addition to the 4000 ha of water use entitlements earmarked in the Orange River for development in the Northern Cape.''

This recommendation was approved by the relevant official on 23rdDecember 2016.

(SubpoenaBundleAnnexure"D'')

Bundle

Annexure

58.On 27thJanuary2017 the Appellant's legal representative addressed a letter to the First Respondent in which they confirm having been informed of this latest development.It records their understanding that historically disadvantaged individuals will also qualify for this water and that the Appellants

fall within this category.The letter confirms that: -

2017 the Appellant's legal representative addressed a letter to the First Respondent in which they confirm having been informed of this latest development.

It records their understanding that historically disadvantaged individuals will also qualify for this water and that the Appellants

fall within this category.

The letter confirms that: -

"We have further been advised that all applicants who were previously considered through the proper process and refused purely on the basis that no water was available, willalso now bereconsidered."

"We have further been advised that all applicants who were previously considered through the proper process and refused purely on the basis that no water was available, will

also now be

reconsidered.

The letter continues by reminding the Second Respondent of the pending Water Tribunal Appeal and then notes the following: -

"Thewriterrequeststhatyoukindlyreconsidertheaboveapp/iaJtionwithallthe otherapplicantswhowempreviouslyrefusedonthesamebasis,namelythatno water is available.We will continue with the appealhowever we believe that unnecessary costs are being incuffed in the further prosecution of this appeal in fight of the thousand (1 000) hectares of water that have been made available and the fact that the remainder of the water that was previously made available from the four thousand hectares (4 000) previously allocated is also still available.

writer

requests

kindly

app/iaJtion

the other

applicants

previously

basis,

no water is available.

We will continue with the appeal

however we believe that unnecessary costs are being incuffed in the further prosecution of this appeal in fight of the thousand (1 000) hectares of water that have been made available and the fact that the remainder of the water that was previously made available from the four thousand hectares (4 000) previously allocated is also still available.

We wouldlikeyoutoreconsiderthisapplication and thank you inanticipation.Kindly advise as a matterof urgencywhether theodqinal applicationwillbereconsidered"or whether anew appl/catlonwith all annexures will need to be submitted for such consideration."(My underlining),

We would

application and thank you in

anticipation.

Kindly advise as a matter

of urgency

whether the

odqinal application

reconsidered"

or whether a

new appl/catlon

with all annexures will need to be submitted for such consideration.

"(My underlining)

(RecordPages240-241)

59.The record shows that in response to this communication, the First Respondent confirmed in writing on the 1stFebruary 2017 that the application will be reconsidered with all other applications previously declined based on water availability

and stated disingenuously that there is no need for the Appellants to submit a new application.

The record shows that in response to this communication, the First Respondent confirmed in writing on the 1

February 2017 that the application will be reconsidered with all other applications previously declined based on water availability

and stated disingenuously that there is no need for the Appellants to submit a new application.

60.ThemannerinwhichtheAppellant's letter totheFirstRespondentwas couched, read with the First Respondent's reply indicating that a fresh application was not required, created the impression that the refused application would be "reconsidered" and led to the Appellant's understanding that the additional 1000 ha of irrigation water that now became available would be dealt with in conjunction with the remainder of the water that according to the Appellant, was still available. The reconsideration of the WULA was apparently seen by the Appellant as part of the project in respect of which their application was refused based on the unavailability of water.

manner

Appellant's letter to

was couched, read with the First Respondent's reply indicating that a fresh application was not required, created the impression that the refused application would be "reconsidered" and led to the Appellant's understanding that the additional 1000 ha of irrigation water that now became available would be dealt with in conjunction with the remainder of the water that according to the Appellant, was still available. The reconsideration of the WULA was apparently seen by the Appellant as part of the project in respect of which their application was refused based on the unavailability of water.

61.The application by the First Respondent for an additional allocation of irrigation right, clearly did not form part of the water available in the OREFSDP initiative in respect of which the Appellant's WULA was made and notwithstanding the First Respondent's advice, could and was not capable of being reconsidered.

The application by the First Respondent for an additional allocation of irrigation right, clearly did not form part of the water available in the OREFSDP initiative in respect of which the Appellant's WULA was made and notwithstanding the First Respondent's advice, could and was not capable of being reconsidered.

It is settled law that the Responsible Authority having made an administrative decision, was thereafterfunctus officioand therefore could not reconsider its own decision.

functus officio

(Transcript Volume I page 60) (Transcript page 55 lines 6 - 17)

THE LEGISLATIVE AND POLICY FRAMEWORK

62.Section 2oftheNational WaterAct(Act36 of 1998) defines the purpose of the Act as follows: -

Section 2of

Section 2

theNational Water

National Water

Act(Act36 of 1998) defines the purpose of the Act as follows: -

Purpose of the Act

"2. The purpose. of this Adis to ensure that the nation’s water resources are protected, used, developed, conserved, managed and controlled in a way which takesinto account amongst other factors:-

"2. The purpose. of this Ad

is to ensure that the nation’s water resources are protected, used, developed, conserved, managed and controlled in a way which takes

into account amongst other factors:

(a)meetingthebasichumanneeds ofpresent and futuregenerations;

needs of

present and future

generations;

(b)promotingequitableaccesstowater;

promoting

equitable

access

water;

(c)redressingtheresultsofpastracialandgenderdiscrimination;

redressing

results

racial

gender

discrimination;

(d)promotingthe efficient,sustainableand beneficialuse of waterin the public interest;

the efficient,

sustainable

and beneficial

use of water

in the public interest;

(e)facilitatingsocialandeconomicdevelopment;

facilitating

social

economic

development;

(f)providingforgrowingdemandforwateruse;

providing

growing

demand

(g)protectingaquaticandassociatedecosystemsandtheirbiological diversity;

protecting

aquatic

associated

ecosystems

biological diversity;

(h)reducingandpreventingpollutionanddegradationofwaterresources;

reducing

preventing

pollution

degradation

resources;

(I)meeting international obligations;

meeting international obligations;

(j)promotingdamsafety;

safety;

(k)Managingfloodsand droughtsand for achieving this purpose, to establish suitable institutions and to ensure that they have appropriate community, rural andgender representations'

Managing

floods

and droughts

and for achieving this purpose, to establish suitable institutions and to ensure that they have appropriate community, rural and

gender representations'

63.Section 3 of the Act places the trusteeshipof the nation's water resources inthe hands of the Minister and decrees that:

Section 3 of the Act places the trusteeship

of the nation's water resources in

the hands of the Minister and decrees that:

3. (1) As the public trustee of the nation's water resources the National Government, acting through the Minister, must ensure that

water is protected, used, developed, conserved, managed and controlled in a sustainable and equitable manner, for the benefit of

all persons and in accordance with its constitutional mandate.

(2)Without limited subsection (1), the Minister is ultimately responsible to ensure that water is allocated equltably and used benefidal/y in the public interest, whilepromoting environmental values.

Without limited subsection (1), the Minister is ultimately responsible to ensure that water is allocated equltably and used benefidal/y in the public interest, while

promoting environmental values.

(3)TheNationalGovernment,acting throughthe Minister, has the power to regulate theuse, nowandcontrol of all water in theRepublic.

Government,

acting through

the Minister, has the power to regulate the

use, now

control of all water in the

Republic.

64.To ensure the proper and thorough consideration of a Water Use Licence Application the Act provides the following: -

To ensure the proper and thorough consideration of a Water Use Licence Application the Act provides the following: -

27.(1)In issuing a general authorisation or licence the responsible authority must take into account allrelevantfactors, including-

In issuing a general authorisation or licence the responsible authority must take into account all

relevant

factors, including

(a)existinglawfulwateruse;

existing

lawful

(b)theneedtoredresstheresults ofpast racial andgender discrimination;

redress

results of

past racial and

gender discrimination;

(c)effidentandbeneficialuseofwaterinthepublicinterest;

effident

beneficial

public

interest;

(d)thesocio-economic impact-

socio-economic impact-

(0of the water useor uses if authorised; or

of the water use

or uses if authorised; or

(Ii)ofthefailure toauthorise the water useor uses.

failure to

authorise the water use

or uses.

(e)any catchmentmanagementstrategyapplicabletothe relevantwater resource;

any catchment

management

applicable

the relevant

water resource;

(f)thelikelyeffectofthewaterusetobeauthorisedonthewaterresource and on other water users;

likely

effect

authorised

resource and on other water users;

(g)theclassandtheresourcequality objectivesofthewaterresource;

resource

quality objectives

resource;

(h)investments already made to be made by the water users in respect of the water use in question;

investments already made to be made by the water users in respect of the water use in question;

(i)thestrategicimportanceofthewaterusetobeauthorised;

strategic

importance

authorised;

(o)the quality of water in the water resource which may be required for the Rese,veand for meeting international obligations; and

the quality of water in the water resource which may be required for the Rese,ve

and for meeting international obligations; and

(k)the probably duration of any undertaking on which a water use is to be

the probably duration of any undertaking on which a water use is to be

authorised.

(2) A responsible authority may not issue a licence to itself without the written approval of the Minister.

65.Section 41(1) to (4) describes the procedure to be adhered to in the licencing process and Section 41(2) provides as follows: -

Section 41(1) to (4) describes the procedure to be adhered to in the licencing process and Section 41(2) provides as follows: -

(2)Aresponsibleauthority-

authority-

(a)may to the extent that is reasonable to do so, require the applicant, at the applican s expense, to obtain and provide itby a given date with-

may to the extent that is reasonable to do so, require the applicant, at the applican s expense, to obtain and provide it

by a given date with

(i)otherinformation,inadditiontotheinformationcontainedinthe application;

information,

information

contained

the application;

(ii)an assessment by a competent person of the likely effect of the proposed licence on the resource quality; and

an assessment by a competent person of the likely effect of the proposed licence on the resource quality; and

(iii)anindependentreviewoftheassessmentfumishedintermsof subparagraph (ii), by aperson acceptable to the responsible authority;

independent

assessment

fumished

of subparagraph (ii), by a

person acceptable to the responsible authority;

(b)may conduct its own investigation on the likely effect of the proposed licence on the protection, use, development, consetvation, management and control of the water resource;

may conduct its own investigation on the likely effect of the proposed licence on the protection, use, development, consetvation, management and control of the water resource;

(c)may invite written comments from any organ of state which or person who has an interest in the matter; and

may invite written comments from any organ of state which or person who has an interest in the matter; and

(d) must afford the applicant an opportunity to make representations on any aspect of the licence application.

66.The introductory passage of chapter 2 of the NWA provides for the development of Water Management Strategies to facilitate the proper management of water resources input and entrusts the Minister as follows: -

The introductory passage of chapter 2 of the NWA provides for the development of Water Management Strategies to facilitate the proper management of water resources input and entrusts the Minister as follows: -

"Part Irequires the progressive development by the Minister, after consultation with society at large of a national water resource strategy.The national water resource strategy provides the framework for the protection, use, development, conservation, management and control of water resources for the country as a whole.Italso provides the framework within which water will be managed at regional or catchment level, in defined water management areas.The national water resource strategy, which must be formally reviewed from time to timebinding on all authorities and institutions exercising powers or performinq dutiesunder this Act"(My underlining)(Preamble to Part 1 of Chapter2).

"Part I

requires the progressive development by the Minister, after consultation with society at large of a national water resource strategy.

The national water resource strategy provides the framework for the protection, use, development, conservation, management and control of water resources for the country as a whole.

also provides the framework within which water will be managed at regional or catchment level, in defined water management areas.

The national water resource strategy, which must be formally reviewed from time to time

binding on all authorities and institutions exercising powers or performinq duties

under this Act"

(Preamble to Part 1 of Chapter

67.Currently the National Water Resource Strategy (NWRS 2) identifies all Water Management Areas country-wide and its perspective of the Orange Water ManagementArea,comprising inter alia of the Upper and Lower Orange Water Management Area mentions the following: -

Currently the National Water Resource Strategy (NWRS 2) identifies all Water Management Areas country-wide and its perspective of the Orange Water Management

comprising inter alia of the Upper and Lower Orange Water Management Area mentions the following: -

"The Orange River is the country’s major artery and a resource that must be managed with great care.The available yield for this system has been fully allocated and there is no prospect of additional water for allocation without storage volumes being increased.This willcome at significant costs."

"The Orange River is the country’s major artery and a resource that must be managed with great care.

The available yield for this system has been fully allocated and there is no prospect of additional water for allocation without storage volumes being increased.

This will

come at significant costs.

(NWRS2Annexure Apage2paragraph2)

Annexure A

paragraph

68.Dealing with the water balance in the Orange River and its dams, NWRS 2 identifies several uses of the water that includes inter alia –

Dealing with the water balance in the Orange River and its dams, NWRS 2 identifies several uses of the water that includes inter alia –

"Water for irrigation of 12000 ofland by resource poor farmers.This was set aside in 1998, although very little of this water has been taken up.The current water balance calculation takes account of the future water needs and provides inter alia for: -''the water needed to irrigate the 12000 ha for resource poor farmers-if and when this is taken up"

"Water for irrigation of 12000 of

land by resource poor farmers.

This was set aside in 1998, although very little of this water has been taken up.

The current water balance calculation takes account of the future water needs and provides inter alia for: -

''the water needed to irrigate the 12000 ha for resource poor farmers

if and when this is taken up"

(NWRS2AnnexureAParagraph2OrangeWaterManagementAreapage 3).

Paragraph

Orange

Management

page 3).

69.Chapter 6 of the NWRS 2 lays down the principles of equitable allocation of the country's water resources to ensure that substantial progress towards equity is made.In support hereof, a Water Allocation Reform (WAR) programme was established as a primary focus, dedicated to adhere to the strategic objective of redressing inequity (race and gender), imbalances in the allocation of water and to eradicate poverty.

Chapter 6 of the NWRS 2 lays down the principles of equitable allocation of the country's water resources to ensure that substantial progress towards equity is made.

In support hereof, a Water Allocation Reform (WAR) programme was established as a primary focus, dedicated to adhere to the strategic objective of redressing inequity (race and gender), imbalances in the allocation of water and to eradicate poverty.

70.Implementationof theWARprogrammemay entailandbeaccomplishedby thefollowingprogrammes:- watersetaside,generalauthorisation,partnerships,developmentsupport, water-based business enterprises and compulsory licensing.

Implementation

of the

programme

may entail

accomplished

by the

programmes:

- water

general

authorisation,

partnerships,

development

support, water-based business enterprises and compulsory licensing.

(NWRS2Chapter6 Page 45paragraph 6.1.4) (Subpoena Bundle Annexure "B'')

Chapter

6 Page 45paragraph 6.1.4) (Subpoena Bundle Annexure "B'')

6 Page 45

71.The core principles of the National Water Policy being equity, sustainability and efficiency underpin the protection, use, development, conservation, management and control of water resources and water allocation will be done in terms of these priorities.

The core principles of the National Water Policy being equity, sustainability and efficiency underpin the protection, use, development, conservation, management and control of water resources and water allocation will be done in terms of these priorities.

These principles collectively inform the intended means to achieve water allocation reform and its envisaged objective, the first of which relate to redressing race and gender imbalances as a primary focus that also includes the reduction of poverty and iniquity in the country.

(NWRS2Chapter6page48paragraphs6.2and6.3)

paragraphs

72.NWRS 2 provides for the critical strategic actions that would enable the acceleration of the water sector reform agenda designed to create and ensure sector stability in support of poverty eradication, reduction in iniquity, social economic development and sustainable water resource use set out as follows: -

NWRS 2 provides for the critical strategic actions that would enable the acceleration of the water sector reform agenda designed to create and ensure sector stability in support of poverty eradication, reduction in iniquity, social economic development and sustainable water resource use set out as follows: -

•Alignment with key government initiatives such as Land Reform and the Comprehensive Rural Development Programme.

Alignment with key government initiatives such as Land Reform and the Comprehensive Rural Development Programme.

•Establishingpartnerships withkeyrole-playersandensuring theeffective involvement of relevant stakeholders (for example, sector charters such as the Mining andForestry Charters) in the implementation of theWAR.

Establishingpartnerships withkeyrole-playersandensuring theeffective involvement of relevant stakeholders (for example, sector charters such as the Mining andForestry Charters) in the implementation of theWAR.

Establishing

partnerships with

role-players

ensuring the

effective involvement of relevant stakeholders (for example, sector charters such as the Mining and

Forestry Charters) in the implementation of the

•Elevating the WAR programme to the executive level within the DWA to giveimpetus to its integrated andcoordinated implementation.

Elevating the WAR programme to the executive level within the DWA to giveimpetus to its integrated andcoordinated implementation.

Elevating the WAR programme to the executive level within the DWA to give

impetus to its integrated and

coordinated implementation.

•Legislative review to provide for the development of regulations for water equity purposes.

Legislative review to provide for the development of regulations for water equity purposes.

(NWRS2Chapter6Page48paragraph6.4)

73.Activities that support these critical strategic actions entail inter alia cooperation with the Departments of Rural Development, Land Reform and Agriculture, Forestry and Fisheries and (provincial departments of agriculture) to achieve a coherent programme of land, water and agrarian reform by-

Activities that support these critical strategic actions entail inter alia cooperation with the Departments of Rural Development, Land Reform and Agriculture, Forestry and Fisheries and (provincial departments of agriculture) to achieve a coherent programme of land, water and agrarian reform by-

•Assimilation or coordination of current structures to fully accommodate Joint project implementation and reporting protocols.

Assimilation or coordination of current structures to fully accommodate Joint project implementation and reporting protocols.

•Signing of Memoranda of Understanding to ensure commitment to the joint implementation mechanisms.

Signing of Memoranda of Understanding to ensure commitment to the joint implementation mechanisms.

To provide for the effective implementation of the Water Reform Strategy implementation plans will involve consultation with relevant

government departments and stakeholder groups, particularly in view of that a key theme of NWRS 2 is that government cannot achieve the stated objectives on its own and that partnerships with other organs of state and key stakeholders will be needed to achieve the objective of the strategy.

(NWRS2Chapter6Page48paragraph6.4.1and6.4.2)

6.4.2)

THEAPPELLANT'SEVIDENCE

APPELLANT'S

EVIDENCE

74.The Appellant's presented oral evidence by the Second Appellant Mrs Susanna Elizabeth Mathewson (Junior) cited in the Notice of Appeal in her capacity as an Income and Capital beneficiary of the Shalom Trust (Appellant).Italso called in evidence Mr Ben Mathewson, the Appellants' attorney of record and it is assumed, a close relative of the Second, Third and Fourth Appellants.

The Appellant's presented oral evidence by the Second Appellant Mrs Susanna Elizabeth Mathewson (Junior) cited in the Notice of Appeal in her capacity as an Income and Capital beneficiary of the Shalom Trust (Appellant).

also called in evidence Mr Ben Mathewson, the Appellants' attorney of record and it is assumed, a close relative of the Second, Third and Fourth Appellants.

75.The evidence of Mrs Mathewson (Junior) in essence provided insight into the history of events on the farm Stoffelshoek, dealt with the historic application for water rights, the difficulties encountered over time, her perception of discriminating practices and her understanding of the current application in terms of the chronological occurrence of events and the particulars of the licence applied for.

The evidence of Mrs Mathewson (Junior) in essence provided insight into the history of events on the farm Stoffelshoek, dealt with the historic application for water rights, the difficulties encountered over time, her perception of discriminating practices and her understanding of the current application in terms of the chronological occurrence of events and the particulars of the licence applied for.

76.She explained the relationship with Genade Boerdery with whom the Appellant had entered into a lease agreement and expanded on the nature and terms thereof.In this regard she referred the Tribunal to the Appellant's business plan wherein this arrangement was explained.Neither her evidence in chief nor that in cross examination displayed any contentious issues and any confusing aspects relating to Genade Boerdery and its relationship with the Appellant was left to the Appellant's second witness Mr Ben Mathewson to explain.

She explained the relationship with Genade Boerdery with whom the Appellant had entered into a lease agreement and expanded on the nature and terms thereof.

In this regard she referred the Tribunal to the Appellant's business plan wherein this arrangement was explained.

Neither her evidence in chief nor that in cross examination displayed any contentious issues and any confusing aspects relating to Genade Boerdery and its relationship with the Appellant was left to the Appellant's second witness Mr Ben Mathewson to explain.

(AppealRecordPage196)

77.His evidence confirmed and defined the nature of the relationship between the Appellant and Genade Boerdery. It is common cause that a plough certificate to irrigate 1166 ha on the farm Stoffelshoek 81 was issued in favour of Genade Boerdery and that in terms of their joint venture arrangement, the Appellant would apply for a water licence to irrigate 600 ha and Genade Boerdery in the name of Dixoway (Pty) Limited, would apply for a Water Use Licence to irrigate 350 ha.The total irrigation area applied for in separate licence applications in respect of irrigation projects on the Appellant's farm Stoffelshoek 81 therefore amounted to 950 ha and was confirmed in the ROR as such.

His evidence confirmed and defined the nature of the relationship between the Appellant and Genade Boerdery. It is common cause that a plough certificate to irrigate 1166 ha on the farm Stoffelshoek 81 was issued in favour of Genade Boerdery and that in terms of their joint venture arrangement, the Appellant would apply for a water licence to irrigate 600 ha and Genade Boerdery in the name of Dixoway (Pty) Limited, would apply for a Water Use Licence to irrigate 350 ha.

The total irrigation area applied for in separate licence applications in respect of irrigation projects on the Appellant's farm Stoffelshoek 81 therefore amounted to 950 ha and was confirmed in the ROR as such.

(AppealRecordPage50).

78.His evidence went some way to assist the Tribunal in unravelling the confusion that ·existed in relation to the number of licence applications made by various entities in respect of the farm Stoffelshoek 81.These applications, based on my understanding of the evidence appear as follows: -

His evidence went some way to assist the Tribunal in unravelling the confusion that ·existed in relation to the number of licence applications made by various entities in respect of the farm Stoffelshoek 81.

These applications, based on my understanding of the evidence appear as follows: -

(i)An application by the Appellant (Shalom Trust) to irrigate 600 ha of land situate on the farm Stoffelshoek 81 and currently the subject of this Appeal;

An application by the Appellant (Shalom Trust) to irrigate 600 ha of land situate on the farm Stoffelshoek 81 and currently the subject of this Appeal;

(ii)An application by Dixoway (Pty) Limited to irrigate 350 ha of land also situate on the farm Stoffelshoek 81and referred to in the ROR.

An application by Dixoway (Pty) Limited to irrigate 350 ha of land also situate on the farm Stoffelshoek 81

and referred to in the ROR.

It is common cause that both the licence applications by Shalom Trust and Dixoway (Pty) Limited, in respect of separate water uses for the development of irrigation on the farm Stoffelshoek 81, were refused for the same reason i.e. that there was no available water left in the catchment.

(iii)An application by Shalom Trust for a Water Use Licence to irrigate 950 ha on the farm Stoffelshoek 81 in conjunction with Genade Boerdery lodged with the First Respondent on 9thNovember 2017.

An application by Shalom Trust for a Water Use Licence to irrigate 950 ha on the farm Stoffelshoek 81 in conjunction with Genade Boerdery lodged with the First Respondent on 9

November 2017.

This application was presented following the approval of an unrelated water allocation applied for by the First Respondent. Other than confirming that such an application was lodged with the First Respondent no further evidence with regards to its outcome was

presented.

(iv)An application for a water use licence that was later identified as Botebo Farming (pty) Limited and approved for irrigation of 100 ha in conjunction with Genade Boerdery in terms of a joint venture.This licence application had no effect on the Appeal before the Tribunal except insofar as that its approval resulted from the additional 1000 ha of irrigation subsequently approved.

An application for a water use licence that was later identified as Botebo Farming (pty) Limited and approved for irrigation of 100 ha in conjunction with Genade Boerdery in terms of a joint venture.

This licence application had no effect on the Appeal before the Tribunal except insofar as that its approval resulted from the additional 1000 ha of irrigation subsequently approved.

79.Inanswer toa question by a member of the Tribunal exploring the implication of a successful conclusion to the Appellant's new Water use Licence application following the Department's advice in January that additional water had become available, Mr Mathewson replied that notwithstanding the new Water use Licence application, the Appeal would "stand" because it (the refusal) was based on the wrong reasons and the new licence application would also "stand" because the Appellant had been invited (to apply). This evidence was confirmed in writing in a letter addressed to the First Respondent by the Appellant's legal representative.

answer to

a question by a member of the Tribunal exploring the implication of a successful conclusion to the Appellant's new Water use Licence application following the Department's advice in January that additional water had become available, Mr Mathewson replied that notwithstanding the new Water use Licence application, the Appeal would "stand" because it (the refusal) was based on the wrong reasons and the new licence application would also "stand" because the Appellant had been invited (to apply). This evidence was confirmed in writing in a letter addressed to the First Respondent by the Appellant's legal representative.

(TranscriptPage63Volume1)

(Transcript

Volume

THE FIRST RESPONDENT'S EVIDENCE

80.The only witness called by the First Respondent was Carlo Schrader.He confirmed that he is a control engineering technician responsible for resource management function in the Department of Water Affairs and Sanitation (First Respondent), and his functions included inter alia the processing of Water Use Licences.He confirmed that he was the appointed assessor dealing with the Appellant's licence application in what was previously known as the Upper Orange Water Management Area prior to the amalgamation of the Upper and Lower Orange Water Management Areas.He is currently an official of the Orange Proto Catchment Management Agency.

The only witness called by the First Respondent was Carlo Schrader.

He confirmed that he is a control engineering technician responsible for resource management function in the Department of Water Affairs and Sanitation (First Respondent), and his functions included inter alia the processing of Water Use Licences.

He confirmed that he was the appointed assessor dealing with the Appellant's licence application in what was previously known as the Upper Orange Water Management Area prior to the amalgamation of the Upper and Lower Orange Water Management Areas.

He is currently an official of the Orange Proto Catchment Management Agency.

81.The witness explained that the Appellant's WULA was for taking water from the Orange River for irrigation purposes on the farm Stoffelshoek 81, situated in theNorthern Cape Province as part of a 12000 ha irrigation project reserved in the whole of the Orange River and allocated for use in three provinces as follows: - 4000 ha in the Northern Cape;3000 ha in the Free State; and 5000in the Eastern Cape.

The witness explained that the Appellant's WULA was for taking water from the Orange River for irrigation purposes on the farm Stoffelshoek 81, situated in the

Northern Cape Province as part of a 12000 ha irrigation project reserved in the whole of the Orange River and allocated for use in three provinces as follows: - 4000 ha in the Northern Cape;

3000 ha in the Free State; and 5000in the Eastern Cape.

82.To understand his evidence in this regard, he referred to the Introductory paragraph of the Memorandum addressed to the Tribunal for clarity on the administrative responsibilities of the various Water Management Areas that overlap provincial boundaries.

To understand his evidence in this regard, he referred to the Introductory paragraph of the Memorandum addressed to the Tribunal for clarity on the administrative responsibilities of the various Water Management Areas that overlap provincial boundaries.

83.His testimony revealed that water resource management in· the Upper Orange Water Management Area lies predominantly within the Free State but also includes (occupies) portions of the Northern Cape Province, all of which is dealt with by the Free State Provincial operation.The Northern Cape Provincial operation is responsible for water resource management in the previously demarcated Lower Orange Water Management Area that lies predominantly in the Northern Cape Province.

His testimony revealed that water resource management in· the Upper Orange Water Management Area lies predominantly within the Free State but also includes (occupies) portions of the Northern Cape Province, all of which is dealt with by the Free State Provincial operation.

The Northern Cape Provincial operation is responsible for water resource management in the previously demarcated Lower Orange Water Management Area that lies predominantly in the Northern Cape Province.

84.The 4000 ha allocated to the Northern Cape was, according to the documentation filed with the subpoena bundle, referred to as the Orange River Emerging Farmers Settlement and Development Programme (OREFSDP) mainly covered applications for irrigation projects in the lower Orange Water Management Area.

The 4000 ha allocated to the Northern Cape was, according to the documentation filed with the subpoena bundle, referred to as the Orange River Emerging Farmers Settlement and Development Programme (OREFSDP) mainly covered applications for irrigation projects in the lower Orange Water Management Area.

(SubpoenaBundleAnnexure "A")

Annexure "A")

85.He explained that the farm Stoffelshoek 81 fell within the Northern Cape and was part of the Upper Orange Water Management Area.This WMA, was administratively managed in Bloemfontein as the majority of their users were situated in the Free State Province. The farm Stoffelshoek 81, although situated in the Northern Cape Province, was included in their mandated area and in view thereof, it was necessary to liaise with departmental officials in the Northern Cape office situated in Kimberley to assist in communicating with the Northern CapeCo-OrdinatingCommitteeonAgricultureWater(CCAW)fromwhoma recommendation wasrequiredpriortograntingaWateruseLicence.The witnesscontinnedthat-

He explained that the farm Stoffelshoek 81 fell within the Northern Cape and was part of the Upper Orange Water Management Area.

This WMA, was administratively managed in Bloemfontein as the majority of their users were situated in the Free State Province. The farm Stoffelshoek 81, although situated in the Northern Cape Province, was included in their mandated area and in view thereof, it was necessary to liaise with departmental officials in the Northern Cape office situated in Kimberley to assist in communicating with the Northern Cape

Co-Ordinating

Agriculture

(CCAW)

a recommendation was

required

granting

Licence.

The witness

continned

''ultimately the Department's decision was based on the recommendation from theCC4W Northern Cape'

''ultimately the Department's decision was based on the recommendation from the

W Northern Cape'

(TranscriptPage5line4-6)

86.Thewitnessconfirmedthat the licence application of the First Respondent fully complied with the requirements for a Water Use Licence, but having received a copy of the letter from the CCAW that wasnunfavourab/e';ultimately based its decision on this unfavourable recommendation and declined to grant the WUL. The contents of the,letter indicated that a substantial portion of the allocation had already been allocated to and licenced in favour of various compliant projects and the remainder of the available irrigation, was reserved for a project within the Northern Cape referred to as the Namaqua Irrigation Development Plan.

witness

confirmed

that the licence application of the First Respondent fully complied with the requirements for a Water Use Licence, but having received a copy of the letter from the CCAW that was

nunfavourab/e';

ultimately based its decision on this unfavourable recommendation and declined to grant the WUL. The contents of the,letter indicated that a substantial portion of the allocation had already been allocated to and licenced in favour of various compliant projects and the remainder of the available irrigation, was reserved for a project within the Northern Cape referred to as the Namaqua Irrigation Development Plan.

87.MrSchraderwhenasked,explainedtherelationshipbetweentheDepartment andCCAW thus: -

asked,

relationship

Department and

CCAW thus: -

"The CCAW is a forum within the Department of Agriculture, where they have various partners that sit on the CC4W, Water Affairs is part of it, Agriculture, as well as external stakeholders. And they, when the 12 000 was announced it was like given to Agriculture, for agricultural projects, so they would identify projects and then implement based on the water available from the Orange River. But when people come to the department, they just go there to get the recommendation to allocatewaterfrom the Orange River.

(Transcript Page 5 line 16 - 23)

88.ExplainingtherequirementsforthegrantingofaWULthewitnesstestifiedthat onewouldfirstlyneedwateravailabilityandsecondlythere must be compliance with the requirements of Section 27 of the NWA (Act 36 of 1998) before it can be licenced.However, when allocating water from the Orange River System a recommendation from the CCAW was an additional and necessary requirement. (Transcript Page 6 llne 13 -25)

Explaining

requirements

testified

that one

firstly

availability

secondly

there must be compliance with the requirements of Section 27 of the NWA (Act 36 of 1998) before it can be licenced.

However, when allocating water from the Orange River System a recommendation from the CCAW was an additional and necessary requirement. (Transcript Page 6 llne 13 -

89.He confirmed that based on the information before him there was no alternative but to decline the licence application and did so in respect of the Shalom application as well as that of another applicant in respect of the same property, later to be identified in evidence as Dixoway Trading (Pty) Limited.These were the only two licence applications received by the Lower Orange WMA for licensing in the Northern Cape (Upper Orange WMA).

He confirmed that based on the information before him there was no alternative but to decline the licence application and did so in respect of the Shalom application as well as that of another applicant in respect of the same property, later to be identified in evidence as Dixoway Trading (Pty) Limited.

These were the only two licence applications received by the Lower Orange WMA for licensing in the Northern Cape (Upper Orange WMA).

(Transcript Page 7 line 4 - 18)

90.Asked to explain the DWS's input and involvement with the application, Mr Schrader testified that any application, other than that from the Orange River would not require any consultation or recommendation from the relevant CCAW. The DWS would evatuate the licence, establish the water availability and make the decision based on the information available to it.However, in the Orange River system the relevant CCAW's advised the Department on the manner in which the allocation from and within that system was managed.

Asked to explain the DWS's input and involvement with the application, Mr Schrader testified that any application, other than that from the Orange River would not require any consultation or recommendation from the relevant CCAW. The DWS would evatuate the licence, establish the water availability and make the decision based on the information available to it.

However, in the Orange River system the relevant CCAW's advised the Department on the manner in which the allocation from and within that system was managed.

(Transcript Page 8 line 14 - 21)

91.Mr Schrader continued that the arrangement with the Second Respondent emanated from the applicability of an Internal Strategic Perspective (ISP) and a Memorandum of Understanding (MOU) entered into with the Department of Agriculture (Second Respondent) that relates to the 12000 ha of water reserved in the Orange River. Although the authority to issue a licence still remained with the First Respondent, a recommendation from the CCAW relating to the acceptability of an application in respect of this particular agricultural project, was imperative.This MOU was not made available to the Tribunal.However, the evidence of Mr Schrader regarding its existence and contents was not placed in issue and its exact terms and provisions were not established.

Mr Schrader continued that the arrangement with the Second Respondent emanated from the applicability of an Internal Strategic Perspective (ISP) and a Memorandum of Understanding (MOU) entered into with the Department of Agriculture (Second Respondent) that relates to the 12000 ha of water reserved in the Orange River. Although the authority to issue a licence still remained with the First Respondent, a recommendation from the CCAW relating to the acceptability of an application in respect of this particular agricultural project, was imperative.

This MOU was not made available to the Tribunal.

However, the evidence of Mr Schrader regarding its existence and contents was not placed in issue and its exact terms and provisions were not established.

(TranscriptPage8line23-25)

(Transcript Page 9 line 1 - 3)

92.Responding to a question from the Tribunal the witness confirmed that the suitability of an application for a WUL is based on the considerations presented inSection27(1)oftheNWA(Act36of1998).TheMemorandumofUnderstanding (MOU) between the DWS and the Second Respondent to which he had referred to earlier, relates to water resource management and is applicable In respect of the 12000 ha reserved in the Orange River for purpose of that project.

Responding to a question from the Tribunal the witness confirmed that the suitability of an application for a WUL is based on the considerations presented in

1998).

Memorandum

Understanding (MOU) between the DWS and the Second Respondent to which he had referred to earlier, relates to water resource management and is applicable In respect of the 12000 ha reserved in the Orange River for purpose of that project.

(TranscriptPage10line13-20)

93.He continued by stating that Section 27(l)(e) in respect of a catchment management strategy was not considered as no catchment management strategy had been established in this water management area.Water availability was dealt with in terms of the ISP's applicable to the relevant water managementarea.

He continued by stating that Section 27(l)(e) in respect of a catchment management strategy was not considered as no catchment management strategy had been established in this water management area.

Water availability was dealt with in terms of the ISP's applicable to the relevant water management

(TranscriptPage11line16-25)

(Transcript Page 12 line 1 - 2)

94.Pressed by the Tribunal to confirm whether the Department had authority to interfere with these allocations, Mr Schrader once again confirmed that in the Northern Cape approximately 3000 ha had been allocated (licenced) in terms of licences issued to 963 beneficiaries and that the balance of the irrigation water was reserved for the Namaqua project situated within the Northern cape.

Pressed by the Tribunal to confirm whether the Department had authority to interfere with these allocations, Mr Schrader once again confirmed that in the Northern Cape approximately 3000 ha had been allocated (licenced) in terms of licences issued to 963 beneficiaries and that the balance of the irrigation water was reserved for the Namaqua project situated within the Northern cape.

95.Although not fully dealt with by Counsel during Mr Schrader's evidence in chief, the witness had prepared and delivered at the request of the Tribunal in response to a subpoena, the documents referred to in the introduction to this decision specifying in detail the licences issued in the NorthernCapein respect of water reserved in the Orange River and allocated for use in the Upper Orange Management Area.

Although not fully dealt with by Counsel during Mr Schrader's evidence in chief, the witness had prepared and delivered at the request of the Tribunal in response to a subpoena, the documents referred to in the introduction to this decision specifying in detail the licences issued in the Northern

in respect of water reserved in the Orange River and allocated for use in the Upper Orange Management Area.

(SubpoenabundleinclusiveofAnnexure"A"to\\D'')

bundle

inclusive

\\D'')

96.Counsel for the Appellant examined the authority of the First Respondent to grant Water use Licences.In this regard the witness agreed that the final decision rests with and remains that of the First Respondent.

Counsel for the Appellant examined the authority of the First Respondent to grant Water use Licences.

In this regard the witness agreed that the final decision rests with and remains that of the First Respondent.

97.Counsel in cross- examination summed up the procedure correctly when he put the following to the witness:

Counsel in cross- examination summed up the procedure correctly when he put the following to the witness:

"Counsel: So that is, do you agree with me, that provides us the answer, the Department is the body that makes a decision.

Witness: Yes.

Counsel:RightItmakes a decision, as the Chairman pointed out, by taking into consideration recommendations from other bodies amongst which the CCAW.Isthat correct?

Counsel:

makes a decision, as the Chairman pointed out, by taking into consideration recommendations from other bodies amongst which the CCAW.

that correct?

Witness:Yes':

Witness:

(Transcript Page 15 line 2 - 14)

98.The witness having confirmed that the decision was based solely on the pronouncement of the CCAW, nevertheless concurred with Counsel that he had taken into consideration all those requirements specifically provided for in Section 27(1) of the Act.This appeared from the following interaction between Counsel and the witness: -

The witness having confirmed that the decision was based solely on the pronouncement of the CCAW, nevertheless concurred with Counsel that he had taken into consideration all those requirements specifically provided for in Section 27(1) of the Act.

This appeared from the following interaction between Counsel and the witness: -

Counsel: When you say that you based your decision solely or if it is said that the decision is solely based on the CCAW recommendation, that is not the only thing that was taken into consideration, am I correct?

Witness: Counsel:

You as a responsible body, that has to manage the water, has followed the prescripts of the act, specifically Section 27(1), is that correct?

You have dealt with all the requirements and I must compliment there on this report drafted by you, you will find that in the bundle, on page 50 of the bundle, I am very impressed with the whole of your report, except for the recommendation at the end, for obvious reasons. It is on page 50, it starts Background to the Appl/cation, that is a document that was compiled by yourself, is that correct:

Yes, it is a record of (indistinct). (Recommendation)

Yes.Whenyousaidthatyoudealtwith,personallydealtwiththis application,this is what you mean,you did all the groundwork and ......

personally

this application,

this is what you mean,

you did all the groundwork and ......

---Yes.

Itisyourreportprovidedtothefirstrespondentthateventuallyputs thecasebeforethefirstrespondenttomakethedecision, isthatcorrect?

report

provided

respondent

eventually

puts the

before

decision, is

correct?

--right

AndIsee that you have dealt with all the factors, enumerated in Section

see that you have dealt with all the factors, enumerated in Section

•••••••••••••••••••••••••••••.•••••••••••••••••••••••••••

.•••••••••••••••••••••••••••

(Transcript Page 16 line 1 - 24)

The witness concluded that, having fully traversed and considered all the requirements of Section 27(1) nothing militated against the issuance of a licence to the Appellant except receipt of a recommendation from the CCAW.

99.Having extensively traversed the Record of Recommendation with Mr Schrader(Record pages 47 -59) the following excerpts from the cross-examination relating to the availability of water is self-explanatory: -

Having extensively traversed the Record of Recommendation with Mr Schrader

(Record pages 47 -

59) the following excerpts from the cross-examination relating to the availability of water is self-explanatory: -

Witness: Counsel: Witness: Counsel: Witness: Counsel:

Witness Counsel

•..........every single one (consideration) is favorable, except your recommendation in the end says you do not recommend that the licence beissued.Isthatcorrect?

..........every single one (consideration) is favorable, except your recommendation in the end says you do not recommend that the licence beissued.Isthatcorrect?

..........every single one (consideration) is favorable, except your recommendation in the end says you do not recommend that the licence be

issued.

''youdonotrecommendthatthewaterlicencebeissued0

recommend

issued0

"andthatisbasedsolelyonthefactthatthereisnowater available" "Yes0

water available" "Yes0

"That is the recommendation by theCC4Wand that is what you mean that thedecision is basedsolely on thatdecision"

"That is the recommendation by the

Wand that is what you mean that the

decision is based

solely on that

decision"

"Thatdoesnotmeanthatthedecisionwastheonlyfactorthatwastaken intoconsideration,youconsideredeverythingthatyouhadtoconsider' "considered everything but if you talk about water licences, the most important Is water availability"

factor

taken into

consideration,

considered

everything

consider' "considered everything but if you talk about water licences, the most important Is water availability"

(Transcript Page 18 line 20 - 25) and later

"I,justtomakesureeverythingthatneededtobeconsideredhasbeen consideredandfoundfavourable exceptthere wasnowaterandthatis why yousay it istheonlyreason whyit wasdeclined"

needed

been considered

favourable except

there was

is why you

say it is

reason why

it was

declined"

"Yes, In terms of water availability

(TranscriptPage19line8-13)

100.Incross-examination, the witness once again repeated his evidencethat no catchment management strategy had been established and the Department used the relevant ISP and the NWRS 1 and 2 as guidelineswhen itcomes to waterallocation. Reverting tothe reservationof the 12000 ha in the Orange River system, Mr Schrader repeats his evidence in chief and confirms that the 12000 ha was reserved for future allocation in respect of specific projects. (Transcript Page 23 lines 2 -12)

cross-examination, the witness once again repeated his evidence

that no catchment management strategy had been established and the Department used the relevant ISP and the NWRS 1 and 2 as guidelines

when it

comes to water

allocation. Reverting to

the reservation

of the 12000 ha in the Orange River system, Mr Schrader repeats his evidence in chief and confirms that the 12000 ha was reserved for future allocation in respect of specific projects. (Transcript Page 23 lines 2 -

101.Counselthenproceededtoexaminetheavailabilityofallthewater available in the Orange River system and finally understood that in respect: of the allocation made to the various provinces, each provincial CCAW was required to provide the First Respondent with a recommendation.

proceeded

examine

water available in the Orange River system and finally understood that in respect: of the allocation made to the various provinces, each provincial CCAW was required to provide the First Respondent with a recommendation.

(Transcript Page 25 line 1 - 25)

(TranscriptPage26line1-13)

102.ReviewingtheavailabilityofwaterallocatedtotheNorthernCape Province, Counsel accepted that of the 4000 ha allocated to the Northern Cape 3300 ha (approximately) had been allocated (licenced).The remainder of 700 hareservedfortheNamaquaIrrigationProjectstillhadtobeallocated (licensed). This he putto the witnesswasthe positionas atthe17thMarch 2016 being the date on which the licence was declined.The witness agreed. (Transcript Page 26 line 12 -25)

Reviewing

Northern

Cape Province, Counsel accepted that of the 4000 ha allocated to the Northern Cape 3300 ha (approximately) had been allocated (licenced).

The remainder of 700 ha

reserved

Namaqua

Irrigation

Project

allocated (licensed). This he put

to the witness

the position

as at

March 2016 being the date on which the licence was declined.

The witness agreed. (Transcript Page 26 line 12 -

103.Counselcontendedthattheadditionalallocationof1000hamadeavailable from the Orange River system subsequent to the 1ihMarch 2016 increased the total availability of water in the Northern Cape to 5000 ha.This contention was strenuously denied by the witness who explained that the Orange Catchment Proto Management Agency approached the Department to avail 1000 ha of irrigation water to those users that were unable to be accommodated from the 4000 ha originally allocated and was therefore totally separate from and had nothing to do with the original allocation.

contended

additional

available from the Orange River system subsequent to the 1ih

March 2016 increased the total availability of water in the Northern Cape to 5000 ha.

This contention was strenuously denied by the witness who explained that the Orange Catchment Proto Management Agency approached the Department to avail 1000 ha of irrigation water to those users that were unable to be accommodated from the 4000 ha originally allocated and was therefore totally separate from and had nothing to do with the original allocation.

(Transcript Page 27 line 1- 5)

104.The witness confirmed that the availability of this irrigation water was made possible as a result of an institutional realignmentin which the country's WMA's were reduced from 19 to 9 WMA and had as part of the reduction in number, resulted in the amalgamation of the Upper and Lower Orange Management Area into a single water management area known as the Orange Proto Catchment Management Agency.

The witness confirmed that the availability of this irrigation water was made possible as a result of an institutional realignment

in which the country's WMA's were reduced from 19 to 9 WMA and had as part of the reduction in number, resulted in the amalgamation of the Upper and Lower Orange Management Area into a single water management area known as the Orange Proto Catchment Management Agency.

(Transcript Page 27 line 6 - 14)

In this regard the witness was at pains to explain that Counsel's contention that this or any additional water, whatever its origin may be, could be dealt with by the Department as part of the WULA under consideration was incorrect as requirements differ and-

''you cannot put it in one boat'

(Transcript Page 28 line 3 - 18)

105.Inresponse to an intervention from the Tribunal, Counsel contended that the Tribunal was authorised to direct that the licence be granted as a result of the subsequent availability of the additional 1000 ha of irrigation water.This he argued was possible as the nature of the proceedings was a rehearing and therefore an Appeal in the "wide sense"

capable of taking into consideration facts and information that become available subsequent to the decision that formed the basis of the Appeal.

response to an intervention from the Tribunal, Counsel contended that the Tribunal was authorised to direct that the licence be granted as a result of the subsequent availability of the additional 1000 ha of irrigation water.

This he argued was possible as the nature of the proceedings was a rehearing and therefore an Appeal in the "wide sense"

capable of taking into consideration facts and information that become available subsequent to the decision that formed the basis of the Appeal.

Evidence given by Mr Mathewson in this regard confirmed that the Appellant had lodged a new Water Use Licence application for 950 ha of irrigation as a result of the additional water availability. Counsel agreed to address this aspect later in argument.

(Transcript Page 29 line 3 - 5)

(TranscriptPage30line13-24)

(Transcript Page 31 line 3 11)

106.Counsel's cross-examination was then directed to the 700 ha that was "unallocated"buthadaccordingtoMrSchraderbeenreseivedforfuturedevelopment.Itwas put to the witness that nothing had happened to it and it was therefore to still flowing Into the sea.The witness replied that he could not comment on the statement, as he was not part of the Northern Cape operation that dealt with water management in the Lower Orange WMA, situated in Upington.He once again confirmed that his responsibility remained in the Upper Orange Water Management Area.

Counsel's cross-examination was then directed to the 700 ha that was "unallocated"

according

reseived

future

development.

was put to the witness that nothing had happened to it and it was therefore to still flowing Into the sea.

The witness replied that he could not comment on the statement, as he was not part of the Northern Cape operation that dealt with water management in the Lower Orange WMA, situated in Upington.

He once again confirmed that his responsibility remained in the Upper Orange Water Management Area.

(TranscriptPage32line5-24)

107.Inan attempt by a member of the Tribunal to understand the terms and definitions used by Counsel and the witness in describing the

principles applicable to the manner in which the allocated water was dealt with, the witness explained that of the 4000 ha allocated to the Northern Cape Province,licences had been issued (allocated) to various applicants (approved by the CCAW) and amounting to +- 3300 ha and the remainder (700 ha) not yet licenced, had been reserved for use by the Northern Cape Province Government for use in a particular agricultural initiative.He agreed with the Tribunal that from inception the water allocated to the Northern Cape Province supported the principle of a "set aside."

an attempt by a member of the Tribunal to understand the terms and definitions used by Counsel and the witness in describing the

principles applicable to the manner in which the allocated water was dealt with, the witness explained that of the 4000 ha allocated to the Northern Cape Province,

licences had been issued (allocated) to various applicants (approved by the CCAW) and amounting to +- 3300 ha and the remainder (700 ha) not yet licenced, had been reserved for use by the Northern Cape Province Government for use in a particular agricultural initiative.

He agreed with the Tribunal that from inception the water allocated to the Northern Cape Province supported the principle of a "set aside."

(TranscriptPage34line19-25)

(Transcript Page 35 line 1 - 4)

(Transcript page 35 line 5 - 11)

108.This replyled to aquestionby Counselforthewitnessto explainwhat had led to the removalof 700 ha of irrigationwater "out of the pool" andwhat steps were taken to do so.Mr Schrader once again reiterated that the remaining 700 ha was reserved for use in the Namaqua Irrigation Development Plan, thus confirming his previous testimony that in respect of water rights from the Upper Orange River, consultation with the CCAW in the Northern Cape was a requirement.

This reply

led to a

question

by Counsel

to explain

what had led to the removal

of 700 ha of irrigation

water "out of the pool" and

what steps were taken to do so.

Mr Schrader once again reiterated that the remaining 700 ha was reserved for use in the Namaqua Irrigation Development Plan, thus confirming his previous testimony that in respect of water rights from the Upper Orange River, consultation with the CCAW in the Northern Cape was a requirement.

(TranscriptPage40line6-10)

109.Thisrequirementwasconfirmedbythecontentsofaletterdated14thAugust2015inwhichtheFirstRespondenthadrequestedtheAppellanttoprovidesucharecommendationpriortothe15'11September2015, failing which the Department would make Its decision of the available information. Compliance with this requirement was, In the evidence of Mr Schrader, the duty of the Appellant.Counsel when presenting the contents of a letter from the Second Respondent to the Appellant requesting the lodgment of a business plan for presentation to the Orange River Emerging Farmers Settlement and Development Project (OREFSDP) elicited no response from the witness. Later evidence given by Mr Schrader confirmed that the First Respondent did not require or request a business plan, but merely a response from the CCAW.

requirement

contents

August

requested

provide

2015, failing which the Department would make Its decision of the available information. Compliance with this requirement was, In the evidence of Mr Schrader, the duty of the Appellant.

Counsel when presenting the contents of a letter from the Second Respondent to the Appellant requesting the lodgment of a business plan for presentation to the Orange River Emerging Farmers Settlement and Development Project (OREFSDP) elicited no response from the witness. Later evidence given by Mr Schrader confirmed that the First Respondent did not require or request a business plan, but merely a response from the CCAW.

110.AttherequestofCounsel,MrMathewsontheAppellant'slegal representative continued the cross-examination of Mr Schrader and immediately put it to the witness that the CCAW could not make any decision without the business plan and that in the absence thereof, the 700 ha of irrigation water was still available and capable of being dealt with differently, notwithstanding it having been ring-fenced.Mr Schrader disagreed.

Counsel,

Mathewson

legal representative continued the cross-examination of Mr Schrader and immediately put it to the witness that the CCAW could not make any decision without the business plan and that in the absence thereof, the 700 ha of irrigation water was still available and capable of being dealt with differently, notwithstanding it having been ring-fenced.

Mr Schrader disagreed.

(Transcript Page 43 line 17 - 21)

111.MrMathewsonput ittothewitnessthat betweenthedateofthereceipt by the Second Respondent of the Appellant's business plan on the 14thMarch 2016 and the refusal letter dated the 1thMarch 2016, a mere three days had elapsed thus no CCAW meeting could have taken place allowing for the consideration of the business plan. Mr Schrader however repliedthat assoon as the Second Respondent's letter of the 11thJanuary 2016 had been received, it together with the licence application was presented to the Department's Water Use Application

and Adjudication Committee (WUAAC) for a decision. The delegated authority formally declined the licence application on the 17thMarch 2016.

put it

that between

receipt by the Second Respondent of the Appellant's business plan on the 14

March 2016 and the refusal letter dated the 1th

March 2016, a mere three days had elapsed thus no CCAW meeting could have taken place allowing for the consideration of the business plan. Mr Schrader however replied

that as

soon as the Second Respondent's letter of the 11

January 2016 had been received, it together with the licence application was presented to the Department's Water Use Application

and Adjudication Committee (WUAAC) for a decision. The delegated authority formally declined the licence application on the 17

March 2016.

(Transcript Page 46 line 1- 10)

112.Notwithstanding the reply, Mr Mathewson persisted with his line of cross- examination and put it to the witness that the First Respondent could only make adecisionafterreceiptofarecommendation,basedonthebusinessplanpresented by the Appellant.In answer to a question whether the First Respondent had received a recommendation Mr Schrader responded that he was at the time employed by the First Respondent within the Upper Orange Water Management Area and was not part of the Northern Cape CCAW.He merely requested a recommendation from them and in response to the request he received a copy of the letter addressed to the Appellant.He concluded by stating that it is unacceptable to make him accountable for the proper procedures or lack thereof of the Second Respondent. The Tribunal agreed that it is not possible for the witness to answer matters relating to the administration conducted by the CCAW.

Notwithstanding the reply, Mr Mathewson persisted with his line of cross- examination and put it to the witness that the First Respondent could only make a

receipt

recommendation,

presented by the Appellant.

In answer to a question whether the First Respondent had received a recommendation Mr Schrader responded that he was at the time employed by the First Respondent within the Upper Orange Water Management Area and was not part of the Northern Cape CCAW.

He merely requested a recommendation from them and in response to the request he received a copy of the letter addressed to the Appellant.

He concluded by stating that it is unacceptable to make him accountable for the proper procedures or lack thereof of the Second Respondent. The Tribunal agreed that it is not possible for the witness to answer matters relating to the administration conducted by the CCAW.

(Transcript Page 46 line 20 - 25)

(Transcript Page 47 line 1 - 12)

113.PressedtoexplainonceagainhisrelationshipwiththeCCAWhe confirmed that he was not a part of the Northern cape CCAW, and had no sitting on it.He explained that he was a member of the Free State CCAW and that at the time this application was dealt with by offices situated in two separate and different operational areas that was explained in detail in earlier evidence.The letter addressed to the Appellant instructing it to obtain a recommendation from the CCAW in the Northern cape was part of the department's due diligence.

Pressed

explain

he confirmed that he was not a part of the Northern cape CCAW, and had no sitting on it.

He explained that he was a member of the Free State CCAW and that at the time this application was dealt with by offices situated in two separate and different operational areas that was explained in detail in earlier evidence.

The letter addressed to the Appellant instructing it to obtain a recommendation from the CCAW in the Northern cape was part of the department's due diligence.

(Transcript Page 49 line 11 - 25)

(TranscriptPage50line15-21)

114.He explained that in view of the delay in finalising the application, he had taken iton himself to call on the Second Respondent's offices in the Northern Cape to ascertain the reason why the delay had occurred and was there handed a copy of the letter addressed to the Appellant.Persisting in his attempt to persuade the witness that the due diligence letter required a business plan to be presented, Mr Schrader replied that he requested a recommendation and that it should not be confused with the manner in which the CCAW conducted its affairs.Inreply to a question from a member of the Tribunal he confirmed that he did not enquire whether the CCAW had considered a business plan as he would not question the integrity of other officials.

He explained that in view of the delay in finalising the application, he had taken it

on himself to call on the Second Respondent's offices in the Northern Cape to ascertain the reason why the delay had occurred and was there handed a copy of the letter addressed to the Appellant.

Persisting in his attempt to persuade the witness that the due diligence letter required a business plan to be presented, Mr Schrader replied that he requested a recommendation and that it should not be confused with the manner in which the CCAW conducted its affairs.

reply to a question from a member of the Tribunal he confirmed that he did not enquire whether the CCAW had considered a business plan as he would not question the integrity of other officials.

(TranscriptPage51line12-20)

(TranscriptPage51line21-25)

(TranscriptPage52line1-5)

115.Mr Mathewson confirmed that subsequent to the refusal of the Appellant's licence application, a licence had in fact been issued for water use on Stoffelshoek 81.This licence was formally applied for in the name of Botebo Farming (Pty) Limited as a joint venture between Genade Trust and the Applicant for water use on the farm Stoffelshoek 81 from the 1000 ha of additional irrigation made possible following the restructuring of the Upper and Lower Orange Management Areas.

Mr Mathewson confirmed that subsequent to the refusal of the Appellant's licence application, a licence had in fact been issued for water use on Stoffelshoek 81.

This licence was formally applied for in the name of Botebo Farming (Pty) Limited as a joint venture between Genade Trust and the Applicant for water use on the farm Stoffelshoek 81 from the 1000 ha of additional irrigation made possible following the restructuring of the Upper and Lower Orange Management Areas.

(TranscriptPage56line20-25)

(TranscriptPage57line1--5)

116.Counsel referred the witness to the preamble of the NWA (Act 36 of 1998) relating to inequalities and iniquities of the past that require to be addressed and should be borne in mind when considering the provisions of Section 27{l)(b) of the Act in granting new licences. Pressed to respond to a request to explain what strategies the First Respondent had put in place, Mr Schrader referred the Tribunal to the Water Allocation Reform Strategy document attached to the subpoena bundle as Annexure "B".

Counsel referred the witness to the preamble of the NWA (Act 36 of 1998) relating to inequalities and iniquities of the past that require to be addressed and should be borne in mind when considering the provisions of Section 27{l)(b) of the Act in granting new licences. Pressed to respond to a request to explain what strategies the First Respondent had put in place, Mr Schrader referred the Tribunal to the Water Allocation Reform Strategy document attached to the subpoena bundle as Annexure "B".

(TranscriptPage63line1-20).

(TranscriptPage63line1-5)

ThewitnessacceptedthatSection27(1)(b) oftheNWA addressedtheneedto redresstheresultsofpastracialandgenderdiscriminationandconfirmedthatin answer to Counsel's enquiry, the First Respondent had included the Water Allocation Reform Strategy document in which the First Respondent's strategy is comprehensively set out.In any event regard should be had to Counsel's concession and commendation that the witness had attended admirably to the considerations provided inSection 27{1)(b) of theNWA.

accepted

27(1)(b) of

NWA addressed

to redress

discrimination

in answer to Counsel's enquiry, the First Respondent had included the Water Allocation Reform Strategy document in which the First Respondent's strategy is comprehensively set out.

In any event regard should be had to Counsel's concession and commendation that the witness had attended admirably to the considerations provided in

Section 27{1)(b) of the

(QuestionNo.6subpoenabundleAnnexure"B1')

(Question

subpoena

117.Counsel's suggestion that water allocation (licensing) is the basis used to strive for and address the racial and gender inequalities occasioned by past discriminatory practices was corrected by Mr Schrader who pointed out that water allocation (licensing) is not a tool for water allocation reform.Water allocation was guided by the Water Allocation Reform Strategy (WARS) on itsown, comprehensively dealt with in the documentincluded in his responseto the subpoena as.Annexure"B11•

Counsel's suggestion that water allocation (licensing) is the basis used to strive for and address the racial and gender inequalities occasioned by past discriminatory practices was corrected by Mr Schrader who pointed out that water allocation (licensing) is not a tool for water allocation reform.

Water allocation was guided by the Water Allocation Reform Strategy (WARS) on its

own, comprehensively dealt with in the document

included in his response

to the subpoena as.Annexure

This response prompted Counsel to enquire what is meant by water allocation. Mr Schrader explained that water allocation is an authorisation to use water in the manner provided for in Chapter 4 of theNWA.However, in redressing the racial and gender discrimination iniquities of the past, the Water Allocation Strategy is applied using the strategic mechanisms provided therein and implemented using programmes directed towards its strategies and objectives. (Transcript Page 63 line 17 - 25)

(TranscriptPage64line13-22)

118.The Tribunal commented by reminding Counsel that Mr Schrader had given evidencethattheWULwasrefusedastherewasnowateravailable whereas it now appeared that Counsel embarked on a matter relating to policy issues that he (Mr Schrader) does not formulate.Counsel reiterated that it is the witness that implements the policy and the Appellant is entitled to know why the licence was refused as according to it 700 ha of irrigation was still available and they do not see any reason why it should be ringfenced for the Namaqua project as opposed to be awarded to the Appellant.

The Tribunal commented by reminding Counsel that Mr Schrader had given evidence

available whereas it now appeared that Counsel embarked on a matter relating to policy issues that he (Mr Schrader) does not formulate.

Counsel reiterated that it is the witness that implements the policy and the Appellant is entitled to know why the licence was refused as according to it 700 ha of irrigation was still available and they do not see any reason why it should be ringfenced for the Namaqua project as opposed to be awarded to the Appellant.

(TranscriptPage67line16-25)

(TranscriptPage68line12-17)

(Transcript Page 68 line 20 - 24)

119.The Tribunal enquired whether it was the Appellant's case that evidence given by Mr Schraderthat the 700 ha irrigation was reserved for use in the Namaqua project, was false or incorrect, Counsel replied as follows: -

The Tribunal enquired whether it was the Appellant's case that evidence given by Mr Schrader

that the 700 ha irrigation was reserved for use in the Namaqua project, was false or incorrect, Counsel replied as follows: -

Counsel: ''My case is that water had not been allocated and is going to waste and that a duty on the department, that water Is not used and that Is why we asked him, has that been allocated and he cannot give us that information6.

{TranscriptPage69line17-24)

{Transcript

120.ThissubmissionwasputtoMrSchraderasfollows:-

Counsel· "Mr Schrader, we dispute that the700 ha that is left of the 4000 that was earmarked or ringfenced or set aside for Namaqualand has been issued (licensed).

Witness: I cannot confirm that, as true. I am responsible for the Upper part

the Lower part, it could be that the licence is issued, it could be that the licence is not issued We need to confirm.0

He explains that as the geographic location of the Namaqua Development Project is situated in the Northern Cape (Lower Orange) he would not know whether any licence had been issued in respect of that project.

(TranscriptPage71line18-22)

(TranscriptPage73line1-6)

(TranscriptPage73line6-13)

121.Following the dispute surrounding the status of the remaining alleged available water, Counsel launched into a new attack by explaining to the witness the following:-

Following the dispute surrounding the status of the remaining alleged available water, Counsel launched into a new attack by explaining to the witness the following:

Counsel: "The Appellants' are alleging that the decision was wrong, you made the wrong decision. I am talking about your department, not you personally.One of the reasons why we say it is wrong is wesay that what water licences you issued were issued tothe wrongpeople and ifyou set any water aside, whether licences have beenissued or not, itshould not have been set aside for thatit should

One of the reasons why we say it is wrong is we

say that what water licences you issued were issued to

the wrong

people and if

you set any water aside, whether licences have been

issued or not, it

should not have been set aside for that

it should

beissued tothe Appellants'

issued to

the Appellants'

Okay. Please feel free to comment at any stage, I just wanted to put my case before youn

(Transcript Page 75 line 1 - 12)

Mr Schrader denied this statement and confirmed that the licences were dealt with properly as shown by the information contained in the spreadsheet where all the beneficiaries were HDI's.

(Transcript Page 76 line 4 - 8)

122.TounderscoretheAppellant'sviewinthisregard,thewitnesswas referred to a letter of the 11thJanuary 2016 in which the Second Respondent had indicated that the application for irrigation . far exceeded the 4000 ha allocation.At that stage however more than 90% of the allocated water rights of approximately 3300 ha was for equity scheme projects where the shareholding of the beneficiaries was far below 50% with little chance of them becoming majority shareholders (owners) for many years to come.This information led the Appellant to the conclusion that this statement signified a "complaint" and confirmed the Appellant's view that the licences were "allocated,, or issued to beneficiaries who have no opportunity of becoming owners, that they are token beneficiaries and in doing so, the spirit and purport of the NWA was not really satisfied.Mr Schrader disagreed.

underscore

regard,

was referred to a letter of the 11

January 2016 in which the Second Respondent had indicated that the application for irrigation . far exceeded the 4000 ha allocation.

At that stage however more than 90% of the allocated water rights of approximately 3300 ha was for equity scheme projects where the shareholding of the beneficiaries was far below 50% with little chance of them becoming majority shareholders (owners) for many years to come.

This information led the Appellant to the conclusion that this statement signified a "complaint" and confirmed the Appellant's view that the licences were "allocated,, or issued to beneficiaries who have no opportunity of becoming owners, that they are token beneficiaries and in doing so, the spirit and purport of the NWA was not really satisfied.

(Transcript Page 76 line 14 - 25)

(TranscriptPage77line1-7)

123.TheAppellant'sinterpretationofthestatementandtheconclusion reached culminated in the belief that the licences to various Applicant's, contrary to the intention of the set criteria of the project, was far less favourable or "meritorious" than the Appellant's application.

interpretation

conclusion reached culminated in the belief that the licences to various Applicant's, contrary to the intention of the set criteria of the project, was far less favourable or "meritorious" than the Appellant's application.

Mr Schrader answered by confirming that he is unable to comment as he is notau faitwiththe set of criteria required to be applied by the CCAW nor with the contents of the Appellant's proposal. Fortunately,Counseldecidedtodefertheseopinionstolaterargument.

Mr Schrader answered by confirming that he is unable to comment as he is not

au faitwith

the set of criteria required to be applied by the CCAW nor with the contents of the Appellant's proposal. Fortunately,

decided

opinions

argument.

(Transcript Page 77 line 15 - 25)

(Transcript Page 78 line 5 - 18)

124.Indealingwiththe businessplanCounselconcededthatthe First Respondent could not be expected to comment thereon.He did however pose the question whether the First Respondent was in possession of a recommendation from the CCAW, Mr Schrader replied that the only letter he received was that which the CCAW addressed to the Appellant's attorneys. This Mr Schrader confirmed was ultimately viewed as the recommendation.

dealing

the business

conceded

the First Respondent could not be expected to comment thereon.

He did however pose the question whether the First Respondent was in possession of a recommendation from the CCAW, Mr Schrader replied that the only letter he received was that which the CCAW addressed to the Appellant's attorneys. This Mr Schrader confirmed was ultimately viewed as the recommendation.

(transcript Page 80 tine 20 - 25)

(transcript Page 81 line 1 - 13)

The Appellant contends that the correspondence received by the first Respondent did not constitute a recommendation but was merely ongoing correspondence discussing the possibility of future water availability. Mr Schrader replied that the letter, a copy of which he received confirmed that there was no water available. After receiving the letter, he informed Mr Mathewson, the Appellant's legal representative and explained its consequences. (Transcript Page 81)

125.Inan attempt to understand the Appellant's insistence that the remainder (700 ha) was still available for allocation (Licensing) a question was posed by the Tribunal whether the Responsible Authority having testified via its employee Mr Schrader that itisbound by the pronouncement of the Second Respondent could have ignored it contents and allocated this water to anybody.Counsel's reply to this enquiry reiterates that it is the Appellant's case that firstly the Second Respondent can only make a recommendation and that a final decision rests with the First Respondent and secondly, they did not comply with their duty to eradicate the inequality of past discriminatory practices.Lastly the decision was made without a recommendation thereby basing their decision on incomplete information.The reply was also best left for argument.

an attempt to understand the Appellant's insistence that the remainder (700 ha) was still available for allocation (Licensing) a question was posed by the Tribunal whether the Responsible Authority having testified via its employee Mr Schrader that it

bound by the pronouncement of the Second Respondent could have ignored it contents and allocated this water to anybody.

Counsel's reply to this enquiry reiterates that it is the Appellant's case that firstly the Second Respondent can only make a recommendation and that a final decision rests with the First Respondent and secondly, they did not comply with their duty to eradicate the inequality of past discriminatory practices.

Lastly the decision was made without a recommendation thereby basing their decision on incomplete information.

The reply was also best left for argument.

(Transcript Page 89 line 1 - 25)

(Transcript Page 90 line 1 - 23)

126.Inreplyto this statementby Counsel in which the Appellant's case was summarised,MrSchraderpointedoutthatifitisarguedthattheFirst Respondent should ignore the contents of the Second Respondent's letter based on the assumptionthat itwas not a recommendation or alternativelythat the letter contained incomplete information and therefore the discussions between the Appellant and the Second Respondent was still ongoing, the licence would in any event have been declined for the lack of the required recommendation. (Transcript Page 91line 14 -19)

to this statement

by Counsel in which the Appellant's case was summarised,

pointed

argued

First Respondent should ignore the contents of the Second Respondent's letter based on the assumption

that it

was not a recommendation or alternatively

that the letter contained incomplete information and therefore the discussions between the Appellant and the Second Respondent was still ongoing, the licence would in any event have been declined for the lack of the required recommendation. (Transcript Page 91

line 14 -

(Transcript Page 92 line 4 - 12)

ARGUMENT AND CONCLUSION

127.The Appeal of the Second Appellant in respect of the 1987 refusal, was dismissed following the receipt of separate written Heads of Argument presented by the partiesin limineand any argument repeated in the main Heads of Argument in support thereof, will not be dealt with again.

The Appeal of the Second Appellant in respect of the 1987 refusal, was dismissed following the receipt of separate written Heads of Argument presented by the parties

in limine

and any argument repeated in the main Heads of Argument in support thereof, will not be dealt with again.

128.The Appellant concedes that the main issue in this Appeal is limited to the availability of water.In support thereof, the following submissions were presented in argument: -

The Appellant concedes that the main issue in this Appeal is limited to the availability of water.

In support thereof, the following submissions were presented in argument: -

(i)"Firstly, itwould be argued that, at the time when both the applications were made, there was water available to grant such a licence.

"Firstly, it

would be argued that, at the time when both the applications were made, there was water available to grant such a licence.

(ii)Should the Tribunal find that there was no, alternatively insuffident, water at the time itwill be argued that the Tribunal mar, and must take into considerationany water available subsequently thatmay satisfy theapplication for a licence.

Should the Tribunal find that there was no, alternatively insuffident, water at the time it

will be argued that the Tribunal mar, and must take into consideration

any water available subsequently that

may satisfy the

application for a licence.

(iii)Even if itis found that there was no water available at the time of the decision and even if the Tribunal found that there is insufficient water that was made available subsequently, itwill be argued that the Tribunal may and should make an order granting a licence to the Appellant as it is not bound by the National Water Resource strategy.or other considerations to which theDepartment was bound."

Even if it

is found that there was no water available at the time of the decision and even if the Tribunal found that there is insufficient water that was made available subsequently, it

will be argued that the Tribunal may and should make an order granting a licence to the Appellant as it is not bound by the National Water Resource strategy

.or other considerations to which the

Department was bound.

(Appellant's Heads of Argument page 7 paragraphs 21 (2) - 21 (4)]

129.InsupportofthementionedsubmissiontheAppellantquoteswith approval a comment made by the Tribunal: -

support

quotes

with approval a comment made by the Tribunal: -

"The key question now is going to be, based on the information we have received, eon we say the Deponent (First Respondent) refused to allocate a Water Use Licence, whereas there was water available. I think that is the issue."

(Transcript Page 68 line 11 - 14)

(Appellant'sHeadsofArgumentpage5-6paragraph17)

(Appellant's

130.Mr Schrader for the First Respondent agreed during his evidence that the Appellant's WULA had been properly considered, that there was nothing preventing the First Respondent from granting a licence, provided however that there was water available to do so.Inagreement with this evidence Counsel stated that water availability is one of the most important requirements because if there is no water it cannot be allocated.Summarised it is clear that the parties to the Appeal are in agreement that in the absence of any allocable water in a catchment water licences cannot be granted or issued and it follows that in such an event itwould be the end of this Appeal.

Mr Schrader for the First Respondent agreed during his evidence that the Appellant's WULA had been properly considered, that there was nothing preventing the First Respondent from granting a licence, provided however that there was water available to do so.

agreement with this evidence Counsel stated that water availability is one of the most important requirements because if there is no water it cannot be allocated.

Summarised it is clear that the parties to the Appeal are in agreement that in the absence of any allocable water in a catchment water licences cannot be granted or issued and it follows that in such an event it

would be the end of this Appeal.

(Appellant's HeadsofArgumentPage 6paragraph25)

(Appellant's Heads

Page 6

131.Having limited its Appeal to the availability of water, the Appellant refers toits availability at the time when" both" applications were made.These applications relate to the application by the Second Appellant In respect of water rights to which she was allegedly entitled but refused at the time and subsequently dismissed on Appeal by this Tribunal.

Having limited its Appeal to the availability of water, the Appellant refers to

its availability at the time when" both" applications were made.

These applications relate to the application by the Second Appellant In respect of water rights to which she was allegedly entitled but refused at the time and subsequently dismissed on Appeal by this Tribunal.

The remaining application and the subject of this appeal, was for the taking of water from the Upper Orange River for use on the farm Stoffelshoek 81 and formed part of an agricultural initiative that had its origin in the NWRS as an equity programme referred to as the Orange River Emerging Farmers Settlement and Development Project (OREFSDP). It is trite that the OREFSDP initiative envisaged

specifically the development of economically sustainable agricultural opportunities in respect of resource poor farmers whilst

simultaneously addressing the past inequalities of racial and gender discrimination.

132.The First Respondent dealt comprehensively with the manner in which this long-standingprojectwasmanagedanddescribedtheadministrative complexities and requirements in dealing with the 4000 ha irrigation that it had allocated to the Northern Cape Province for use in the OREFSDP project.

The First Respondent dealt comprehensively with the manner in which this long-standing

project

managed

described

administrative complexities and requirements in dealing with the 4000 ha irrigation that it had allocated to the Northern Cape Province for use in the OREFSDP project.

The overlapping of various Water Management Areas (WMA's) with provincial boundaries required that licence applications emanating from the Upper and Lower Water Management Areas were in some instances administratively managed by different provincial operations.

The geographical location of the Appellant's property although situated in the Northern Cape (Upper Orange) was managed by the Free State Provincial operation (lower Orange) situated in Bloemfontein while all the remaining properties that participated in the project were dealt with by the Northern Cape provincial operation (Upper Orange) situated in Kimberley. These facts were not in dispute.

133.Undisputed evidence adduced by the First Respondent confirmed that at the time there was no catchment management strategy in place within the WMA and water resource management was guided by the applicable Internal Strategic Perspective (ISP) and the Water Allocation Reform Strategy (WARS).The imperatives of the WARS strategy dictate that: -

Undisputed evidence adduced by the First Respondent confirmed that at the time there was no catchment management strategy in place within the WMA and water resource management was guided by the applicable Internal Strategic Perspective (ISP) and the Water Allocation Reform Strategy (WARS).

The imperatives of the WARS strategy dictate that: -

"A need to understand the water allocations strategic objectives in the context of the NWA and the NWRS is a major imperative in the development of the WAR strategy. This provides a framework from which .the water allocation issues with respect to the need for redress and achieving equity objectives in water a/location for benefidal use by emerging users.

(Annexure"B"Page12)

(Annexure

134.The WAR strategy provides various strategic actions that align theprogramme with key government initiatives such as land reform and rural development.To formalise and accelerate implementation of the programme, itisenvisaged that the First Respondent will work with the Department Agriculture, Rural Development and Land Reform, (inclusive of its provincial departments) to achieve a coherent programme of land, water and agrarian reform.To do so it allows for the assimilation and coordination of current structures to fully accommodate joint project implementation and envisages the signingofMemorandaofUnderstanding(MOU)toensurecommitmenttothe joint implementation mechanisms.

The WAR strategy provides various strategic actions that align the

programme with key government initiatives such as land reform and rural development.

To formalise and accelerate implementation of the programme, it

envisaged that the First Respondent will work with the Department Agriculture, Rural Development and Land Reform, (inclusive of its provincial departments) to achieve a coherent programme of land, water and agrarian reform.

To do so it allows for the assimilation and coordination of current structures to fully accommodate joint project implementation and envisages the signing

Memoranda

Understanding

ensure

commitment

the joint implementation mechanisms.

Evidence presented In this Appeal confirms that the nature of this project is a prime example of exactly that which the WAR strategy has in mind.

(NWRS 2 Chapter6 Page 48paragraph 6.4.1)

6 Page 48

135.TheinvolvementoftheSecondRespondentinItsofficialcapacity emanates from the strategic objectives of the projects envisaged in the NWRSand the WAR strategy.Itprovidesforthe implementationofthe WARstrategy by inter alia entering into partnerships with organs of State such as the Second Respondent with a view to formalise, accelerate and implement- those projects envisaged in the NWRS.For this reason, the NWRS notes that: -

involvement

capacity emanates from the strategic objectives of the projects envisaged in the NWRS

and the WAR strategy.

the implementation

the WAR

strategy by inter alia entering into partnerships with organs of State such as the Second Respondent with a view to formalise, accelerate and implement- those projects envisaged in the NWRS.

For this reason, the NWRS notes that: -

'The key theme of the entire water a/location reform programme stems from the realisation that government cannot achieve the objectives on its own and that partnerships with other organs of State and with key stakeholders willbeneeded to achieve theobjectives of thestrategy."

'The key theme of the entire water a/location reform programme stems from the realisation that government cannot achieve the objectives on its own and that partnerships with other organs of State and with key stakeholders will

needed to achieve the

objectives of the

strategy.

(NWRS 2 Chapter6 Page 51paragraph 6.4.2)

6 Page 51

136.The guiding principlesof Water Resource Management,stipulatedin the NWA are equity, sustainability and efficiency of which equity has not received the deserved attention.This principleis sought tobe addressedby the WAR strategy and was intended to:-

The guiding principles

of Water Resource Management,

stipulated

in the NWA are equity, sustainability and efficiency of which equity has not received the deserved attention.

This principle

is sought to

be addressed

by the WAR strategy and was intended to:

''serve as the strategic link between policy intent and the prescribed implementation of the provisions of the NWA providing the

implementation targets toward the realisation of the NWA."

The arrangements with and the participation of the Second Respondent based on the principles, strategic actions and methods of implementation referred to earlier, is a manifestation of what is envisaged in the WAR strategy and gives effect to the practical

aspects required to enable and implement the principles and objectives set out therein.

137.Inthe presentinstanceevidencebeforethe Tribunalconfirmedthatsuch a partnership between the First and Second Respondent was established for the purposeofevaluatingthesuitability,efficiencyandsustainabilityofthoseapplications aligned to the OREFSDP that complied with the set criteria. Thereafter consideration would be given to the concomitant

application for a Water Use licence and provided that such application complied with the requirements provided for in the NWA would qualify for the granting and issuing of a WUL.

the present

instance

the Tribunal

such a partnership between the First and Second Respondent was established for the purpose

evaluating

suitability,

efficiency

sustainability

applications aligned to the OREFSDP that complied with the set criteria. Thereafter consideration would be given to the concomitant

application for a Water Use licence and provided that such application complied with the requirements provided for in the NWA would qualify for the granting and issuing of a WUL.

138.Itisclearthatinrespectofthispartnershiparrangementtherelevant parties to it had separate and distinct obligations.The Second Respondent being limited to the investigation and recommendation of those agricultural related projects best suited to

be decided by it, in view of the agricultural experience and expertise of its officials, while the First Respondent was required

to issue a water use licence subject to a favourable recommendation from the Second Respondent and compliance with those considerations

required for the approval of a WUL set out in Section 27(1) of theNWA.This arrangement does not have the effect that the First Respondent abrogated its authority or obligations provided for in the NWA in granting a WUL, similarly the Second Respondent acquired no authority to allocate water as its obligation was merely to assess the compliant nature of the various agricultural projects presented to it for consideration and approval to participate in the OREFSDP. The co-operation between the First and Second Respondents was a collaborative attempt to achieve that which the WAR strategy had in mind.

partnership

arrangement

relevant parties to it had separate and distinct obligations.

The Second Respondent being limited to the investigation and recommendation of those agricultural related projects best suited to

be decided by it, in view of the agricultural experience and expertise of its officials, while the First Respondent was required

to issue a water use licence subject to a favourable recommendation from the Second Respondent and compliance with those considerations

required for the approval of a WUL set out in Section 27(1) of the

This arrangement does not have the effect that the First Respondent abrogated its authority or obligations provided for in the NWA in granting a WUL, similarly the Second Respondent acquired no authority to allocate water as its obligation was merely to assess the compliant nature of the various agricultural projects presented to it for consideration and approval to participate in the OREFSDP. The co-operation between the First and Second Respondents was a collaborative attempt to achieve that which the WAR strategy had in mind.

139.Itis accepted by the Appellant that 4000 ha of irrigation was allocated by DWS for use in the Northern Cape province in respect of this specific agricultural initiative and that the First and Second Respondents were the role players in managing the implementation of those projects that required and could be recommended for licensing.The 4000 ha originally made available was a finite amount and no water in excess thereof was available from the Orange river in respect of the Northern Cape Province.(Upper Orange WMA).

is accepted by the Appellant that 4000 ha of irrigation was allocated by DWS for use in the Northern Cape province in respect of this specific agricultural initiative and that the First and Second Respondents were the role players in managing the implementation of those projects that required and could be recommended for licensing.

The 4000 ha originally made available was a finite amount and no water in excess thereof was available from the Orange river in respect of the Northern Cape Province.

(Upper Orange WMA).

140.Applications from various applicants and entities to participate in this agricultural initiative (OREFSDP) was assessed by a committee referred to as the Coordinating Committee on Agriculture Water (CCAW) supported by a technicalteam, officials of the First Respondent and other stakeholders.This committee was identified as being the best suited entity to evaluate, consider and recommend to the First Respondent deserving and compliant applications. Clearly any application whether deserving, compliant or not, could only be formally recommended in the event that sufficient water remained from the 4000 ha of irrigation originally allocated.This recommendation servedas ahurdle for any applicant wishing to participate in the initiative.

Applications from various applicants and entities to participate in this agricultural initiative (OREFSDP) was assessed by a committee referred to as the Coordinating Committee on Agriculture Water (CCAW) supported by a technical

team, officials of the First Respondent and other stakeholders.

This committee was identified as being the best suited entity to evaluate, consider and recommend to the First Respondent deserving and compliant applications. Clearly any application whether deserving, compliant or not, could only be formally recommended in the event that sufficient water remained from the 4000 ha of irrigation originally allocated.

This recommendation served

hurdle for any applicant wishing to participate in the initiative.

141.Confirmation of this requirement by the Appellant is evidenced in correspondence between the First Respondent and it, the Appellant's response in accepting the obligations by acting on the instruction of the First Respondent and the interaction between the Appellant and the Second Respondent regarding the CCAW's requirements to enable it to provide a recommendation. The undisputed duty to arrange and obtain a recommendation rested with the Appellant and to this end evidence before the Tribunal showed a committed effort by the Appellant to do so.

Confirmation of this requirement by the Appellant is evidenced in correspondence between the First Respondent and it, the Appellant's response in accepting the obligations by acting on the instruction of the First Respondent and the interaction between the Appellant and the Second Respondent regarding the CCAW's requirements to enable it to provide a recommendation. The undisputed duty to arrange and obtain a recommendation rested with the Appellant and to this end evidence before the Tribunal showed a committed effort by the Appellant to do so.

142.AspartofthedocumentationsuppliedtotheTribunaltheFirst Respondent included a schedule in respect of the applications that were received for participation in the ORESFDP confirming that, as at 28thMay 2014 a mere 20 (twenty) days before receipt of the Appellant's licence application, Water Use Licences had been issued to various

applicants in favour of a host of beneficiaries that covered 3278 ha allocated to the Northern Cape Province.

documentation

supplied

First Respondent included a schedule in respect of the applications that were received for participation in the ORESFDP confirming that, as at 28

May 2014 a mere 20 (twenty) days before receipt of the Appellant's licence application, Water Use Licences had been issued to various

applicants in favour of a host of beneficiaries that covered 3278 ha allocated to the Northern Cape Province.

143.Itis common cause that in response to the licence application the Second Respondent confirmed in writing on the 11thJanuary 2016 that the bulk of the irrigation had been dealt with and the remainder, now known to be 722 ha of irrigation, was earmarked

for use in a project referred to as the Namaqua Irrigation Development Plan for the development of new irrigation in respect of

land owned privately by the beneficiaries or state land already occupied by beneficiaries.It confirmed•that this project complied best with the original set of criteria identified for development and the plan had been formally endorsed bytheMECforAgricultureLandReformandRuralDevelopmentduringthe2015/2016 provincial budget.The letter confirmed that the original allocation of 4000 ha of irrigation originally allocated to the Northern Cape province was therefore depleted and consequently the Appellant's application for water rights could not be accommodated.Mr Schrader confirmed in evidence that: -

is common cause that in response to the licence application the Second Respondent confirmed in writing on the 11

January 2016 that the bulk of the irrigation had been dealt with and the remainder, now known to be 722 ha of irrigation, was earmarked

for use in a project referred to as the Namaqua Irrigation Development Plan for the development of new irrigation in respect of

land owned privately by the beneficiaries or state land already occupied by beneficiaries.

It confirmed•

that this project complied best with the original set of criteria identified for development and the plan had been formally endorsed by

2015/2016 provincial budget.

The letter confirmed that the original allocation of 4000 ha of irrigation originally allocated to the Northern Cape province was therefore depleted and consequently the Appellant's application for water rights could not be accommodated.

Mr Schrader confirmed in evidence that: -

"They have already allocated a portion of the water and that there was a certain portionstill availablebut was reservedfor aprojectwithintheNorthernCape Province(TranscriptPage5lines10-14)

"They have already allocated a portion of the water and that there was a certain portion

still available

but was reserved

for a

Cape Province

144.Counselargued during the hearing that the letter was not a "recommendation"uponwhichtheFirstRespondentcouldrightfullyact.ContemporaneouscorrespondencebetweentheAppellantandtheSecond Respondent he submitted, was an indication of ongoing negotiations between the parties and that in consequence the First Respondent's refusal of the licence based on the contents was premature.

argued during the hearing that the letter was not a "recommendation"

rightfully

Contemporaneous

correspondence

Second Respondent he submitted, was an indication of ongoing negotiations between the parties and that in consequence the First Respondent's refusal of the licence based on the contents was premature.

Evidence given during the hearing explained how this information came to the notice of the First Respondent and the allegation by the Appellant that Mr Schrader had "eavesdropped" on the correspondence between the Appellant and the Second Respondent was unfortunate and stands to be ignored.

145.Thelettergivenunderthehandoftheheadofdepartmentofthe provincial office of the Department of Agriculture, Land Reform and Rural Development not only advised the Appellant that its application could not be accommodated at that stage but also explained the origin of the reserve available in the Orange River system and succinctly set out the principles and criteria for its use.

department

the provincial office of the Department of Agriculture, Land Reform and Rural Development not only advised the Appellant that its application could not be accommodated at that stage but also explained the origin of the reserve available in the Orange River system and succinctly set out the principles and criteria for its use.

It is common cause that 4000 ha of allocable water from the Orange River system was set aside by the DWS to be used by the Northern Cape provincial government in agricultural projects identified and administered by the provincial Department of Agriculture Land Reform and Rural Development in accordance with the set criteria referred to by the Chief Director in his letter and in support of the WAR strategy. No evidence of the set criteria was presented.

146.Itfollows that control of the water allocated by DWS to the Northern Cape province was exercised jointly by the First Respondent and the provincial Department of Agriculture Land Reform and Rural Development where the OREFSDP was established.Together they could decide on projects and applications that would qualify for participation in that initiative in accordance with statutory and policy requirements and imperatives.To achieve this purpose evidence by Mr Schrader explained the importance of the CCAW and its role in selecting compliant applications and confirmed that a recommendation from the CCAW was imperative in considering whether a WUL could be issued.

follows that control of the water allocated by DWS to the Northern Cape province was exercised jointly by the First Respondent and the provincial Department of Agriculture Land Reform and Rural Development where the OREFSDP was established.

Together they could decide on projects and applications that would qualify for participation in that initiative in accordance with statutory and policy requirements and imperatives.

To achieve this purpose evidence by Mr Schrader explained the importance of the CCAW and its role in selecting compliant applications and confirmed that a recommendation from the CCAW was imperative in considering whether a WUL could be issued.

147.The decision by the Respondents to reserve the remainder (722 ha) of the water for use in the Namaqua Irrigation DevelopmentPlan was therefore in order and as that particular area is geographically location in the Upper Orange Water Management Area, was dealt with by the provincial operation of the First Respondent situated in Kimberley.

The decision by the Respondents to reserve the remainder (722 ha) of the water for use in the Namaqua Irrigation Development

Plan was therefore in order and as that particular area is geographically location in the Upper Orange Water Management Area, was dealt with by the provincial operation of the First Respondent situated in Kimberley.

148.TheargumentadvancedbytheAppellantthattheremainderofthe irrigation water was unjustifiably taken from the pool, cannot be support in view of the evidence that 4000 ha of irrigation water had been allocated by the DWS to the Northern Cape provincial government with authority toadviseon whom eventually would be licensed by the First Respondent to enable the approved applicant or entity to exercise and use the water rights earmarked for the ORESFDP.The remainder of the available irrigation was still included in the original 4000 ha and was not taken from the pool but as the Appellant submitted set aside by the provincial government as it was entitled to do.

advanced

remainder

the irrigation water was unjustifiably taken from the pool, cannot be support in view of the evidence that 4000 ha of irrigation water had been allocated by the DWS to the Northern Cape provincial government with authority to

advise

on whom eventually would be licensed by the First Respondent to enable the approved applicant or entity to exercise and use the water rights earmarked for the ORESFDP.

The remainder of the available irrigation was still included in the original 4000 ha and was not taken from the pool but as the Appellant submitted set aside by the provincial government as it was entitled to do.

Having confirmed that the 4000 ha of irrigation was exhausted by the issuance of licences and the reservation of the remainder, at that stage apparently unlicensed but reserved for use in the Namaqua project the First Respondent quite correctly concluded that no water was available for the purpose of issuing a licence to the Appellant and was then formally advised of its decision.

149.TheAppellantfurthersubmittedthatin the eventofafindingthatthe Northern Cape allocation was depleted (exhausted) the Tribunal could take intoconsideration any water made available subsequently that may satisfy the Appellant's licence application.This submission was made on the strength of the availability of the 1000 ha of irrigation authorised by the First Respondent following the refusal of the Appellant's licence application.

submitted

in the event

the Northern Cape allocation was depleted (exhausted) the Tribunal could take into

consideration any water made available subsequently that may satisfy the Appellant's licence application.

This submission was made on the strength of the availability of the 1000 ha of irrigation authorised by the First Respondent following the refusal of the Appellant's licence application.

150.Insupport of this submission the Appellant referred the tribunal to the oft quoted comment by the authors of "Water Law" (quoting Baxters Administrative Law) that an appeal before the Water Tribunal is not a typical judicial appeal that requires consideration of the record only, but takes on the form of a new hearing or a so called "wide appeal".The Appellant further quoted from a quote by M A Rabe in THRHR, that the Tribunal may call for or accept or consider information that the Responsible Authority did not tonsider when the original decision was made.The view of this Tribunal is not at variance with the view espoused by these learned authors.

support of this submission the Appellant referred the tribunal to the oft quoted comment by the authors of "Water Law" (quoting Baxters Administrative Law) that an appeal before the Water Tribunal is not a typical judicial appeal that requires consideration of the record only, but takes on the form of a new hearing or a so called "wide appeal".

The Appellant further quoted from a quote by M A Rabe in THRHR, that the Tribunal may call for or accept or consider information that the Responsible Authority did not tonsider when the original decision was made.

The view of this Tribunal is not at variance with the view espoused by these learned authors.

The facts presented in this Appeal is however distinguishable from that which the authors and the Appellant in its submission had in mind. It is different in the sense that a new water licence application based on this subsequent water availability was formally lodged by the Appellant on 9thNovember 2017 for a water use licence to irrigate 950 ha on the farm Stoffelshoek 81. This was confirmed by Mr Mathewson when responding to the possibility of a successful conclusion of both the Appeal and this licence application.

(TranscriptVolume1Page63)

151.IndoingsotheAppellantwasprecludedfromsubmittingthatthe availability of the additional water was subsequent information that could be considered by the Tribunal as part of an Appeal in a wide sense when deciding the outcome thereof. This new licence application was not on Appeal before the Tribunal and no consideration could be given to it.

precluded

submitting

the availability of the additional water was subsequent information that could be considered by the Tribunal as part of an Appeal in a wide sense when deciding the outcome thereof. This new licence application was not on Appeal before the Tribunal and no consideration could be given to it.

152.Itis also necessaryto addressthe Appellant'ssubmission that, in the absence of any water being available at the time of the application or for that matter any time thereafter, or insufficiency of the water that became available subsequent to it, the Water Tribunal should make an order granting the licence to the Appellant based on the argument that the Tribunal is not bound by the National Water Resource Strategy or other considerations to which the Departmentisbound, could possibly be correct.

is also necessary

to address

the Appellant's

submission that, in the absence of any water being available at the time of the application or for that matter any time thereafter, or insufficiency of the water that became available subsequent to it, the Water Tribunal should make an order granting the licence to the Appellant based on the argument that the Tribunal is not bound by the National Water Resource Strategy or other considerations to which the Department

bound, could possibly be correct.

(HeadsofArgument Page7paragraph21.4)

(Heads

Argument Page

It is trite that if there is no water available a licence application cannot be considered in terms of the NWA and no licence application

can be entertained or issued. The Appellant is also referred to the introductory passage of Chapter 2 Part 1 of the NWA that states the following: -

"The National Water Resource Strategy which must be formally reviewed from time to,Is binding on all authorities and institutions exercising powers orperforming duties under thisAct."(Myunderlining).

"The National Water Resource Strategy which must be formally reviewed from time to,

Is binding on all authorities and institutions exercising powers or

performing duties under this

underlining).

The Water Tribunal established in terms of Section 146(1) of the NWA is such an authority, is bound by its provisions and the strategies

contained in the NWRS as well as any other considerations to which the Department is bound.

153.The Appellant submits that in the present circumstances it is relevant to determine where the onus of proof lies given the general principle that whoever avers must prove.For purpose of completeness I have repeated those paragraphs in respect of the First Respondent is alleged to carry an onus.

The Appellant submits that in the present circumstances it is relevant to determine where the onus of proof lies given the general principle that whoever avers must prove.

For purpose of completeness I have repeated those paragraphs in respect of the First Respondent is alleged to carry an onus.

"50. At the risk of belaboring the point, it serves to again point out that the onus to prove that any decision or recommendation by any other entityremovedthe water from the pool,thereby rendering water unavailable to be awarded by licence to the Appellants, rests upon the Respondents. The Respondents did not acquit themselves of this onus.

removed

the water from the pool,

51.In summary, when the decision was made by the First Respondent to refuse the application of the Appellants in 2016, it did so without the recommendation of the CCAW or Second Respondent and atatime that there was at least 722 ha of water available to grant a licence over.No evidence has been put before the Tribunal by the Respondents (who carries the onus in this

In summary, when the decision was made by the First Respondent to refuse the application of the Appellants in 2016, it did so without the recommendation of the CCAW or Second Respondent and at

time that there was at least 722 ha of water available to grant a licence over.

No evidence has been put before the Tribunal by the Respondents (who carries the onus in this

regard)to show that the CCAW or the Second Respondent had the authority toremove the water from the pool of available water Onfact, the evidence was thatit did not have authority, onlyarecommendation function) or did recommend totheFirstRespondentthatit be removedeitheratthetimeofthedecisionoratany time since.

regard)

to show that the CCAW or the Second Respondent had the authority to

remove the water from the pool of available water On

fact, the evidence was that

it did not have authority, only

recommendation function) or did recommend to

it be removed

either

any time since

52.The only indicationofwhat any recommendation could have been, had it been given, is the content of correspondence between CCAW and the Appellants which the Appellants, being party to that train of correspondence says was not a final decisionasnegotiations were ongoing and which was not gainsaid by the Respondents.

The only indication

what any recommendation could have been, had it been given, is the content of correspondence between CCAW and the Appellants which the Appellants, being party to that train of correspondence says was not a final decision

negotiations were ongoing and which was not gainsaid by the Respondents.

53.In the absence of the Respondentsacquitting themselves of this onus it falls to be found that there was still722ha of water available at the time of the decision."

In the absence of the Respondents

acquitting themselves of this onus it falls to be found that there was still

ha of water available at the time of the decision."

(Appellant's Heads of Argument Page 16).

It is submitted that our Courts do not impose on administrative Tribunals such as the Water Tribunal the same duty and judicial

procedure of proof-taking. The concept "onus of proof" is not considered as being appropriate in a hearing by an administrative

Tribunal.

154.This principle finds application in a judgment that has been referred to and applied countless times.

This principle finds application in a judgment that has been referred to and applied countless times.

In Johannesburg Local Road Transportation Board v David Morton Transport (pty) Limited1976 (1) SA 887(A)903H-904Cthe Supreme Court of Appeal (as it is now known) Holmes J A stated the following with regard to onus of proof in proceedings before an administrative tribunal (own underlining and bold added for the sake of emphasis):

1976 (1) SA 887(A)903H-904C

"Theso-calledonusofproof.

so-called

proof.

In my view the expression 'onus of proof' is apt to bemisleading inregard to proceedings before a local board and the Commission. In civil proceedings that expression has a recognised connotation, and the onus is fixed by the pleadings, and the latter govern the evidence which is led.These considerations do notapply in proceedings before a local board and the Commission,which are notbound by rules of judicial procedures:see, with special reference to the Commission, the concluding paragraph under the heading: 'The constitution and function of local boards and the Commission° supra

misleading in

These considerations do not

apply in proceedings before a local board and the Commission,

which are not

bound by rules of judicial procedures:

In proceedings before those bodies sec. 13(1) of Act 39 of 1930requirespublication of an application. so that interested parties may objectRegs.4 and 5 provide how the application is to be made and published. Sec 13(3) of the Act prohibits the issue of a certificate

if, in the opinion of the board, existing facilities are satisfactory and sufficient If that prohibition is surmounted, there is a fist of factors which the board shall take into consideration; see sec 13{2).

requires

publication of an application. so that interested parties may object

Themostthatcanbesaidisthatan11RPlicationshouldplacebeforetheboard relevant facts in favour of his application; and an objector(e.g. an existing operatorwho Invokes sec. 13(3))should place before theboard relevant facts in support of his objection.After due hearing, the

11RPlication

should

board relevant facts in favour of his application; and an objector

(e.g. an existing operator

who Invokes sec. 13(3))

should place before the

board relevant facts in support of his objection.

After due hearing, the

local board comestoitsopinion."

local board comes

opinion."

In support of this judgment Wiegers in his "administrasiereg" (1984) sums up his view on the principle as follows: -

"Omdat interne beroep nie regspraak is nie, behoott diese/fde streng reels van bewyslewering wat gewoonlik in die geva/ van geregtelike verrigtinge deur die burgerlike howe geld, nie vereis te word nie.Gewoonlik geld die beginsel bvinteme beroep dat daar nie sprake van bewyslas in die forme!e sin van die wordis nie:die partye moet a/le feite voor die hersienende !iggaam le en die liggaam moet self besluit watter ootwegings die swaarste weeg".

Gewoonlik geld die beginsel bv

inteme beroep dat daar nie sprake van bewyslas in die forme!e sin van die word

is nie:

Theselegal principlesarebyanalogyalsoapplicable to the proceedings before the Water Tribunal.

legal principles

analogy

applicable to the proceedings before the Water Tribunal.

155.The Appellant in its papers stated that: -

The Appellant in its papers stated that: -

"the one concern is theavailability ofwater".

the one concern is the

availability of

water".

Although not conceding that there was no water available to grant the Appellant a licence, acknowledged the fact that there are many applications for limited water and that demand surpassed supply.

156.Insummary the refusal of the Appellant's application was correctly based exclusively on the lack of any allocable water that remained from the 4000 ha of irrigation made available in support of and the implementation of government policy imperatives given the finite

amount of irrigation made available for use in the Northern Cape.

summary the refusal of the Appellant's application was correctly based exclusively on the lack of any allocable water that remained from the 4000 ha of irrigation made available in support of and the implementation of government policy imperatives given the finite

amount of irrigation made available for use in the Northern Cape.

DECISION

157.Inviewof the findings madeherein basedon thevivavoceevidenceand written submissions and argument presented to the Tribunal, the decision is as follows: -

of the findings made

herein based

on the

and written submissions and argument presented to the Tribunal, the decision is as follows: -

(i)THE APPEAL ISDISMISSED.

THE APPEAL IS

DISMISSED.

DATEDATPRETORIAONTHIS29thOFMARCH2019

PRETORIA

F ZONDAGH:

(Panel Chair)

[1]A responsible authority must after considering:-(a) All applications received in response to the publication of a notice in terms of section 43(1) ;(b) Any further information or assessment obtained; and(c) The factors contemplated in section 27.1. A proposed allocation schedule must, subject to subsection 3 (own underlining) reflect the quantity of water to be-(a) ..............(b) ..............(c) Allocated to each of the Applicants to whom licenses ought to be Issued in order to redress the result of past_ racial and gender disaimination in accordance with the constitutional mandate for water reform........2. A responsible authority is under no obligation to allocate all available water" (own underlining)"46 Preliminary allocation schedule:-(!) after considering all objections received on the proposed allocation schedule, on or before the date specified in the notice contemplated in section 45(4) the responsible authority must prepare a preliminary allocation schedule and publish a notice in the Gazette(a) ...(b) Stating that an appeal In respect of any unsuccessful objection to the preliminary allocation schedule may be made in accordance with chapter 15(Chapter 15 establishes the Water Tribunal for the express purpose of hearing appeals against certain decisions made by a responsible authority. under theNational Water Act.)(2) If an appeal under section (l)(b) succeeds, the responsible authority must amend the preliminary allocation schedule as directed

by the Water Tribunal.

[1]A responsible authority must after considering:-

A responsible authority must after considering:-

(a) All applications received in response to the publication of a notice in terms of section 43(1) ;

(b) Any further information or assessment obtained; and

(c) The factors contemplated in section 27.

1. A proposed allocation schedule must, subject to subsection 3 (own underlining) reflect the quantity of water to be-

(a) ..............

(b) ..............

(c) Allocated to each of the Applicants to whom licenses ought to be Issued in order to redress the result of past_ racial and gender disaimination in accordance with the constitutional mandate for water reform........

2. A responsible authority is under no obligation to allocate all available water" (own underlining)

"46 Preliminary allocation schedule:-

(!) after considering all objections received on the proposed allocation schedule, on or before the date specified in the notice contemplated in section 45(4) the responsible authority must prepare a preliminary allocation schedule and publish a notice in the Gazette

(a) ...

(b) Stating that an appeal In respect of any unsuccessful objection to the preliminary allocation schedule may be made in accordance with chapter 15(Chapter 15 establishes the Water Tribunal for the express purpose of hearing appeals against certain decisions made by a responsible authority

. under theNational Water Act.)

National Water Act.)