South African Association for Water Users Association and Others v Minister of Water and Sanitation and Others (71913/2018; 42072/2018; 90498/2018) [2020] ZAGPPHC 364 (12 August 2020)

REPUBLIC OF SOUTH AFRICA

IN THE HIGH COURT OF SOUTH AFRICA

GAUTENG DIVISION, PRETORIA

(1) REPORTABLE: NO

(2) OF INTEREST TO OTHER JUDGES: NO

(3) REVISED.

Case No: 71913/2018

In the matter between:

SOUTH AFRICAN ASSOCIATION

First Applicant

FOR WATER USERS ASSOCIATIONS

EAGLE’S NEST INVESTMENTS 3 CC

Second Applicant

THUSANO EMPOWERMENT FARM (PTY) LTD

Third Applicant

and

MINISTER OF WATER AND SANITATION

First Respondent

DIRECTOR GENERAL: DEPARTMENT OF WATER Second Respondent

AND SANITATION

SIFISO MKHIZE N.O.

Third Respondent

DEPUTY DIRECTOR GENERAL: WATER SECTOR Fourth Respondent

REGULATION, DEPARTMENT OF WATER AND

SANITATION

DEPUTY DIRECTOR GENERAL: SPECIAL PROJECTS

Fifth Respondent

DEPARTMENT OF WATER AND SANITATION

Case No: 42072/2018

CASPER JACOBUS LOTTER N.O.

First Applicant

JACOBUS ANDREAS DU PLESSIS N.O. Second Applicant

JOHANNES CORNELIUS HEUNIS N.O.

Third Applicant

(THE TRUSTEES FOR THE TIME BEING OF THE DOORNKRAAL

BESIGHEIDTRUST IT844/2003 (E))

THE MINISTER OF WATER AND SANITATION

First Respondent

THE MINISTER OF ENVIRONMENTAL AFFAIRS

Second Respondent

DIRECTOR GENERAL: DEPARTMENT OF WATER AND

Third Respondent

BRITZKRAAL (PTY) LTD

Fourth Respondent

Case No: 90498/2018

FRANCOIS GERHARDUS JOHANNES WIID

First Applicant

TORQHOFF BOERDERY (PTY) LTD

Second Applicant

FRANCOIS GERHARDUS JOHANNES WIID N.O.

Third Applicant

REINETTE JEPPE WIID N.O.

Fourth Respondent

CAREL JACOBUS VAN PLETZEN N.O.

Fifth Applicant

(THE THIRD, FOURTH AND FIFTH APPLICANTS BEING

TRUSTEES FOR THE TIME BEING OF DE KALK TRUST

IT51/2008/K)

THE MINISTER OF WATER AND SANITATION

First Respondent

THE MINISTER OF WATER AND ENVIRONMENTAL

Second Respondent

AFFAIRS

THE DIRECTOR GENERAL: DEPARTMENT OF

Third Respondent

WATER AND SANITATION

GABRIEL PETRUS VILJOEN N.O.

Fourth Respondent

ANTON ANDRE STRYDOM N.O.

Fifth Respondent

ANTON STEPHANUS VILJOEN N.O.

Sixth Respondent

(THE FOURTH, FIFTH AND SIXTH RESPONDENTS

ARE THE TRUSTEES FOR THE TIME BEING OF THE

GP VILJOEN TRUST IT3917/94)

Delivered. This judgment was handed down electronically by circulation to the parties’ representatives by email and will be released on SAFLII. The date and time for hand down is deemed to be 10h00 12th August 2020.

JUDGMENT

RANCHOD J:

[1] Pursuant to handing down judgment in the above matters dismissing their applications with costs after hearing the matters together, the applicants in all three matters have applied for leave to appeal the judgment and orders of this Court.

[2] In view of the Covid-19 pandemic, it was determined that the applications will be determined on the papers unless there were cogent reasons for oral hearings to be held. The parties have made their submissions in writing.

[3] The main reason the applicants seek leave to appeal, they submit, is that this Court erred in its conclusion on the correct interpretation of section 25 of the National Water Act No. 36 of 1998 (the Act) and therefore there are reasonable prospects that another court will come to a different conclusion, more so, as there are conflicting judgments on this issue. It therefore raises a substantial and important point of law. It is also of considerable importance not only to the parties but also to the public at large.

[4] Section 17(1) of the Superior Courts Act 10 of 2013 provides as follows:

“Leave to appeal.- (1) Leave to appeal may only be given where the judge or judges concerned are of the opinion that-

(a) (i) the appeal would have a reasonable prospect of success; or

(ii) there is some other compelling reason why the appeal should be heard, including conflicting judgments on the matter under consideration;

(b) The decision sought on appeal does not fall within the ambit of section 16(2)(a); and

(c) Where the decision sought to be appealed does not dispose of all the issues in the case, the appeal would lead to a just and prompt resolution of the real issues between the parties.”

[5] It is common cause that the present matter does not fall within the ambit of section 16(2)(a) and will not dispose of all the issues in the case, as contemplated in sections 17(1)(b) and (c).

[6] The question in the present application for leave to appeal is thus whether the Applicants have shown that the appeal would have reasonable prospects of success or there is some other compelling reason (including conflicting judgments) why the appeal should be heard. Since subsections (i) and (ii) of section 17(1)(a) are separated by ‘or’, it is clear that if either of these two grounds are shown, leave to appeal may be granted.

[7] Although the respondents oppose the application on the basis that the appeal does not have reasonable prospects of success, they concede that the correct interpretation of s25 of the Act does raise a substantial and important point of law and it is of considerable importance not only to the parties but also to the public at large. Furthermore, there are conflicting decisions on the correct interpretation of s25 of the Act.

[8] Having considered the submissions of the parties this Court is of the view that there are compelling reasons why leave to appeal to the Supreme Court of Appeal should be granted in that the matter does raise a substantial and important point of law; it is of considerable importance not only to the parties but also to the public at large and the fact that there are conflicting decisions on the correct interpretation of s25 of the Act.

[9] In the circumstances, leave to appeal to the Supreme Court of Appeal is granted with costs of the application to be costs in the appeal.

Judge N Ranchod

Judge of the High Court

Gauteng Division, Pretoria

I agree

Judge NM Mavundla

Judge of the High Court

Judge SP Mothle