South African Association for Water Users Associations and Others v Minister of Water and Sanitation and Others; Lotter N.O and Others v Minister of Water and Sanitation and Others, Wiid and Others v Minister of Water and Sanitation and Others (71913/2018; 42072/2018; 90498/2018) [2020] ZAGPPHC 252 (19 June 2020)

South African Association for Water Users Associations and Others v Minister of Water and Sanitation and Others; Lotter N.O and Others v Minister of Water and Sanitation and Others, Wiid and Others v Minister of Water and Sanitation and Others (71913/2018; 42072/2018; 90498/2018) [2020] ZAGPPHC 252 (19 June 2020)

The court held that section 25 of the National Water Act does not permit the sale or trading of water use entitlements to third parties. While the wording 'another property within the vicinity' and 'other land' could, in context, refer to land owned by others, the Act does not authorise holders to sell or trade entitlements. Such practices are inconsistent with the Act's objectives of equitable access, redress, and public interest, as set out in section 2 and the Constitution. The court found that water trading would perpetuate inequality and privatise a national resource, contrary to legislative intent. The applications for declaratory orders were dismissed. However, the court granted...

Citation
[2020] ZAGPPHC 252
Parties
Applicant: South African Association for Water Users Associations; Applicant: Eagle’s Nest Investments 3 CC; Applicant: Thusano Empowerment Farm (Pty) Ltd; Applicant: Casper Jacobus Lotter N.O.; Applicant: Jacobus Andreas du Plessis N.O.; Applicant: Johannes Cornelius Heunis N.O.; Applicant: Francois Gerhardus Johannes Wiid; Applicant: Torqhoff Boerdery (Pty) Ltd; Applicant: Francois Gerhardus Johannes Wiid N.O.; Applicant: Reinette Jeppe Wiid N.O.; Applicant: Carel Jacobus van Pletzen N.O.; Respondent: Minister of Water and Sanitation; Respondent: Director General: Department of Water and Sanitation; Respondent: Sifiso Mkhize N.O.; Respondent: Deputy Director General: Water Sector Regulation; Respondent: Deputy Director General: Special Projects; Respondent: Minister of Environmental Affairs; Respondent: Britzkraal (Pty) Ltd; Respondent: Gabriel Petrus Viljoen N.O.; Respondent: Anton Andre Strydom N.O.; Respondent: Anton Stephanus Viljoen N.O.
Court
North Gauteng High Court, Pretoria
Jurisdiction
South Africa
Judgment Date
19 June 2020
Case Number
71913/2018; 42072/2018; 90498/2018
Procedural Posture
Review Application / Full Bench Hearing; Judgment Delivered
Outcome
Applications for declaratory orders and review dismissed; exemption from internal remedies granted for declaratory order applications only; costs awarded as specified.
Judges
SP Mothle, NM Mavundla, N Ranchod
Legal Topics
National Water Act, Water Use Entitlement, Declaratory Order, Exhaustion of Internal Remedies, Judicial Review, Promotion of Administrative Justice Act
Administrative Law Environmental Law Land and Property National Water Act Water Use Entitlement Declaratory Order Exhaustion of Internal Remedies Judicial Review +1 more

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Parties

South African Association for Water Users Associations

Applicant

Eagle’s Nest Investments 3 CC

Applicant

Thusano Empowerment Farm (Pty) Ltd

Applicant

Casper Jacobus Lotter N.O.

Applicant

Jacobus Andreas du Plessis N.O.

Applicant

Johannes Cornelius Heunis N.O.

Applicant

Francois Gerhardus Johannes Wiid

Applicant

Torqhoff Boerdery (Pty) Ltd

Applicant

Francois Gerhardus Johannes Wiid N.O.

Applicant

Reinette Jeppe Wiid N.O.

Applicant

Carel Jacobus van Pletzen N.O.

Applicant

Minister of Water and Sanitation

Respondent

Director General: Department of Water and Sanitation

Respondent

Sifiso Mkhize N.O.

Respondent

Deputy Director General: Water Sector Regulation

Respondent

Deputy Director General: Special Projects

Respondent

Minister of Environmental Affairs

Respondent

Britzkraal (Pty) Ltd

Respondent

Gabriel Petrus Viljoen N.O.

Respondent

Anton Andre Strydom N.O.

Respondent

Anton Stephanus Viljoen N.O.

Respondent

Procedural Posture

Review Application / Full Bench Hearing; Judgment Delivered

Legal Issues

  1. 1 Whether section 25 of the National Water Act permits the transfer or sale of water use entitlements to third parties.
  2. 2 Whether the words 'another property within the vicinity' and 'other land' in section 25 refer to land owned by third parties.
  3. 3 Whether water trading in entitlements is lawful under the Act.

Ratio Decidendi

The court held that section 25 of the National Water Act does not permit the sale or trading of water use entitlements to third parties. While the wording 'another property within the vicinity' and 'other land' could, in context, refer to land owned by others, the Act does not authorise holders to sell or trade entitlements. Such practices are inconsistent with the Act's objectives of equitable access, redress, and public interest, as set out in section 2 and the Constitution. The court found that water trading would perpetuate inequality and privatise a national resource, contrary to legislative intent. The applications for declaratory orders were dismissed. However, the court granted...

Court Disposition

Applications for declaratory orders and review dismissed; exemption from internal remedies granted for declaratory order applications only; costs awarded as specified.

Orders

  • The application for a declaratory order is dismissed with costs, including the costs of respondents’ two counsel.
  • The application for exemption in terms of section 7 of PAJA is granted, only in so far as it relates to the application for the declaratory order. The respondents are ordered to pay fifty percent (50%) of the costs, including the applicants’ costs of two counsel.