South Africa Case Law

Forestry South Africa v Minister of Human Settlements, Water and Sanitation and Others (777/2022) and Minister of Human Settlements, Water and Sanitation and Others v Forestry South Africa (824/2022)

Forestry South Africa v Minister of Human Settlements, Water and Sanitation and Others (777/2022) and Minister of Human Settlements, Water and Sanitation and Others v Forestry South Africa (824/2022) [2023] ZASCA 153; [2024] 1 All SA 22 (SCA); 2024 (3) SA 400 (SCA) (15 November 2023)

Court

Supreme Court of Appeal

Case number

777/2022; 824/2022

Judges

Mocumie JA, Mothle JA, Weiner JA, Windell AJA, Unterhalter AJA

The Supreme Court of Appeal held that the National Water Act recognises three distinct categories of existing lawful water use: authorised use, stream flow reduction activity, and controlled activity. Flow activity, specifically commercial afforestation, is not subject to the requirement of authorisation under prior law, but is based on property rights unless restricted by conditions or obligations in force at the commencement of the Act. Verification under s 35 is confined to determining lawfulness and extent as defined in s 32, and for flow activity, extent is measured by land use, not wate…

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• National Water Act
• Statutory Interpretation
• Existing Lawful Water Use
• Stream Flow Reduction Activity
• Verification Of Water Use
• Afforestation Regulation

Ramaliane Trust v The Department of Water and Sanitation (WT03/19/LMP)

Ramaliane Trust v The Department of Water and Sanitation (WT03/19/LMP) [2022] ZAWT 2 (14 July 2022)

Court

Water Tribunal

Case number

WT03/19/LMP

Judge

T. Murombo

The Water Tribunal dismissed Ramaliane Trust’s appeal against refusal of a water use licence, holding the catchment was stressed and the refusal left existing lawful uses intact.

• Water Use Licensing
• National Water Act
• Environmental Authorisation
• Catchment Management
• Public Participation
• Existing Lawful Water Use

Michden Family Trust v The Acting Provincial Head: Mpumalanga Department of Water And Sanitation (WT05/17/MP)

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

Court

Water Tribunal

Case number

WT05/17/MP

Judge

L Mbanjwa

The Water Tribunal set aside a directive against a farming trust, finding its water use had already been verified as lawful and that the Act did not require naming a specific source.

• National Water Act
• Existing Lawful Water Use
• Verification Of Water Use
• Administrative Action
• Rectification Of Contravention
• National-water-act

Ramah Farming v Great Fish River Water Users Association and Others (2614/2019)

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

Court

Eastern Cape High Court, Grahamstown

Case number

2614/2019

Judge

R E Griffiths

The court held that the National Water Act does not permit the disputed retention and sale of water use entitlements as done here, and granted declaratory relief.

• National Water Act
• Existing Lawful Water Use
• Transfer Of Water Use Entitlements
• Statutory Interpretation
• Declaratory Relief
• National-water-act

Tonkin NO v Acting Director General of Department of Water Affairs and Sanitation and Another (WT03/10/GP)

Tonkin NO v Acting Director General of Department of Water Affairs and Sanitation and Another (WT03/10/GP) [2019] ZAWT 1 (28 May 2019)

Court

Water Tribunal

Case number

WT03/10/GP

Judges

F Zondagh, T Murombo

The Water Tribunal set aside a directive issued under the National Water Act, holding it was invalid because it disrupted the section 35 verification process.

• Existing Lawful Water Use
• National Water Act
• Procedural Fairness
• Promotion Of Administrative Justice Act
• Administrative Action
• Review Of Directive

Witzenberg Properties (Pty) Ltd v Bokveldskloof Boerdery (Pty) Ltd and Another (20765/2017)

Witzenberg Properties (Pty) Ltd v Bokveldskloof Boerdery (Pty) Ltd and Another (20765/2017) [2018] ZAWCHC 83; 2018 (6) SA 307 (WCC) (28 June 2018)

Court

Western Cape High Court, Cape Town

Case number

20765/2017

Judge

J Cloete

High Court interdict case under the National Water Act dismissed for lack of standing and proof of actual or apprehended harm.

• National Water Act
• Existing Lawful Water Use
• Interdictory Relief
• Locus Standi
• Harm Requirement
• National-water-act

Schutte v Five Lakes Farm CC and Others (18104/2014)

Schutte v Five Lakes Farm CC and Others (18104/2014) [2018] ZAWCHC 132 (15 February 2018)

Court

Western Cape High Court, Cape Town

Case number

18104/2014

Judge

Van Staden

The court found that the applicant established, on the evidence of Schutte, Kleynhans, and Oosthuizen, that water was extracted from the Duiwe River and led across Portion 211 to Portion 210 during the qualifying period, and that this use was authorised under the previous Water Act. The court held that it was not necessary for the applicant to prove the exact volume of water used, as the extent of an existing lawful water use is not limited to the specific volume extracted during the qualifying period. The court accepted the reliability of the applicant's witnesses over the respondent's, noti…

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• Praedial Servitude
• National Water Act
• Existing Lawful Water Use
• Onus Of Proof
• Compensation For Servitude

Smit v Provincial Head: Free State Region Department of Water and Sanitation and Another (W002/16/FS)

Smit v Provincial Head: Free State Region Department of Water and Sanitation and Another (W002/16/FS) [2017] ZAWT 7 (15 November 2017)

Court

Water Tribunal

Case number

W002/16/FS

Judges

F Zondagh, M Nkomo

The Water Tribunal upheld Deon Smit’s appeal, set aside a Section 35(4) determination, and fixed a higher existing lawful water use for irrigation from the Kraai River and dams.

• National Water Act
• Existing Lawful Water Use
• Water Use Verification
• Administrative Appeal
• Irrigation Rights
• National-water-act

Du Preez and Others v Viljoen NO and Others (A174/2016)

Du Preez and Others v Viljoen NO and Others (A174/2016) [2017] ZAWCHC 113 (11 October 2017)

Court

Western Cape High Court, Cape Town

Case number

A174/2016

Judges

A.G. Binns-Ward, D.V. Dlodlo, C.M. Fortuin

The court found that the probabilities strongly favoured the respondents' assertion that the upper furrow had not been used during the statutory window period required by the National Water Act. Therefore, the appellants' current abstraction of water via the furrow did not qualify as an existing lawful water use and was unlawful absent a licence. The respondents had a prima facie right to the water flowing down the Watervalstroom, and the diversion by the appellants caused irreparable harm by depriving them of water needed for irrigation. The balance of convenience favoured the respondents, a…

Source excerpt

• National Water Act
• Interim Interdict
• Existing Lawful Water Use
• Riparian Rights
• Servitude Of Aqueduct
• Urgent Application

Geldenhuys and Others v Cillie and Others (6928/2005)

Geldenhuys and Others v Cillie and Others (6928/2005) [2017] ZAWCHC 61 (30 May 2017)

Court

Western Cape High Court, Cape Town

Case number

6928/2005

Judge

Binns-Ward

The court rejected the Minister’s objections to declaratory relief over historic water-use rights, holding that the National Water Act did not oust jurisdiction.

• National Water Act
• Existing Lawful Water Use
• Declaratory Relief
• Water Rights
• Riparian Rights
• National-water-act