Endangered Wildlife Trust and Another v Director-General (Acting) Department of Water and Sanitation and Another (1165/2023) [2025] ZASCA 69 (29 May 2025)

Case Note

The case is titled Endangered Wildlife Trust and Another v Director -General (Acting) Department of Water and Sanitation and Another. The neutral citation for the judgment is Endangered Wildlife Trust and Another v Director -General (Acting) Department of Water and Sanitation and Another (Case no 1165/2023) [2025] ZASCA 69. It was delivered on 29 May 2025, having been heard on 19 February 2025.

Reportability

This case is reportable because it involves a statutory appeal under section 149(1) of the National Water Act 36 of 1998 against a decision made by the Water Tribunal. Its significance lies in the examination of legal issues related solely to questions of law, particularly concerning the interpretation and application of statutory provisions in environmental and water use regulation. The judgment is further notable for its discussion regarding the meaning and effect of section 24 of the National Water Act, as well as its determination on allegations of bias in incorporating heads of argument into the High Court judgment.

Cases Cited

Endangered Wildlife Trust and Another v Director -General (Acting) Department of Water and Sanitation and Another (Case no 1165/2023) [2025] ZASCA 69

Legislation Cited

National Water Act 36 of 1998
Minerals and Petroleum Resources Development Act 28 of 2002

Rules of Court Cited

Section 149(1) of the National Water Act 36 of 1998

HEADNOTE

Summary

The case concerns an appeal brought by two non-profit environmental organisations—Endangered Wildlife Trust and the Federation for a Sustainable Environment—against the decision to grant a 15-year water use licence to ATHA-AFRICA VENTURES (PTY) LTD. The decision was originally made by the Acting Director-General of the Department of Water and Sanitation and later upheld by the Water Tribunal and the High Court. The Supreme Court of Appeal was called upon to determine, on a question of law, the meaning and effect of provisions within the National Water Act, specifically sections 24 and 149(1).

The judgment emphasizes that the sole question raised before the appellate court was one of statutory interpretation, leaving other aspects to questions of fact for prior proceedings. It underscores procedural fairness and the rigid requirements of the statutory framework applicable to water use licences under the National Water Act. This case is a significant example of the balancing act between environmental concerns and administrative processes in the context of natural resource management.

The decision ultimately dismisses the appeal and orders the appellants to bear costs, including those for multiple counsel, highlighting the courts’ intolerance of vexatious litigation and abuse of process. The ruling clarifies important legal principles regarding administrative discretion and procedural compliance.

Key Issues

The principal legal issues addressed in this case revolve around the interpretation of specific statutory provisions in the National Water Act. One issue is the proper understanding of section 24 and its implications for environmental licence applications and the subsequent administrative decision-making process. A further key issue involves whether the inclusion of the heads of argument in the High Court judgment created any reasonable apprehension of bias, an issue that was rejected by the court.

In addition, the case raises broader concerns regarding the procedural obligations imposed on both the regulatory authorities and applicants, particularly in relation to public participation processes and the submission of requisite documentation. The interplay between environmental safeguarding and the facilitation of industrial development forms a significant backdrop to the court’s reasoning.

Held

The Supreme Court of Appeal held that the appeal was confined to a question of law which required a precise interpretation of the National Water Act, particularly section 24. The Court dismissed the appeal, finding no evidence of bias in the procedural handling of the case. The court further determined that the remaining issues were matters of fact best dealt with by earlier proceedings and thus confirmed the dismissal of the appeal with costs, including the costs for two counsel where applicable.

THE FACTS

The factual narrative of the case begins with the acquisition of coal prospecting rights by the second respondent in 2011 under the Minerals and Petroleum Resources Development Act 28 of 2002, covering an extensive area outside Wakkerstroom in Mpumalanga. Following initial exploration and subsequent revisions of mining proposals, the second respondent applied for a water use licence under chapter 4 of the National Water Act. This application involved a multitude of environmental and technical studies conducted by various environmental assessment practitioners including WSP Environmental (Pty) Ltd, EcoPartners, and Scientific Aquatic Services (Pty) Ltd.

Over several years, the application was subject to numerous revisions based on feedback from governmental bodies and specific requirements regarding public participation. The Department of Water and Sanitation, through its Acting Director-General, approved the application on the basis that all formal requirements had been met. In parallel, the appellants, representing non-profit environmental interests, raised concerns regarding the licensing process and the environmental implications, eventually resorting to both tribunal and court proceedings to challenge the approval of the licence.

Throughout the process, the appellants commissioned independent expert studies and highlighted procedural irregularities, although they failed to provide reasons for the timing of these studies. The history of the case reflects a complex interplay between environmental assessment, mining regulatory requirements, and the broader implications of administrative decision-making under national legislation.

THE ISSUES

The central legal question that the court had to resolve was confined to determining the correct interpretation of statutory provisions within the National Water Act, particularly concerning section 24. The court was to decide if the application of this section appropriately guided the decision to grant the water use licence to the mining company. Questions arose as to whether procedural deficiencies or tardy expert submissions could impact the legal validity of the licence and whether any potential bias had affected the incorporation of heads of argument in the High Court’s judgment.

Another pertinent issue was the appropriate response to what the court considered vexatious litigation and the abuse of court process. This required an investigation into the conduct of the appellants and whether their actions unduly burdened the legal process, particularly in the context of environmental regulatory compliance. Ultimately, the issues before the court were strictly limited to questions of law, leaving many factual disputes untouched.

The determination of these issues was critical in affirming the integrity of the administrative process and in providing clarity for future cases involving environmental and water use regulation under the National Water Act.

ANALYSIS

The Court’s analysis focused primarily on a strict interpretation of the statutory framework provided by the National Water Act. The judges examined the meaning and effect of section 24 of the Act within the context of the water use licence application, noting that any issues beyond the scope of statutory interpretation were not procedurally comprehensive for their review. In doing so, the court made it clear that its review was limited to questions of law and did not extend to the appraisal of factual determinations made by lower tribunals and courts.

In its reasoning, the Court was meticulous regarding the sequencing of events and the correspondence between the Department of Water and Sanitation and the second respondent. The judges evaluated whether the procedural steps taken by the Department in requiring additional documentation and public participation met the statutory requirements set out in the National Water Act. The Court found that the procedures were correctly followed and that the substantive legal issues were decided in a manner consistent with the established legal framework.

Furthermore, the unanimous judgment dismissed any claims of bias related to the incorporation of heads of argument into the High Court’s judgment. The Court’s emphasis on an objective review of statutory interpretation reinforced the importance of adhering to the letter and spirit of the law. This thorough analysis ultimately led the Court to uphold the decisions made by lower courts and tribunals.

REMEDY

The remedy granted by the Supreme Court of Appeal was the dismissal of the appeal. The Court confirmed the earlier decision of the High Court, thereby upholding the water use licence granted to the second respondent. In addition, the Court imposed an order for costs to be paid by the appellants, including the costs incurred for two counsel where they were employed.

This decision on costs reflects the Court’s stance against vexatious litigation and abuse of court processes, ensuring that environmental organisations engaged in such actions bear the financial responsibility for the undue burden placed on the judicial system. The remedy thus reinforces both procedural and substantive accountability in the adjudication of statutory appeals.

The remedy also serves as a warning to future appellants that challenges must be firmly grounded in law rather than in procedural dissatisfaction or delayed expert assessments. The clarity provided by the Court’s decision is aimed at preserving the integrity of administrative decision-making within the framework of national water management law.

LEGAL PRINCIPLES

The case establishes several key legal principles. First, it reaffirms the importance of the correct statutory interpretation of the National Water Act, especially regarding sections 24 and 149(1). The decision clarifies that judicial review in such cases is confined to pure questions of law rather than mixed questions of fact.

The judgment further emphasizes procedural fairness in environmental regulatory decisions. It demonstrates that adherence to the statutory requirements for public participation and documentation is essential for validating administrative decisions regarding water use licences.

Finally, the case underscores that allegations of bias need to be supported by concrete evidence before affecting judicial outcomes. The uncompromised integrity of the judicial process in reviewing administrative decisions is essential for maintaining public confidence in the rule of law.