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[2017] ZAWCHC 61
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Geldenhuys and Others v Cillie and Others (6928/2005) [2017] ZAWCHC 61 (30 May 2017)
Republic of South Africa
IN THE HIGH COURT OF SOUTH AFRICA
(WESTERN CAPE DIVISION, CAPE TOWN)
Before: The Hon. Mr Justice Binns-Ward
Hearing: 6 and 7 March 2017
Judgment: 30 May 2017
Case No. 6928/2005
In the matter between:
MATTHEUS LOURENS
GELDENHUYS
Applicant
and
others
Second
and Third Applicants
and
PIETER ROSSOUW
CILLIE
First
Respondent
and
others
Second
to Twenty-Second Respondents
JUDGMENT
BINNS-WARD J:
[1]
The applicants, who are
the owners of rural land in the area near Ceres in the Western Cape
Province, have applied for an order
declaring that they, and the
seventeenth and eighteenth respondents in the current case, are
entitled, for their exclusive use,
as successors in title to the
respondents in Water Court case no. 351/1957, to so much of the
water that is diverted into
the Inverdoorn Canal via the Spek River -
and - Valschgat diversion headworks as had been awarded to their
predecessors in title
in terms of the order made in the Water Court
case.
[1]
They also sought certain other relief, including a
prohibitory interdict against the first to seventh respondents
forbidding the latter from interfering with the water that is
diverted into the Inverdoorn Canal allegedly for the exclusive use
of
themselves and the seventeenth and eighteenth respondents pursuant to
the Water Court’s order.
[2]
The
Water Court’s order was made in chambers at Cape Town on 19
January 1960 (per Beyers JP). It endorsed and adopted
the terms
of a settlement agreement that had been entered into by the litigants
in that case. The matter before the Water
Court had concerned
an application for an order declaring that the respondents in that
matter were not entitled to divert or cause
to be diverted any water
out of the Spek River Kloof and the Valsgat Kloof for use on their
properties. The water in issue
was diverted into a channel
constructed in the late nineteenth century between the Spek and
Valschgat river courses and then beyond
the Valschgat River to the
non-riparian lands of the so-called ‘Inverdoorn farmers’,
being the properties currently
owned by the applicants and the
seventeenth and eighteenth respondents. The channel between the
two rivers has been referred
to in the applicants’ counsel’s
heads of argument (and in the judgment of Harms ADP in
Hexvallei
Besproeiingsraad en ’n Ander v Geldenhuys NO en Andere
[2008] ZASCA 69
;
2009 (1) SA 547
(SCA)) as ‘the Spek River Canal’.
The channel to the applicants’ lands beyond the Valschgat River
is commonly
known as ‘the Inverdoorn Canal’.
[3]
The settlement
agreement provided for the respondents in the Water Court case to
enjoy the right, annually, to stipulated quantities
of water diverted
into the Inverdoorn Canal from the Spek and Valschgat Rivers.
The settlement agreement further provided
that ‘
Hierdie
ooreenkoms sal op generlei wyse die oewerregte van die eienaar/s van
die plaas “Die Vlakte” inkort of raak nie
en die
hoeveelhede water in paragraaf (1) hierbo genome sluit nie in enige
water waarop die eienaar/s van gemelde plaas geregtig
is om as
oewereienaars op gemelde plaas te gebruik nie
’.
[2]
The agreement provided that the respondents in that litigation would,
at their expense, construct on both rivers the diversion
headworks
that were necessary to implement the agreed arrangement. The
works were to be constructed in accordance with plans
to be approved
by an engineer appointed by the applicants in that matter.
Various issues have arisen out of the character
of the works that
were subsequently constructed but, by virtue of the separation of
issues to be described presently, it is not
necessary to go into them
at this stage.
[4]
The
current proceedings were instituted because it is alleged that water
is being extracted, by or at the instance of the first
to seventh
respondents, at sluices on the canal near the diversion works on the
Valschgat River in breach of the terms of the Water
Court order as
subsequently implemented by way of the diversion works and the
associated sluices. The applicants allege that
the effect has
been to significantly reduce the flow of water to the further reaches
of the Inverdoorn Canal, with the result that
they have for many
years now (since 1997, when the Vlaktedam - also known as the Topdam
- was built to increase the storage capacity
of the water diverted at
the aforementioned sluices) been receiving only a small fraction of
the volume of water that they used
to receive, and to which they are
allegedly entitled.
[5]
The
law regulating water resources in this country has been fundamentally
reformed in the time that has intervened since the making
of the
Water Court order on which the application is founded. The
reform is manifested in the provisions of the
National Water Act 36
of 1998
, which (save for certain provisions that were brought into
operation later) came into effect on 1 October 1998.
[6]
The
preamble to the Act recognises that ‘water is a natural
resource that belongs to all people’ and acknowledges ‘the
National Government’s overall responsibility for and authority
over the nation’s water resources and their use, including
the
equitable allocation of water for beneficial use [and] the
redistribution of water’. The statute abolished the
dichotomous characterisation of water under the earlier legislation
as ‘public water’ or ‘private water’.
Section 3
of the Act appoints the minister in the national cabinet
responsible for water affairs as the functionary ultimately
responsible
for the administration of the national government’s
role as ‘the public trustee of the nation’s water
resources’.
Subsection (4) provides that ‘The
National Government, acting through the Minister, has the power to
regulate the use,
flow and control of all water in the Republic’.
The Minister of Water and Sanitation (cited in the papers as the
‘Minister
of Water Affairs and Forestry’) is the
sixteenth respondent in the application.
[7]
The
Minister delivered an affidavit deposed to on her behalf by the
Deputy Director: Catchment Management Strategy and Water Resource
Planning for the Berg-Olifants proto Catchment Management Agency, to
whom, for convenience, I shall refer simply as the Deputy
Director.
The Deputy Director averred that the Minister opposed the relief
sought by the applicants on a number of grounds.
Only three of
them have been persisted with.
[8]
The first, which
appears to bear on the exercise of the court’s discretionary
power in respect of declaratory relief, is that
the applicants should
rather have requested the Minister to verify the lawfulness of the
parties’ existing water uses in
terms of
s 35
of the
Act.
[3]
It was alleged in that regard that an exercise by the Department of
verifying the existing lawful water uses of the first
to seventh
respondents was in any event currently underway and about half-way
completed at this stage, and that the verification
of the uses of the
applicants and the seventeenth and eighteenth respondents was also
‘in progress’. The Deputy
Director averred that the
Department intended to recommend that the Minister should issue the
first to seventh respondents with
notices in terms of
s 35(1).
The effect of a notice in terms of
s 35
is that the recipient is
obliged to apply for the verification of his or her existing water
use. Should the recipient fail
to do so within the prescribed
time, he or she is thereupon prohibited from exercising the water use
until an application for verification
in compliance with the notice
has been made.
[9]
The
applicants’ response to the Minister’s contentions is
that the water in the Inverdoorn Canal is not susceptible
to
regulation in terms of
s 35
and that the ‘existing water
use’ within the meaning of the term in the legislation takes
place when the water is diverted
from the rivers at the diversion
works, and not when it is extracted from the canal.
[10]
The second ground of
opposition is that any rights to water that might have been conferred
by the Water Court’s order were
cut across by the
determinations made for the purposes of the allocation of public
water within the Sanddrift Water Control Area
in terms of Government
Notice 1801 of 1981 issued in terms of the then subsisting Water Act
54 of 1956 (the statutory predecessor
to the
National Water Act,
1998
). The Minister contends that ‘whatever rights to
water the owners of the properties referred to in the annexure to
Notice 1801 of 1981 might have had under the 1960 order were
effectively extinguished by that notice’.
[4]
[11]
The
third ground of opposition by the Department is that the provisions
of the Water Court order have in any event been overtaken
by the Act;
more particularly, by reason of the definition of ‘existing
lawful water use’ in terms of s 32 of
the Act, which, so
it was contended, limited the applicants to the water use that had
taken place within the two years immediately
preceding the
commencement of the Act. Section 32 provides, insofar as
currently relevant, that ‘[a]n existing
lawful water use means
a water use- (a) which has taken place at any time during a
period of two years immediately before
the date of commencement of
this Act and which- (i) was authorised by or under any law which
was in force immediately before
the date of commencement of this
Act’.
[12]
It seemed to me that if
there were merit in any of these points of opposition raised by the
Minister they would be dispositive of
the application, and that it
would then not be necessary to engage with the voluminous paper
generated in respect of the disputes
between the applicants and the
first to seventh respondents. I therefore directed, without
opposition from any of the parties,
that the contentions advanced by
the Minister should be argued and determined before the remaining
issues in the case. In
the circumstances counsel for the first
to seventh respondents took no part in the hearing on the separated
issues.
[5]
[13]
Before I turn to
consider the Department’s aforementioned grounds of opposition,
however, it is necessary first to address
an issue raised by the
Minister’s counsel in oral argument. Mr
Duminy
SC, who appeared
for the Minister, stated during his address to the court that the
sixteenth respondent’s real concern was
that it should be seen
to be clear that any determination of the application by the court
could not fetter the subsequent exercise
by the Minister of any of
her powers under the Act. Mr
Duminy
advised in this
connection that the Department had ‘no legal interest in the
outcome of the (private) dispute between the
applicants and the
non-institutional respondents[
[6]
]
regarding the correct construction of the settlement agreement
incorporated in the 1960 order, or to the extent to which their
rights
inter se
were affected or amended by the design of the water works in the Spek
river and the Valschgat river’.
[14]
That
sounded to me, in a sense, like an informally advanced special
defence of misjoinder. If it was, it was misconceived
in my
view.
[15]
Whilst
there is no doubt that the court cannot competently negate or
frustrate the Minister’s powers and functions in terms
of the
Act, there is also no basis to overlook the reality that those powers
fall to be exercised with proper regard to the applicable
legal
context. So, for example, when it comes to whether a particular
water use qualifies as an ‘existing lawful water
use’
within the meaning of s 32(1)(a)(i) of the Act, which provides –
An existing lawful water use means
a water use-
(a)
which has taken place at any time during a period of two years
immediately before the date of commencement of this Act and which-
(i) was authorised by or under any
law which was in force immediately before the date of commencement of
this Act,
it is pre-eminently within the
court’s jurisdiction, should it be pertinent to do so in the
context of an unresolved dispute,
to pronounce upon the question
whether a particular water use was indeed ‘
authorised
by or under any law’. The postulated question, in respect
of which the Minister clearly has a direct and
substantive legal
interest, falls to be answered by ‘the application of law’
within the meaning of s 34 of the
Constitution
Nothing
in the Act to which my attention has been drawn supports the notion
that the court’s jurisdiction has been ousted
in favour of some
other tribunal or forum. The fact that the Department would be
bound by the court’s determination
would not, however, fetter
the Minister’s authority under the Act to regulate water use.
It would not, for example,
limit the Minister’s power, in the
context of a subsequent determination in terms of s 35 of the
Act, to limit the existing
water use,
[7]
nor would it impinge on the responsible authority’s power to
subsequently require the water user to apply for a licence –
something that might result in the alteration, or even extinction, of
the existing water use.
[16]
I also do not agree
with the contention advanced by the Minister’s counsel that the
issue in the current case would only become
cognisable by this court
if it were brought to it on appeal from the Water Tribunal in terms
of s 149 of the Act. An
appeal in terms of s 149 can
arise only as the culmination of a process in terms of the Act that
would afford the Tribunal
jurisdiction to make a determinative
decision. A determination by the responsible authority in terms
of s 35 would be
an example. In the current case, however,
none of the parties has, at this stage, even been required to submit
an application
for such a determination. No relevant process in
terms of the Act, which arguably might entail even the deferment of
the
court’s jurisdiction, has yet been set in train. The
argument therefore finds no traction on the facts, and there is
nothing in the Act to support it. It is well-established that
‘[o]uster of jurisdiction occurs only when that conclusion
flows by necessary implication from the statutory provisions and then
only to the extent indicated by such implication’.
[8]
[17]
Counsel’s
argument, moreover, does not find support in any jurisprudential
precedent. On the contrary, the existing
jurisprudence tends to
support my conclusion that it is misplaced. The declaratory
order sought in the current matter has
been applied for to confirm
the legal foundation for the interdictory relief that the applicants
seek against the first to seventh
respondents. The interdictory
relief is analogous in its character to the sort of relief that was
in issue in the
Hexvallei
Besproeiingsraad
case mentioned earlier.
[9]
That matter concerned the enforcement by the applicant in that case
of an existing lawful water use (within the meaning of
the National
Water Act) arising out of the terms of the very same Water Court
order that is foundational to the relief sought in
the current case.
It is evident from the judgment that the appeal court was fully alert
to the fundamental change in the
applicable regulatory regime wrought
by the
National Water Act. It
is implicit in the court’s
approach to the determination of the case that it did not find
anything in the reformed legislative
framework that ousted the
court’s jurisdiction to deal at first instance with disputes
concerning the ambit of existing lawful
water uses under the new
Act. (The Minister was the fifth respondent in
Hexvallei
Besproeiingsraad
.)
[18]
Having regard to the
Minister’s statutory role as the regulator of the use, flow and
control of all water in the Republic,
[10]
it was clear in my judgment that she had a sufficiently real and
direct legal interest in the determinations sought in the current
proceedings to have been joined as a necessary party. That that
is so has, if anything, been confirmed by how the matter
has
developed, more particularly in respect of the applicants’
response to the Minister’s contentions; especially in
regard to
what they contend is the nature of the ‘existing lawful water
use’ in issue, namely diversion of the water
at the diversion
headworks on the rivers rather than abstraction of the diverted water
from the canal. Furthermore, the Minister’s
second ground
of opposition identified above
[11]
unambiguously raises a legal question, the determination of which by
the court is binding, not only on the parties to what has
been
labelled as the ‘private dispute’ between the
non-institutional parties, but also on the Minister.
[19]
Reverting then to the Department’s
three aforementioned grounds of opposition. It is convenient to
commence the discussion
of them by identifying the provisions of the
Act that appear to be most pertinent to the arguments that are
involved.
[20]
Section 4 of the Act regulates the
entitlement to water use. It provides:
Entitlement to water use
(1) A person may use water in or from a water resource
for purposes such as reasonable domestic use, domestic gardening,
animal
watering, fire fighting and recreational use, as set out in
Schedule 1.
(2) A person may continue with an existing lawful water
use in accordance with section 34.
(3) A person may use water in terms of a general
authorisation or licence under this Act.
(4) Any entitlement granted to a person by or under this
Act replaces any right to use water which that person might otherwise
have
been able to enjoy or enforce under any other law-
(a)
to take or use water;
(b)
to obstruct or divert a flow of water;
(c)
to affect the quality of any water;
(d)
to receive any particular flow of water;
(e)
to receive a flow of water of any particular quality; or
(f)
to construct, operate or maintain any waterwork.
[21]
In
terms of s 22(1) of the Act, a person may only use water –
(a) without a licence-
(i) if that water use is permissible under Schedule 1;
(ii) if that water use is permissible as a continuation
of an existing lawful use; or
(iii) if that water use is permissible in terms of a
general authorisation issued under section 39;
(b) if the water use is authorised by a licence under
this Act; or
(c) if the responsible authority has dispensed with a
licence requirement under subsection (3).
[22]
The
water use in issue in these proceedings does not fall under any of
the categories of use listed in Schedule 1 to the Act.
There
has been no suggestion that the water use in issue is or requires to
be authorised by a licence or that it has been permitted
in terms of
a general authorisation in terms of s 39. It is evident
that the alleged entitlement by the applicants to,
and the use by
first to seventh respondents of, water in the Inverdoorn Canal
purport to be on the basis of a continuation of respective
existing
lawful uses.
[23]
As mentioned, s 32 of
the Act defines what is meant by ‘existing lawful water
use’.
[12]
Section 34 authorises any person or that person’s successor in
title to continue with an existing lawful water use,
subject to any
existing obligations or conditions attached to such use, and subject
also to its replacement by a licence in terms
of the Act, or any
limitation or prohibition by or under the Act.
[24]
Section 35 of the Act provides:
Verification of existing water uses
(1) The responsible authority may, in order to verify
the lawfulness or extent of an existing water use, by written notice
require
any person claiming an entitlement to that water use to apply
for a verification of that use.
(2) A notice under subsection (1) must-
(a) have a suitable application form annexed to it;
(b) specify a date before which the application must be
submitted;
(c) inform the person concerned that any entitlement to
continue with the water use may lapse if an application is not made
on or
before the specified date; and
(d) be delivered personally or sent by registered mail
to the person concerned.
(3) A responsible authority-
(a) may require the applicant, at the applicant's
expense, to obtain and provide it with other information, in addition
to the information
contained in the application;
(b) may conduct its own investigation into the veracity
and the lawfulness of the water use in question;
(c) may invite written comments from any person who has
an interest in the matter; and
(d) must afford the applicant an opportunity to make
representations on any aspect of the application.
(4) A responsible authority may determine the extent and
lawfulness of a water use pursuant to an application under this
section,
and such determination limits the extent of any existing
lawful water use contemplated in section 32 (1).
(5) No person who has been required to apply for
verification under subsection (1) in respect of an existing lawful
water use may
exercise that water use-
(a) after the closing date specified in the notice, if
that person has not applied for verification; or
(b) after the verification application has been refused,
if that person applied for verification.
(6) A responsible authority may, for good reason,
condone a late application and charge a reasonable additional fee for
processing
the late application.
Any determination made in terms of
s 35 is, in terms of s 148 of the Act, subject to appeal to the
Water Tribunal. The
Water Tribunal is comprised of persons with
knowledge in law, engineering, water resource management or related
fields. The
members of the Tribunal are appointed on the
recommendation of the Judicial Service Commission and the Water
Research Commission.
The decisions of the Tribunal are amenable
to further appeal on points of law to the High Court,
[13]
and also, if appropriate, to judicial review in terms of the
Promotion of Administrative Justice Act 3 of 2000
.
[14]
[25]
In
support of the first of the aforementioned grounds of opposition, the
Deputy Director has averred that it would be more appropriate
for the
dispute between the applicants and the first to seventh respondents
to be determined in terms of the Act; that is initially,
at least, by
persons with appropriate technical expertise in water matters, rather
than by a court as port of first call.
[26]
In principle there is
much to be said in favour of the Department’s contention.
Whilst the terms of the Water Court’s
order and the basis of
its subsequent implementation by the parties to that litigation
informs the content of the applicants’
alleged existing lawful
water use and the question whether the first to seventh respondents’
abstraction of water from the
Inverdoorn Canal infringes the
applicants’ rights are in the main questions of law that the
courts are best qualified to
determine, a verification process in
terms of the Act would facilitate their determination with regard to
the present day objects
of the regulatory legislation. Mindful
that any determination by the court might shortly be overtaken by an
administrative
decision in terms of the Act, considerations of
pragmatism and efficiency militate in favour of the administrative
process as the
more sensible route. The process of verification
in terms of s 35 is inquisitorial and, as alluded to earlier, it
may
result in a limitation – and therefore effectively an
amendment – of existing use rights in furtherance of the
objects
of the legislation, or, to the same end, prompt the
imposition of a licensing requirement. The hearing of any
appeal to the
Water Tribunal is also inquisitorial in character; it
is effectively a rehearing in respect of the administrative
decision-making
process at first instance.
[15]
[27]
It
has been recognised that, at least conceptually, there are material
advantages to the determination at first instance of matters
concerning the public administration by domestic tribunals with
relevant technical expertise. So, in
Koyabe
and Others v Minister for Home Affairs and Others
2009 (12) BCLR 1192
(CC),
2010 (4) SA 327
, at para. 35, Mokgoro J
observed that ‘Internal remedies are designed to provide
immediate and cost-effective relief,
giving the executive the
opportunity to utilise its own mechanisms, rectifying irregularities
first, before aggrieved parties resort
to litigation. Although courts
play a vital role in providing litigants with access to justice, the
importance of more readily
available and cost-effective internal
remedies cannot be gainsaid.’ The learned judge made
reference in this connection
to two passages in
Hoexter,
Administrative
Law in South Africa
(Juta, 2007).
[16]
In the first, the author had stated, at p. 52, ‘Courts
are unable to adjudicate effectively on many specialised matters,
while administrative bodies are able to do this more informally,
quickly, cheaply and expertly- and not necessarily any less justly.’
The second, at p. 64, qualified the truism with a reality
check: ‘In the South African context, however, the advantages
of speed, efficiency and expertise cannot be taken for granted as
they may perhaps be in older and more established administrative
systems.’
[28] The pertinence of the reference by the learned
Constiutional Court judge to the second passage in Hoexter is borne
out in the
context of the current case by two features.
[29] The first is that notwithstanding the commencement
of this litigation as long as 12 years ago, in 2005, no
effective steps
have yet been taken by the Department, in terms of
s 35 of the Act, to verify the water uses in contention.
In my view,
despite the Deputy Director’s averments that
progress has been made in this regard, effective steps in terms of
the provision
commence only when the notice contemplated in terms of
s 35(1) of the Act is given to the affected water user.
That
has not happened.
[30]
The second is that the
provisions that would potentially afford a basis for an effective
administrative determination of the questions
raised in the current
litigation have not been efficiently administered. Thus, as
appears from the judgment in
Exxaro Coal
(Mpumalanga) (Pty) Ltd and Another v Minister of Water Affairs and
Another
[2012] ZAGPPHC 354 (7 December
2012), the Water Tribunal effectively ceased to exist, apparently as
a result of the failure
by the Minister to see to it that
appointments were made to ensure that it remained legally
constituted; Nic Olivier,
Non-performance
of constitutional obligations and the demise of the water tribunal –
access to justice denied?
,
2014 TSAR
163.
[31]
Upon
enquiry after the hearing, I was informed by the Minister’s
counsel that the longstanding vacancies on the Water Tribunal
were
eventually filled in 2015. I have noted, however, that no
decisions by the Tribunal have been reported, either on SAFLII
or the
Department’s website, since a decision given at the end of
2011.
[32]
In
the circumstances I have not been persuaded that it would be
appropriate for the court to exercise its discretion against deciding
the declaratory relief sought by the applicants on the merits of the
case. I therefore find against the Department on the
first of
the aforementioned grounds of opposition.
[33]
Turning now to the
second ground of opposition. The Minister was empowered, in
terms of s 59(1) of the Water Act 54 of
1956, by notice in the
Government Gazette to declare any area to be a water control area.
The Minister was also empowered
in like manner to amend or repeal any
such notice. The properties concerned in the current
proceedings were included in the
Sanddrift water control area in
terms of Proclamations No.s 140 of 13 June 1975 and 277 of
30 November 1979. Section
62 of the 1956 Act empowered the
Minister to control the use of public water in water control areas.
The effect of Government
Notice 1801 of 1981 was to allocate the
quantity of public water that might be abstracted from the Spek and
Valschgat Rivers in
the water control area above the Lakensvalley Dam
to various farms with which the current proceedings are concerned.
The
position was summarised in the appeal court’s judgment in
Hexvallei
Besproeingsraad
.
As described in that judgment, the proclamation of the water control
area in respect of the properties described in Proclamations
No.s 140
of 13 June 1975 and 277 of 30 November 1979 was repealed by a
notice published in the Government Gazette on 18 February
1994.
[17]
The repealing notice stated
that ‘Resulting from this, control over the abstraction,
impoundment, storage and use of public
water from all public streams
in the areas concerned shall hence force
inter
alia
be effected in
terms of sections 9, 9B and 10 of the Water Act, 1956’.
[34]
The
effects of the declaration of a water control area and the consequent
imposition of use controls overrode the rights of riparian
property
owners to the use of public water. Allocations of water in
terms of s 62 of the 1956 Act would also displace
the effect of
allocations made in terms of any pertinent orders by the Water
Court. The question raised by the Minister’s
second
ground of opposition is whether the effect of the Water Court’s
order in the present matter was resuscitated when
the relevant part
of the water control area was deproclaimed.
[35]
Section
9 of the 1956 Act (read with s 52) regulated the use by owners of the
normal flow of water in a public stream
[18]
to which their properties were riparian. As Harms ADP explained
in
Hexvallei
Besproeingsraad
‘
Openbare water is hetsy normale of
surplusstroming. Alle oewereienaars het kragtens art 9 ’n
aanspraak op ’n redelike
aandeel in normale stroming (dit is
die hoeveelheid openbare water wat werklik en sigbaar in ’n
openbare stroom vloei en
wat deur regstreekse besproeiing, sonder
opgaring, vir die besproeiing van oewergrond nuttig aangewend kan
word). … [I]n
’n winterreënvalgebied …,
beteken dit in effek dat die meeste van die water wat in die droër
maande vloei,
in redelike aandele verdeel moet word’.
[19]
[36] The rights of riparian owners in terms of s 9
were, according to the tenor of the provision, subject to any
‘existing
right’. The expression ‘existing
right’ was defined in s 1 of the Act to mean, amongst
other things,
‘any right to water acquired by any person by
deed of servitude, agreement or order of a competent court’.
[37]
Section 10 served the same
purpose in respect of the ‘surplus water’. Surplus
water was defined as ‘
in relation to a public stream,
means public water flowing or found in that stream, other than the
normal flow, if any’.
Rights in terms of s 10 were
also subject to any ‘existing right’.
[38]
Section 9B of the 1956 Act was directed at
the control of the impoundment and abstraction of public water.
The provision empowered
the Minister to control the construction or
enlargement of waterworks. It did not bear on the waterworks
constructed pursuant
to the 1960 Water Court order with which the
current case is concerned. It was, however, of relevance to the
construction
of additional dam storage capacity in or about 1996 for
use on the properties owned by the first to seventh respondents.
[39]
In
Hexvallei
Besproeingsraad
,
Harms ADP expressed the opinion that the effect of the deproclamation
in terms of Notice No. 290 of 18 February 1990 was (as had
also been
found by Fourie J in this court at first instance in that
matter) that the pre-proclamation state of affairs was
restored.
After referring to the passage in Notice No. 290 that I have quoted
above,
[20]
Harms ADP stated ‘Die verwysing na art 9 (wat met normale
stroming handel) en art 10 (wat met surpluswater handel)
kan alleen
maar beteken dat die gebruik van water in die gebied deur die gewone
reëls oor die gebruik van water beheers sou
word. Dis nie te
versoene met ‘n gedagte dat die ministeriële
permittoekennings sou bly voortbestaan nie. Na my oordeel
was die
permitte se beperkings afhanklik van die voortbestaan van die
staatswaterbeheergebied’.
[21]
[40]
Mr
Duminy
argued that the abovementioned observations in
Hexvallei
Besproeingsraad
were obiter. I am
not convinced that he was right, but it is not necessary to decide
the point because in my own judgment
they correctly stated the legal
position that pertained after the deproclamation of the water control
area. The passage in
the deproclamation notice quoted earlier
unambiguously announced a change of regulatory regime consequent upon
the deproclamation.
It stated that ss 9, 9B and 10 would
thenceforth ‘inter alia’ apply. The rights created
or confirmed in
terms of the Water Court order were ‘existing
rights’ within the meaning of ss 9 and 10 of the 1956
Water Act.
The employment of the term ‘inter alia’
appears to me to have been intended to underscore the intention that
the status
ante quo the proclamation was to be restored, including
any regulatory controls that might have applied in a particular case
beyond
those expressly provided in terms of the mentioned provisions
of the Water Act.
[41]
For
these reasons I also find against the Department on the second of its
abovementioned grounds of opposition.
[42]
The
third ground of opposition concerns the applicants’ ‘existing
lawful water use’ within the meaning of the
Act.
Accepting for present purposes that the applicants’ entitlement
to relief is dependent on their ‘existing
lawful water use’
in terms of the Water Court order, it is clear, as mentioned earlier,
that the applicants contend that
the nature of such existing use
falls to be determined with reference to the abstraction of water
from the Spek and Valschgat Rivers
into the Inverdoorn Canal, and not
with reference to the water that they were able to extract from the
Canal itself. That
is an issue I would prefer not to determine
in the absence of the first to seventh respondents. I have
therefore decided
to refrain from dealing with that issue at this
stage.
[43]
All
questions of costs in respect of the first stage hearing will be
reserved for determination in the judgment to given on the
remaining
issues.
[44]
The
following order is made:
1.
The
following contentions raised by the sixteenth respondent in
opposition to the application –
(a) that the relief sought by the applicants should be
refused on the grounds that they should more appropriately have
applied for
a verification of their existing water use in terms of
section 35
of the
National Water Act 36 of 1998
and
(b) that the applicants’ water use rights remain
determined in terms of Government Notice 1801 dated 28 August
1981,
issued in terms of the Water Act 54 of 1956
are hereby determined adversely to the sixteenth
respondent.
2.
All
questions of costs in respect of the first stage hearing on 6-7 March
2017 will be reserved for determination in the judgment
to given on
the remaining issues in the application.
3.
The
parties are directed to make arrangements through the presiding
judge’s registrar for the set down for hearing of the
remaining
issues in the application.
A.G. BINNS-WARD
Judge of the High Court
[1]
The
Water Courts were established in terms of s 34 of the Water Act
54 of 1956. The Water Courts were presided over
by sitting
judges of the provincial divisions of the late Supreme Court having
concurrent territorial jurisdiction with the respective
Water
Courts. They were disestablished upon the repeal of Act 54 of
1956, in terms of
the
National Water Act 36 of 1998
, and were to some extent replaced by
the Water Tribunal, which has nationwide jurisdiction.
[2]
‘
This agreement
shall in no way restrict or affect the riparian rights of the
owner/s of the farm “Die Vlakte” and
the volumes of
water mentioned in paragraph (1) above do not include any water to
which the owner/s of the said farm are entitled
as riparian owners
to use on the said farm
’.
(My translation.)
[3]
Section 33(1) of the Act provides that ‘[a’] person may
apply to a responsible authority to have a water use which
is not
one contemplated in section 32(1)(a), declared to be an existing
lawful water use’. It is evident from the
definition of
‘responsible authority’ that it is a catchment
management agency, if the Minister has delegated the
authority to
it, failing which it is the Minister herself. Any decision
made in terms of that provision falls to be regarded
as if it were
made on an application in terms of s 41 of the Act, and is
therefore also amenable to appeal to the Water
Tribunal in terms of
s 148.
[4]
Para.
9.2.2 of the Minister’s heads of argument.
[5]
Junior
counsel for the first to seventh respondents attended the hearing on
a watching brief.
[6]
The
‘institutional respondents’ were the Worcester-East
Water User Association (cited as the thirteenth respondent)
and the
Hex Valley Irrigation Board (cited as the fourteenth respondent).
The Minister of Public Works was cited as the
fifteenth respondent.
None of the aforementioned respondents participated actively in the
litigation.
[7]
In
terms of s 35(4).
[8]
Roestorf
and Another v Johannesburg Municipal Pension Fund and Others
2012 (6) SA 184
(SCA), at para. 30.
See
also, amongst others,
Welkom
Village Management Board v Leteno
1958 (1) SA 490
(A), at 502,
Local
Road Transportation Board and Another v Durban City Council and
Another
1965 (1) SA 586
(A), at 592-594, and
Jockey
Club of South Africa and Others v Feldman
,
1942 AD 340
at 351-2.
[9]
In
paragraph [2]
above.
[10]
Section
3(4) of the Act.
[11]
In
paragraph [10].
[12]
See
paragraph [15]
above.
[13]
In
terms of s 149(1) of the Act.
[14]
See
Makhanya
NO v Goede Wellington Boerdery (Pty) Ltd and Another
[2013] 1 All SA 526
(SCA), at paras. 25-31.
[15]
See
s 148(4) of the Act read with paragraph 6 in the Sixth Schedule
thereto.
[16]
In
footnote 30.
[17]
Notice
No. 290, dated 18 February 1994.
[18]
‘
Public
stream’ was defined as meaning ‘
a
natural stream of water which flows in a known and defined channel,
whether or not such channel is dry during any period of
the year and
whether or not its conformation has been changed by artificial
means, if the water therein is capable of common
use for irrigation
on two or more pieces of land riparian thereto which are the subject
of separate original grants or on one
such piece of land and also on
Crown land which is riparian to such stream: Provided that a stream
which fulfils the foregoing
conditions in part only of its course
shall be deemed to be a public stream as regards that part only’.
It therefore
included what would ordinarily be called a river.
[19]
‘
Public
water consists of either normal flow or surplus water. In
terms of s 9 all riparian owners were entitled to
a reasonable
share of the normal flow (that is the volume of water that actually
and visibly flows in a public stream and which
can be used
beneficially for the direct irrigation of riparian lands without the
aid of storage facilities). …
[I]
n
a winter rainfall area … that means in effect that most of
the water that flows during the drier months has to be allocated
in
reasonable shares
’.
(My translation.)
Hexvallei
Besproeingsraad
supra,
at para. 5.
[20]
In
paragraph [33].
[21]
Hexvallei
Besproeingsraad
supra, at para. 12. ‘
The
reference to ss 9 (which deals with normal flow) and 10 (which
deals with surplus water) can but only mean that the use
of water in
the area would be regulated by the ordinary rules concerning water
usage. It is irreconcilable with the notion
that the
ministerial permit system would continue in existence. In my
judgment the permits were dependent on the continuance
in existence
of the government water control area
’.
(My translation.)