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[2023] ZAECMKHC 79
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Trustees for the Time Being of the CNJ Trust v Great Fish River Water Users' Association and Others - Full Bench Appeal (CA160/2022) [2023] ZAECMKHC 79 (25 July 2023)
IN THE HIGH COURT OF
SOUTH AFRICA
EASTERN CAPE DIVISION:
MAKHANDA
CASE NO. : CA
160/2022
In
the matter between:
THE
TRUSTEES FOR THE
TIME
BEING OF THE CNJ TRUST
Appellants
and
THE
GREAT FISH RIVER WATER
USERS’ASSOCIATION
1
st
Respondent
THE
MANAGEMENT COMMITTEE
OF
THE KLIPFONTEIN SUB AREA
OF
THE GREAT FISH RIVER WATER
USERS’
ASSOCIATION
2
nd
Respondent
MINISTER
OF THE DEPARTMENT:
WATER
AND SANITATION
LINDIWE
NONCEBA SISULU N.O.
3
rd
Respondent
THE
DEPARTMENT OF WATER AND
SANITATION,
PROVINCE OF THE
EASTERN
CAPE
4
th
Respondent
FULL BENCH APPEAL
JUDGMENT
GRIFFITHS, J.:
[1]
The central issues in this appeal are whether the rules of the first
respondent allow the first
respondent to abstract more than 125% of
its ministerially allocated water into the irrigation sub-canal known
as “Klip 1”,
and whether it is entitled to deduct such
surplus abstraction from the individual water use allocations of the
farmers using that
canal on what is referred to as a “rolling
average” basis.
[2]
It is common cause that the appellant’s crops are irrigated
with water abstracted from the
Fish River using a series of canals.
These canals furrow the water to the various farms situated alongside
the canals which in
turn take water therefrom for irrigation in
accordance with their water use allocations as defined in the
National Water Act
[1]
. In terms
of the Act, the appellant is permitted to use 687 500 m³ water
per annum based on 55 ha under irrigation at 12,500
m³ per
hectare.
[3]
A dispute arose between the appellant
[2]
and the first and second respondents relating to the issues as set
out in paragraph one above and, in particular, regarding the
deductions made from the appellant’s water use allocation based
on a rolling average during the course of the water year.
Because
Prudhon felt aggrieved and believed such grievance was not being
addressed, he approached the court on an urgent basis
for relief
against the first and second respondents. Certain parts of this
relief have since been abandoned but, essentially, the
appellant
sought a mandamus which was intended to force those respondents to
abstract no more water than the aggregate of the volumes
of water
ordered for delivery by the relevant water users drawing from Klip 1,
plus a ministerial allowance of 25% surplus. It
also sought an
interdict restraining such respondents from abstracting the surplus
water, and costs. Had such relief been granted,
it would have had the
effect of containing such surplus abstraction which in turn would
have forced an end to the deductions from
the appellant’s water
allocation, a matter of concern to the appellant.
[4]
Various agreements were entered into which were designed to take the
sting out of the alleged
urgency when the matter served before Kruger
AJ sitting in the Makhanda High Court. Apart from dealing with
various other issues
which are no longer relevant, she, in effect,
found that the rules allow for the abstraction of such surplus, and
for this to be
deducted from the water allocations of the various
farmers using the canal. She thus dismissed the relief sought with
costs. It
is this order which the appellant has appealed against.
[5]
It is common cause that the canal in question is largely an open,
unlined earth canal. It is 21
km long and only the first 1.7 km
thereof is lined with concrete. Eight water users, including the
appellant, receive their irrigation
water via this canal.
[6]
According to the expert engineers whose evidence the first respondent
placed before the court
by way of affidavit, the abstraction of water
for distribution to users results in losses over and above the
aggregate volume of
water ordered by the eight farmers in any given
week. This is so because of the nature of the canal which has been in
existence
for many years. Being an open earth canal, it suffers
losses from seepage into the earth (particularly after a weekend when
the
canal has not been used and has dried), from evaporation,
evapotranspiration (loss of water from soil and plants by
transpiration),
leaking of old sluices, over abstraction based on
inaccurate or defective measuring devices, intentional over
abstraction, leaks
and management and execution of the water demand
and supply. According to them, the losses are high in unlined earth
canals such
as this one. Weather and seasonal changes also have an
effect. There are furthermore no balancing dams to manage variations
and
the rate of flow in such canals.
[7]
Because of this continual loss of water, the Department of Water
Affairs recognized that special
circumstances exist in the Fish River
Scheme. It thus became necessary to allow an increased allocation per
annum to account for
conveyancing losses. This figure was pegged at
25% which was a compromise between the department and the various
irrigation boards
forming part of the scheme at the time. This
percentage was not scientifically determined.
[8]
A civil engineering technician and irrigation specialist, one Mulder,
attested on behalf of the
first respondent that he was then currently
assisting the first respondent with the capturing and administering
of the water use
data of all the sub-areas falling within the
management area of the first respondent. He developed an irrigation
water administration
computer program called “
iWate
”
for the capturing and processing of data relating to water orders and
sub-canal water abstraction volumes. He explained
that the 25%
allowance referred to earlier is the extra volume of water which the
first respondent may release during a water year
in addition to the
total annual volume of water entitlements of the irrigators on a
particular sub canal.
[9]
He further explained that he had introduced the concept of “surplus
losses” (being
those conveyance losses referred to earlier) to
balance water use throughout the water year whilst not exceeding the
annual quota.
To facilitate an equitable distribution of water to all
water users, the surplus losses in a particular canal were shared
amongst
all irrigators based on a rolling average. This concept was
officially recognized and approved by a board resolution of the first
respondent on 5 May 2017 and has been applied ever since as it has
been generally accepted as the only practical solution, and
is fair
and equitable.
[10]
The water orders of the irrigators on the canal are placed weekly and
such orders are then processed through
the
iWate
programme. In
accordance therewith the required amount of water is requested from
the relevant authorities in terms of the Act.
The water is ultimately
abstracted into the canal in accordance with these orders together
with the 25% allowance. To make up for
the increased conveyance
losses as detailed earlier, the surplus water is also released. This
surplus is thereafter determined
through the
iWate
system and
the irrigators are given periodic reports as to how this has been
calculated, and how it has been allocated to each
irrigator.
[11] It
is of importance to note that the
iWate
system incorporates
the concept of surplus losses, determines such surplus losses and
thereafter allocates them in accordance with
each irrigator’s
water use allocation. It is this very system, including this means of
allocating the surplus losses to each
irrigator, which was accepted
by the first respondent in its resolution of 5 May 2017. It is common
cause that the rules of the
first respondent were approved on 24
November 2017.
[12] It
is as against this background that the appellant has argued that the
high court’s judgment in finding
that the rules allow for such
surplus losses and their allocation to the irrigators is incorrect.
It has argued that the rules,
per se, do not mention or deal with
such surplus losses or means of allocating them and, accordingly, the
first respondent has
been acting unlawfully or
ultra vires
its
own rules in so doing. It has further been argued that because the
iWate
system was introduced to by way of a resolution which
predated the coming into being of these rules, the first respondent
is precluded
from relying on it. In presenting this argument, the
appellant has urged this court to find that the only relevant rule is
rule
6(d) which neither mentions such surplus losses or such means of
allocation. Kruger AJ thus, in the appellant’s submission,
was
wrong in her finding in this regard because her interpretation, in
effect, created a new contract for the parties (and all
the members
of the first respondent) and was in conflict with the express wording
of rule 6(d).
[13] On
the other hand, the first respondent has argued that it is not bound
simply by rule 6(d) but that on a
conspectus of all the rules as read
in context, and in particular as against the background of the
development and acceptance of
the
iWate
system, the rules must
be read to have incorporated the earlier described system of allowing
surplus losses and their distribution
amongst the water users.
Furthermore, the first respondent has contended that the appellant’s
recital of rule 6(5)(d) in
its heads of argument is incomplete and
has conveniently ignored the first sentence thereof which directly
refers to and permits
the use of the
iWate
system.
[14]
Both parties have accepted that in order to interpret the rules the
court must have regard to
Endumeni
[3]
.
In
Endumeni
Wallis JA laid to rest the continuing tension which then existed in
the various rules of interpretation relating to written documents,
such as legislation or other statutory instruments, as set forth in
previous cases. He said:
“
The
present state of the law can be expressed as follows:
Interpretation
is the process of attributing meaning to the words used in a
document, be it legislation, some other statutory instrument,
or
contract, having regard to the context provided by reading the
particular provision or provisions in the light of the document
as a
whole and the circumstances attendant upon its coming into existence.
Whatever the nature of the document, consideration must
be given to
the language used in the light of the ordinary rules of grammar and
syntax; the context in which the provision
appears; the
apparent purpose to which it is directed and the material known to
those responsible for its production. Where
more than one meaning is
possible each possibility must be weighed in the light of all these
factors. The process is objective,
not subjective. A sensible meaning
is to be preferred to one that leads to insensible or unbusinesslike
results or undermines the
apparent purpose of the document. Judges
must be alert to, and guard against, the temptation to substitute
what they regard as
reasonable, sensible or businesslike for the
words actually used. To do so in regard to a statute or statutory
instrument is to
cross the divide between interpretation and
legislation; in a contractual context it is to make a contract
for the parties
other than the one they in fact made. The 'inevitable
point of departure is the language of the provision itself', read in
context
and having regard to the purpose of the provision and the
background to the preparation and production of the document.”
[4]
[15] It
is also important to note that Wallis JA made it clear that where a
court finds that the language of a
particular provision is clear and
admits of little ambiguity, this cannot be entirely correct. He said
in this regard:
“
However,
that too is a misnomer. It is a product of a time when language was
viewed differently and regarded as likely to have a
fixed and
definite meaning; a view that the experience of lawyers down the
years, as well as the study of linguistics, has shown
to be mistaken.
Most words can bear several different meanings or shades of meaning
and to try to ascertain their meaning in the
abstract, divorced from
the broad context of their use, is an unhelpful exercise. The
expression can mean no more than that, when
the provision is read in
context, that is the appropriate meaning to give to the language
used.”
[5]
[16] As
foreshadowed earlier in this judgment, the appellant has submitted
that rule 6(d) is definitive of the
issue between the parties and
that its clear right to a mandamus and/or an interdict lies within
the terms of this rule, as properly
interpreted. This sub-rule reads
as follows:
“
Any
irrigator is entitled to only the scheduled net annual quota of water
as in #4 supra. At main canals where water gets distributed
to
multiple points of abstraction, up to a maximum allowance of 25% may
be made at the weir in the case of unlined (earth) canals,
and up to
a maximum of 15% in the case of lined canals, to allow for canal
distribution losses (natural – and operating losses),
but no
individual on such canals is rightfully entitled to any such extra
water in the canal. The allowance for losses strictly
belongs to the
canal/sub-area.
Sub-areas/groups must
strive not to abstract the full maximum allowance for losses because
they are so allowed, but must manage
and operate their water
distribution up front in such a way as to minimize the abstraction of
additional water at the weir.
Individuals
directly abstracting from the river or the state concrete canals are
not entitled to any such allowance for losses,
but only to their net
quotas. No individual anywhere on the whole system therefor (sic) has
any entitlement to more than his net
quota, regardless of the
position, status or method of abstraction.”
[17] It
is because of the surplus losses occurring in the unlined canal as
dealt with earlier that the first respondent
introduced to the
iWate
system by way of a resolution which it deemed to be fair and
equitable. Mulder’s evidence, as summarised earlier, explained
this as follows:
“
9.
It is commonly known that conveyance losses in these mostly unlined
earth canals in the First Respondent’s management area,
are
substantial. Currently, the 3
rd
Respondent compensates irrigators for these losses with an allowance
of 25% on the annual water quotas. The 25% allowance is the
extra
volume of water the First Respondent may release during a water year
in addition to the total annual volume of water entitlements
of the
irrigators on a particular sub-canal.
10. During 2017 I
introduced to the concept of “surplus losses” which are
those conveyance losses in excess of the departmentally
allowed 25%
annual loss allowance. In order to balance water use throughout the
water year whilst not exceeding the annual quota
and to facilitate an
equitable distribution of water to all water users, the surplus
losses in a particular canal are shared amongst
all irrigators on the
basis of the rolling average. This concept was officially recognized
and approved by a board resolution of
the First Respondent on 5 May
2017. It has been applied ever since and has been generally accepted
as the only practical solution,
which is fair and equitable.”
[18] It
is apparent from this that the
iWate
system effectively
reduces the volume of water which the irrigators are entitled to in
accordance with their annual water entitlements
to ensure that the
abstraction of water remains within the annual allowance. The
question which arises in the circumstances is
as to whether clause
6(d) allows for this system, or prohibits it.
[19] In
accordance with
Endumeni
, the provisions of the rule must be
read in light of the document (the rules) as a whole and the
circumstances attendant upon its
coming into existence. Consideration
must be given to the language used in the light of the ordinary rules
of grammar and syntax,
the context in which the provision appears and
the apparent purpose to which it is directed, and the material known
to those responsible
for its production.
[20]
There is little doubt that the
iWate
system was in existence
for some time before the launching of this application, although
there has been some dispute in that regard.
As pointed out by the
appellant, it was introduced (by way of resolution) some months
before the passing of the rules in their
present form, including rule
6(d). It is clear therefore that the framers of the rule were fully
alive to the complex set of problems
that the first respondent and
the various irrigators concerned experienced regarding unlined
canals. They had, at that point in
time, devised a scheme known as
the
iWate
system, in order to deal with this. It was not a
system that had simply arisen overnight as it were, but a system
which had evolved
and developed as a consequence of the situation on
the ground. Hence, being satisfied that this system was the most
practical way
of dealing with the problem, the first respondent
adopted it by way of resolution.
[21] It
must therefore be accepted that as at the time when the rules were
passed in the present form, this was
done in the knowledge that the
iWate
system was up and running, and, of importance, that it
incorporated a means of dealing with surplus losses so as to maintain
the
level of abstraction within the annual quota allowed. Why, as
against this background, would they pass a rule which, in and of
itself, simply discarded all that had gone before?
[22]
Additionally, under the heading “Water Use management and
admin” at clause 10 c) of the rules,
the
iWate
system is
specifically referred to, incorporated, and made compulsory for all
users. Several directives are given in the sub-rule
relating to the
administration of the system and under the sub-heading “
Water
Demand Budgets
” an example of a seasonal water budget is
given. Therein is to be found the clear wording: “
Redistribution
of surplus losses (m3)”.
It seems clear, in my view, that
these words were incorporated because the system was largely devised
to deal with this very problem.
[23] In
my view, in applying
Endumeni
and viewing clause 6(d) in
context and through the prism of the framers of the rules who were
alive to all these facts and circumstances,
the only appropriate
interpretation thereof is that it does not prohibit the use of the
iWate
system and its method of catering for the surplus losses
as described by Mulder. To hold otherwise, would lead to the
conclusion
that the framers intended to apply an exact science to an
inexact one which, in my view would lead to an absurdity.
[24]
Indeed, in my view the wording of that sub-rule does not exclude this
system. It is foreshadowed in the first
sentence with the words “
Any
irrigator is entitled to only the scheduled net annual quota of water
as in #4 above
”. Surely the remainder of the wording is
governed by this. It is the net annual quota which, as I understand
it, the system
seeks to ensure is not exceeded. The sub-rule must be
read in context with all the other rules which specifically cater for
the
iWate
system.
[25] It
seems that this is the conclusion which Kruger AJ came to in her
judgment when she said:
“
87.
It is evident that there is no explicit rule in the first
respondent’s rules that permits it to allocate surplus losses
to water users. It is also evident that no amendment was made to the
rule to regulate the allocation of surplus losses specifically.
88. But, the first
respondent’s rules do not stand on their own. The first
respondent is tasked with management and scheduling
of water
distribution. It does so through the iWate system which the rules
incorporate by reference. As such, the system and its
allocation of
surplus losses on a rolling average basis, based on the explicit
earlier approval thereof by the management committee
of the first
respondent in May 2017, form part of the overall water management
system and rules of the first respondent as implemented
in the
sub-areas.”
[26] In
the circumstances, I can find no fault with this conclusion and, in
my view, the appeal cannot therefore
succeed.
[27]
The following order will issue:
The appeal is
dismissed with costs.
R E GRIFFITHS
JUDGE OF THE HIGH
COURT
MJALI, J.
I agree
G N Z MJALI
JUDGE OF THE HIGH
COURT
NTSEPE, A. J.
I agree
N NTSEPE
ACTING JUDGE OF THE
HIGH COURT
COUNSEL
FOR APPELLANT
Mr
De La Harpe SC with
Adv.
Watt
INSTRUCTED
BY
Cloete
& Company
CONSEL
FOR RESPONDENTS
Mr
Swanepoel SC
INSTRUCTED
BY
Nolte
Smith Attorneys
HEARD ON:
29 MAY 2023
DELIVERED ON:
25 JULY 2023
[1]
No.
36 of 1968.
[2]
In
the form of one Prudhon who, duly authorized by the appellant,
represented it in these proceedings.
[3]
Natal
Joint Municipal Pension Fund v Endumeni Municipality
2012
(4) SA 593 (SCA)
[4]
Endumeni
at
paragraphs 18 - 19
[5]
Endumeni
at paragraph 25