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[2021] ZASCA 159
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Lotter N O and Others v Minister of Water and Sanitation and Others (725/2020) [2021] ZASCA 159; [2022] 1 All SA 98 (SCA); 2022 (1) SA 392 (SCA) (8 November 2021)

THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Reportable
Case No. 725/2020
In the matter
between:
CASPER JACOBUS
LÖTTER N O

FIRST APPELLANT
JACOBUS ANDREAS
DU PLESSIS N O

SECOND APPELLANT
JOHANNES
CORNELIUS HEUNIS N O

THIRD
APPELLANT
and
MINISTER OF WATER
AND SANITATION

FIRST RESPONDENT
MINISTER OF
ENVIRONMENTAL AFFAIRS

SECOND RESPONDENT
DIRECTOR-GENERAL:
DEPARTMENT OF WATER
AND
SANITATION

THIRD RESPONDENT
BRITZKRAAL (PTY)
LTD

FOURTH RESPONDENT
and in the matter
between:
FRANCOIS
GERHARDUS JOHANNES WIID

FIRST APPELLANT
TORQHOFF BOERDERY
(PTY) LTD

SECOND
APPELLANT
FRANCOIS
GERHARDUS JOHANNES WIID N O

THIRD APPELLANT
REINETTE JEPPE
WIID N O

FOURTH APPELLANT
CAREL JACOBUS VAN
PLETZEN N O

FIFTH APPELLANT
and
MINISTER OF WATER
AND SANITATION

FIRST RESPONDENT
MINISTER OF
ENVIRONMENTAL AFFAIRS

SECOND RESPONDENT
DIRECTOR-GENERAL:
DEPARTMENT OF WATER
AND SANITATION

THIRD RESPONDENT
GABRIEL PETRUS
VILJOEN N O

FOURTH RESPONDENT
ANTON ANDRE
STRYDOM N O

FIFTH RESPONDENT
ANTON STEPHANUS
VILJOEN N O

SIXTH RESPONDENT
and in the matter
between:
SOUTH AFRICAN
ASSOCIATION
FOR WATER USER
ASSOCIATIONS

FIRST APPELLANT
EAGLE NEST
INVESTMENTS 3 CC

SECOND APPELLANT
THUSANO
EMPOWERMENT FARM (PTY) LTD

THIRD APPELLANT
and
MINISTER OF WATER
AND SANITATION

FIRST RESPONDENT
DIRECTOR-GENERAL:
DEPARTMENT OF
WATER AND
SANITATION

SECOND RESPONDENT
SIFISO MKHIZE N O

THIRD RESPONDENT
DEPUTY
DIRECTOR-GENERAL: WATER SECTOR
REGULATION,
DEPARTMENT OF WATER
AND SANITATION

FOURTH RESPONDENT
DEPUTY
DIRECTOR-GENERAL: SPECIAL PROJECTS,
DEPARTMENT OF
WATER AND SANITATION

FIFTH RESPONDENT
Neutral
citation:
Lötter
N O and Others v Minister of Water and Sanitation and Others
(725/2020)
[2021] ZASCA 159
(8
November 2021)
Coram:
Makgoka, Plasket, Gorven and Hughes
JJA and Kgoele AJA
Heard
:
20 August 2021
Delivered
:
This judgment was handed down electronically by circulation to the
parties’ legal
representatives by email. It has also been
published on the Supreme Court of Appeal website and released to
SAFLII. The date and
time for hand-down is deemed to be 09h45 on 8
November 2021.
Summary:
National Water Act
36 of 1998
– interpretation of
s 25
thereof – whether
s 25
permits transfers of water use entitlements, with the approval of the
regulatory authority, from the holder thereof to a third
party –
such transfers contemplated by
s 25
– trading in water use
entitlements – such not prohibited in the Act, and therefore,
not unlawful.
ORDER
On
appeal from:
Gauteng
Division of the High Court, Pretoria (Mavundla, Ranchod and Mothle JJ
sitting as court of first instance)
1. The appeal in
each case is upheld with costs, including the costs of two counsel,
to be paid by the Minister of Water and Sanitation
and the
Director-General of the Department of Water and Sanitation.
2. The order of the
full bench in respect of each case is set aside and replaced with the
following order.
‘
1.
It is declared that, in terms of s 25(1) of the National Water Act 36
of 1998 (the NWA), a water management institution
is empowered, at
the request of a person authorized in terms of the NWA to use water
for irrigation:
(a) to allow that
person on a temporary basis, and on such conditions as the water
management institution determines, to use some
or all of that water
for a different purpose; or
(b) to allow that
person to allow a third party the use of some or all of that water on
another property in the same vicinity, for
the same or a similar
purpose.
2. It is declared
that, in terms of s 25(2) of the NWA, a person holding an entitlement
to use water from a water resource in respect
of any land may
surrender that entitlement in whole or in part:
(a) in order to
facilitate a licence application by the holder of the entitlement or
of a third party in terms of s 41 of the NWA
for the use of that
water in respect of other land owned or controlled either by the
holder of the entitlement or the third party;
(b) that the
surrender of the entitlement by the holder of the entitlement only
becomes effective in the event of the licence application,
in terms
of s 41 of the NWA, of the holder of the entitlement or of the third
party being approved by the responsible authority;
(c) an agreement
between the holder of an entitlement to use water and a third party,
in respect of the surrender of the entitlement
by the former to
facilitate an application for a licence in respect thereof by the
latter, in return for payment of compensation,
is not prohibited.
3.   In
the
Lötter
and
Wiid
cases:
(a) the applicants
are exempted, in terms of
s 7(2)
(c)
of the
Promotion of
Administrative Justice Act 3 of 2000
from having to exhaust their
internal remedies; and
(b) the decisions
taken by the Director-General, Department of Water and Sanitation to
refuse the applications of the applicants
for licences in terms of
s
41
of the NWA are reviewed and set aside.
4.   The
Minister of Water and Sanitation and the Director-General of the
Department of Water and Sanitation are ordered
to pay the costs of
the applicants, including the costs of two counsel.’
JUDGMENT
Plasket
JA (
Gorven and
Hughes JJA and Kgoele AJA
concurring)
[1]
This appeal concerns three cases, heard together by a full bench of
the Gauteng Division
of the High Court, Pretoria, in which the same
issues were dealt with. They are whether water use entitlements in
terms of the
National Water Act 36 of 1998 (the NWA) may be
transferred temporarily or permanently from an entitlement-holder to
another person,
and whether trading in water use entitlements is
permitted.
[1]
These issues
involve the interpretation of s 25 of the NWA within the broader
context of the statute.
[2]
Section 25 of the NWA is headed ‘Transfer of water user
authorisations’.
It reads:
‘
(1)
A water management institution may, at the request of a person
authorised to use water for irrigation under this Act, allow
that
person on a temporary basis and on such conditions as the water
management institution may determine, to use some or all of
that
water for a different purpose, or to allow the use of some or all of
that water on another property in the same vicinity for
the same or a
similar purpose.
(2) A person holding an
entitlement to use water from a water resource in respect of any land
may surrender that entitlement or
part of that entitlement –
(a)
in order to facilitate a particular licence
application under section 41 for the use of water from the same
resource in respect
of other land; and
(b)
on condition that the surrender only becomes
effective if and when such application is granted.
(3) The annual report of a water
management institution or a responsible authority, as the case may
be, must, in addition to any
other information required under this
Act, contain details in respect of every permission granted under
subsection (1) or every
application granted under subsection (2).’
[3]
In what follows, I shall first set out the facts of each of the three
cases. I will
then consider the judgment of the full bench and its
reasoning. Thereafter I will discuss the terms of the NWA in general.
When
that has been done, I will turn to the core issues that arise in
this appeal: I will interpret s 25(1) and s 25(2) of the NWA and

answer the question whether trading in water use entitlements is
prohibited. Finally, I will make the orders that flow from my

findings on the issues that I have identified.
The cases
[4]
In the
Lötter
matter, the Doornkraal Business Trust
(Doornkraal), the owner of farms in the Somerset East district of the
Eastern Cape, had concluded
an agreement with Britzkraal Properties
(Pty) Ltd (Britzkraal) in terms of which Doornkraal purchased 30
hectares of Britzkraal’s
water use entitlement for a price of
R1 950 000. The parties declared in their agreement that
they were aware that the
approval of the regulatory authority was
necessary and made that approval a suspensive condition.
[5]
Pursuant to the agreement, and in terms of s 25(2) of the NWA,
Britzkraal surrendered
its water use entitlement and Doornkraal
applied for a licence in respect of that water use entitlement in
terms of s 41 of the
NWA. To this end, Doornkraal furnished a
detailed motivation that dealt with each of the relevant
considerations for the grant
of a licence listed in s 27(1) of the
NWA.
[6]
The motivation explained that while the property concerned had
existing water use
entitlements, Doornkraal required more water
because it wished to expand its dairy farming operation. It stated
that its proposed
water use would thus form part of its ‘integrated
farming concern’. In respect of the likely effect of the water
use
on the water resource and other water users, Doornkraal said that
no other authorized water user would be affected if the licence
was
granted.
[7]
The Director-General of the Department of Water and Sanitation –
the responsible
authority for purposes of s 41 – refused
Doornkraal’s application. He did so, according to his letter to
Doornkraal
of 16 January 2018, for the following reason:
‘
Kindly
note that
Section 25(2)
of the
National Water Act (Act
36 of 1998)
does not make provision for the transfer of a water use entitlement
from one person to another. A person who holds
an entitlement may
only surrender part or all of his/her entitlement to facilitate a
water use licence application to use of water
from the same resource
in respect of other land that belongs to that person. The
National
Water Act therefore
does not make provision for the trading or
transferring of water use entitlements between two separate legal
entities.’
[8]
Doornkraal’s trustees then launched an application in the
Gauteng Division of
the High Court, Pretoria for a declarator as to
the meaning and effect of
s 25(2)
of the NWA and for the review and
setting aside of the Director-General’s decision to refuse the
licence application.
[9]
The
Wiid
matter was similar. It concerned three agreements
between Mr Wiid, Torqhoff Boerdery (Pty) Ltd and the trustees of the
De Kalk Trust,
on the one hand, and the GP Viljoen Trust, on the
other. In terms of these agreements, the GP Viljoen Trust undertook
to surrender
its water use entitlements so that the other contracting
parties could apply for licences in respect of those entitlements.
The
purpose of the transfer was to enhance the combined crop farming
operation of Mr Wiid, Torqhoff Boerdery and the De Kalk Trust in
the
Hopetown District of the Northern Cape.
[10]
In the first agreement, the GP Viljoen Trust agreed to surrender its
entitlement to 888 999m
3
of water use to Mr Wiid for
a consideration of R5 920 000; in the second, it agreed to
surrender its entitlement to 2 312 000m
3
of
water use to Torqhoff Boerdery for a consideration of R15 413 333;
and in the third, it agreed to surrender its entitlement
to 222 000m
3
of water use to the De Kalk Trust for a consideration of R2 666 667.
[11]
Pursuant to these agreements, the GP Viljoen Trust surrendered its
water use entitlements in
terms of
s 25(2)
of the NWA and Mr Wiid,
Torqhoff Boerdery and the De Kalk Trust applied for licences in
respect of those entitlements in terms
of
s 41
of the NWA. They
furnished a detailed motivation that dealt with each of the relevant
considerations for the grant of a licence
in terms of
s 27(1)
of the
NWA.
[12]
In his founding affidavit, Mr Wiid explained that the three
applicants had previously leased
the water use for which they had
applied for licences. As with the
Lötter
matter, the
motivation stated that the granting of the licence applications would
have no effect on other authorized water users.
[13]
As with the
Lötter
matter, the Director-General refused
all three applications. He did so for the same reason:
s 25(2)
of the
NWA did not allow for the transfer of water use entitlements from one
person to another, and that trading in water rights
was not
permitted. As a result, Mr Wiid, in his personal capacity, Torqhoff
Boerdery and the trustees of De Kalk Trust applied
to the Gauteng
Division of the High Court, Pretoria for a declarator in respect of
the meaning and effect of
s 25(2)
and for the review and setting
aside of the decisions to refuse the licence applications.
[14]
The third case – the
South African Association for Water
User Associations
matter (the
SAAWUA
matter) –
differs to an extent from
Lötter
and
Wiid
. SAAWUA,
a voluntary association of 77 Water User Associations and Irrigation
Boards, as well as Eagle’s Nest Investments
3 CC and Thusano
Empowerment Farm (Pty) Ltd, applied to the Gauteng Division of the
High Court, Pretoria, for a declarator in respect
of the meaning and
effect of both
s 25(1)
and
s 25(2)
of the NWA. SAAWUA applied for
this relief in its own interest, on behalf of its members and in the
public interest. Eagle’s
Nest and Thusano did so after
applications that they had made for transfers of water use
entitlements had been refused on the same
basis as in
Lötter
and
Wiid
.
[15]
In its founding affidavit, SAAWUA explained the background to, and
the purpose of, the case,
and that of the other two applicants, as
follows:
’
16
The purpose of this application is to bring clarity and certainty, by
way of declaratory
orders, with regard to the proper scope, ambit,
meaning and interpretation of
section 25(1)
and of
section 25(2)
of
the NWA.
17
In a nutshell the legal issue between the Applicants and the State
Respondents is simply
whether the provisions of
section 25
of the NWA
can be used by a person
already
holding a water use entitlement under or in terms of the NWA for a
transfer of that water use entitlement
only
to him- or herself but not to another person or a third party
.
(
Underlining in the original
text.)
18
Before 19 January 2016 there was no dispute or question concerning
the scope and ambit
of
section 25
of the NWA and the permissibility
of a transfer of water use entitlement . . . to another person or a
third party in terms of the
provisions thereof, and
section 25
of the
NWA was regularly and constantly used and implemented in practice
over the period from 1 October 1998 (the date of commencement
of the
NWA) up to 19 January 2018 (the date of issue of the Legal Services
Circular No 1 of 2017 . . .) to effect such transfers
of water use
entitlements.
19
However, on 19 January 2018 and by way of the issue of the Legal
Services Circular
No 1 of 2017 . . . the State Respondents adopted
the stance that, upon their interpretation,
section 25
of the NWA
does not make provision for the transfer of a water use entitlement
from one person to another and that the NWA does
not contemplate a
“
trading of water
” between private parties or the
transfer of water use entitlements between private individuals.’
[16]
The full bench dismissed all three applications but granted leave to
appeal to this court. It
is to the judgment of the full bench that I
now turn.
The judgment of
the court below
[17]
The full bench identified the issues for decision as being the
interpretation of
s 25
of the NWA, particularly whether it permitted
transfers of water use entitlements from a holder to a third party,
and whether ‘the
Act permits the sale of, or trade in the water
use entitlement, through the transfer or surrender thereof to a third
party’.
[18]
It held that while s 25 made no express mention of a third party to
whom a water use entitlement
could be transferred, the section was
capable of either a wide or a narrow meaning: either that it
permitted transfers of water
use entitlements from one person to
another; or that it limited transfers to the transfer of water use
entitlements from one property
owned or controlled by a holder of a
water use entitlement to another property owned or controlled by the
same person.
[19]
This debate, the full bench held, was in truth of ‘no moment’
because the real issue
in dispute between the parties was ‘the
question of water trading’. The dispute concerning the
interpretation of s
25 was ‘a collateral issue that is merely
the means to justify the real dispute, which is whether or not it is
still permissible
for a holder of a water use entitlement to trade in
or sell it, as previously authorised by Circular no 18 of 2001’.
[2]
[20]
The full bench proceeded to say that the contention advanced by the
appellants concerning the
meaning of s 25 was ‘intended to
justify water trading’ but ‘water trading is no longer
permissible, for a variety
of reasons based on the purposes outlined
in section 2 of the Act’. It then proceeded to set out three
reasons why it came
to that conclusion.
[21]
The first reason given for why the transfer of water use entitlements
was no longer permitted
was that their transfer would enable holders
of water use entitlements to ‘continue to identify and choose
who the recipients
of the transferred or surrendered entitlement
should be’. The NWA does not make provision for that but
instead it ‘empowers
the water institutions to receive the
request for transfers and surrender of the water use entitlements’.
[22]
The second reason given was that ‘there is no authority in the
Act, permitting holders
of the entitlements to sell their
entitlements’. Allowing that to take place would result in the
‘privatisation of
a national resource to which all persons must
have access’. With reference to the Minister’s
obligations in terms of
s 3 of the NWA to ensure that ‘water is
allocated equitably and used beneficially in the public (
not
private
) interest’, the full bench said that the courts
‘cannot accept a construction of s 25 of the Act which impedes
the
Minister from discharging this obligation’.
[23]
The third reason given was that the ‘sale of water use
entitlements by the holders thereof
in private agreements,
discriminates against those who cannot afford the prices of
compensation unilaterally determined by the
holder’. Such a
system maintains a ‘monopoly of access to water resources only
to established farmers who are financially
well resourced’; and
the sale of water use entitlements would ‘frustrate equal
access and keep historically disadvantaged
persons out of the
agricultural industry’.
[24]
The full bench concluded:
‘
For
reasons stated above, I find that on a proper construction of section
25 of the Act, the words ‘
another
property in the vicinity
’ and
‘
other land
’
could mean either as owned by the holder of the water use
entitlement, or by another person or third party. I further find
that
water trade or sale of water use entitlements is unlawful as it
offends s 2 of the Act, and is inconsistent with the spirit,
purport
and objects of the Bill of Rights in the Constitution.’
[25]
In the result, the full bench dismissed the appellants’
applications for declarators as
to the meaning of s 25 of the NWA,
without even interpreting it, because the objective of the
applications was, it held, ‘to
justify water trade’. The
applications to review and set aside the decisions to refuse
transfers of water use entitlements
in
Lötter
and
Wiid
were also dismissed.
The NWA
[26]
Given South Africa’s generally arid nature and susceptibility
to droughts, it is not surprising
that from prior to Union in 1910,
successive governments have recognised the public interest in the
proper and efficient use of
water, and have regulated its use. The
NWA repealed and replaced the Water Act 54 of 1956. In so doing,
Leach JA observed in
S
v Mostert and Another
,
[3]
it ‘fundamentally reformed South African water law’. It
did so by abolishing the common-law distinction between public
and
private water as a basis for use entitlements. Instead, the national
government ‘was granted the overall responsibility
for and
authority over the country’s water resources and their use’.
In this framework, the Minister of Water and Sanitation
acts on
behalf of the national government as the ‘public trustee of the
nation’s water resources’.
[27]
The long title of the NWA gives notice of its transformatory aims. It
provides that the NWA is
to ‘provide for fundamental reform of
the law relating to water resources; to repeal certain laws; and to
provide for matters
connected therewith’.
[28]
The preamble recognizes a number of fundamentals. They are that:
water is a ‘scarce and
unevenly distributed national resource’
occurring in ‘many different forms which are all part of a
unitary, inter-dependent
cycle’; while the resource ‘belongs
to all people, the discriminatory laws and practices of the past have
prevented
equal access to water, and use of water resources’;
the aim of managing this resource ‘is to achieve the
sustainable
use of water for the benefit of all users’; the
protection of the quality of this resource is ‘necessary to
ensure
sustainability of the nation’s water resources in the
interests of all water users’; and the need for ‘the
integrated
management of all aspects of water resources’. The
preamble acknowledges that the national government should have
‘overall
responsibility for and authority over the nation’s
water resources and their use, including the equitable allocation of
water
for beneficial use, the redistribution of water, and
international water matters’.
[29]
Section 2 sets out the purposes of the NWA. It provides:
‘
The
purpose of this Act is to ensure that the nation's water resources
are protected, used, developed, conserved, managed and controlled
in
ways which take into account amongst other factors-
(a)
meeting the basic human needs of present and future generations;
(b)
promoting equitable access to water;
(c)
redressing the results of past racial and gender discrimination;
(d)
promoting the efficient, sustainable and
beneficial use of water in the public interest;
(e)
facilitating social and economic development;
(f)
providing for growing demand for water use;
(g)
protecting aquatic and associated
ecosystems and their biological diversity;
(h)
reducing and preventing pollution and degradation of water resources;
(i)
meeting international obligations;
(j)
promoting dam safety;
(k)
managing floods and droughts,
and for achieving this purpose,
to establish suitable institutions and to ensure that they have
appropriate community, racial and
gender representation.’
[30]
Section 3 creates the public trusteeship of water resources. It does
so in the following terms:
‘
(1)
As the public trustee of the nation's water resources the National
Government, acting through the Minister, must ensure that
water is
protected, used, developed, conserved, managed and controlled in a
sustainable and equitable manner, for the benefit of
all persons and
in accordance with its constitutional mandate.
(2) Without limiting subsection
(1), the Minister is ultimately responsible to ensure that water is
allocated equitably and used
beneficially in the public interest,
while promoting environmental values.
(3) The National Government,
acting through the Minister, has the power to regulate the use, flow
and control of all water in the
Republic.’
[31]
Section 4 is headed ‘Entitlement to water use’. It
provides:
‘
(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.’
[32]
The NWA contemplates lawful water use either with or without a
licence. A licence is not necessary
if the use is for a purpose set
out in Schedule 1,
[4]
if the
user enjoys an existing lawful water use in terms of s 34,
[5]
if a general authorization is issued in terms of s 39
[6]
or if the responsible authority has otherwise dispensed with a
licence requirement.
[7]
In any
other instance, a person who wishes to use water must have a licence
to do so in terms of the NWA.
[8]
[33]
Section 26 grants to the Minister the power to make regulations on a
wide range of topics such
as, for example, ‘limiting or
restricting the purpose, manner or extent of water use’
[9]
and ‘requiring that the use of water from a water resource be
monitored, measured and recorded’.
[10]
Section 26(1)
(l)
empowers the Minister to make regulations:
‘
relating
to transactions in respect of authorisations to use water, including
but not limited to –
(i)
the circumstances under which a transaction may be permitted;
(ii)
the conditions subject to which a transaction may take place; and
(iii)
the procedure to deal with a transaction.’
[34]
Section 27(1) sets out factors that are relevant when considering
general authorisations under
s 39 and licences under s 40. The
section provides:
‘
In
issuing a general authorisation or licence a responsible authority
must take into account all relevant factors, including –
(a)
existing lawful water uses;
(b)
the need to redress the results of past racial and gender
discrimination;
(c)
efficient and beneficial use of water in the public interest;
(d)
the socio-economic impact-
(i)
of the water use or uses if authorised; or
(ii)
of the failure to authorise the water use or uses;
(e)
any catchment management strategy applicable to the relevant water
resource;
(f)
the likely effect of the water use to be
authorised on the water resource and on other water users;
(g)
the class and the resource quality objectives of the water resource;
(h)
investments already made and to be made by the
water user in respect of the water use in question;
(i)
the strategic importance of the water use to be authorised;
(j)
the quality of water in the water resource which
may be required for the Reserve and for meeting international
obligations; and
(k)
the probable duration of any undertaking for which
a water use is to be authorised.’
[35]
The effect of s 27(1) on decision-making in terms of the NWA was
discussed by this court in
Makhanya
NO and Another v Goede Wellington Boerdery (Pty) Ltd
.
[11]
The court stated:
‘
The
Constitutional Court has previously had occasion to address
administrative decision-making where the official is faced with
a
number of considerations of which racial redress is one. Much like
the situation facing the court in
Bato
Star
,
s
27(1)
(b)
contains
a wide number of objectives and principles. Some of them may be in
conflict with one another, as they cannot all be fully
achieved
simultaneously. There may also be many different ways in which each
of the objectives stand to be achieved. The section
does not give
clear guidance on how the balance an official must strike is to be
achieved in doing the counterweighing exercise
that is required.
As
opposed to the legislative scheme before the court in
Bato
Star
,
there is no indication in the Act that s 27(1)
(b)
is
to be regarded as in any way more important than the other factors.’
[12]
[36]
Section 28(1) lists the essential requirements that a licence must
specify. They are:
‘
(a)
the water use or uses for which it is issued;
(b)
the property or area in respect of which it is
issued;
(c)
the person to whom it is issued;
(d)
the conditions subject to which it is issued;
(e)
the licence period, which may not
exceed forty years; and
(f)
the review periods during which the licence may be
reviewed under section 49, which must be at intervals of not more
than five years.’
[37]
Section 29 allows for conditions to be attached to licences. In terms
of s 29(1), these conditions
may relate to such matters as: the
protection of the water source concerned, the stream flow regime and
other existing or potential
users;
[13]
water management, specifically in respect of management practices and
requirements for water use, as well as monitoring, analysis
and
reporting requirements;
[14]
and return flow and discharge or disposal of waste.
[15]
Section 29(2) provides that if ‘a licensee has agreed to pay
compensation to another person in terms of any arrangement to
use
water, the responsible authority may make the obligation to pay
compensation a condition of the licence’.
[38]
Section 40 concerns applications for water-use licences. Section
40(1) states that a person ‘who
is required or wishes to obtain
a licence to use water must apply to the relevant responsible
authority for a licence’. Section
41 sets out detailed
procedures relating to applications for licences. Section 41(1)
requires applications to be made on the prescribed
form, contain
information determined by the responsible authority and be
accompanied by the prescribed fee. The remainder of the
section deals
with the extensive powers granted to the responsible authority to
obtain additional information and investigate relevant
issues. For
instance, s 41(2) provides:
‘
A
responsible authority –
(a)
may, to the extent that it is reasonable to do so,
require the applicant, at the applicant's expense, to obtain and
provide it by
a given date with-
(i)
other information, in addition to the information contained in the
application;
(ii)
an assessment by a competent person of the likely effect of the
proposed licence
on the resource quality; and
(iii)
an independent review of the assessment furnished in terms of
subparagraph (ii), by a
person acceptable to the responsible
authority;
(b)
may conduct its own investigation on the likely
effect of the proposed licence on the protection, use, development,
conservation,
management and control of the water resource;
(c)
may invite written comments from any
organ of state which or person who has an interest in the matter; and
(d)
must afford the applicant an opportunity to make
representations on any aspect of the licence application.’
[39]
Section 41(4) ensures that applications for licences are not
concluded in secret. It provides:
‘
A
responsible authority may, at any stage of the application process,
require the applicant –
(a)
to give suitable notice in newspapers
and other media –
(i)
describing the licence applied for;
(ii)
stating that written objections may be lodged against the application
before a specified
date, which must be not less than 60 days after
the last publication of the notice;
(iii)
giving an address where written objections must be lodged; and
(iv)
containing such other particulars as the responsible authority may
require;
(b)
to take such other steps as it may direct to bring
the application to the attention of relevant organs of state,
interested persons
and the general public; and
(c)
to satisfy the responsible authority that the
interests of any other person having an interest in the land will not
be adversely
affected.’
[40]
Section 42 places an obligation on a responsible authority who has
taken a decision on a licence
application to notify the applicant and
any objectors of the decision taken and, on the request of either the
applicant or an objector,
to furnish written reasons for the
decision.
[41]
I have endeavoured to provide both an outline of the regulatory
system that is created by the
NWA, as it applies in this case, and an
overview of its most important provisions relevant to the issues
before us. I turn now
to the interpretation of s 25.
The
interpretation of s 25 of the NWA
[42]
The full bench appears to have dismissed the applications for the
declarators on the basis of
some or other unexplained abuse of
process on the part of the appellants. It ought not to have done so
and misdirected itself as
a result. More importantly, in so doing, it
failed to answer the first question that was before it, namely
whether s 25 of the
NWA allowed for the transfer of water use
entitlements from one person to another. It is only when that
question has been answered
that the second question can be answered,
namely whether, if transfers of water use entitlements are envisaged
by the NWA, contractual
arrangements may be put in place by parties
for the effectual sale or leasing of water use entitlements.
[43]
The correct approach to the interpretation of written documents, be
they statutes or contracts,
was set out authoritatively by this court
in
Natal
Joint Municipal Pension Fund v Endumeni Municipality
.
[16]
Essentially, what is required is an objective, unitary exercise that
takes into account the language used, the context in which
it is used
and the purpose of the document concerned. Unterhalter AJA, in
Capitec
Bank Holdings Limited and Another v Coral Lagoon Investments 194
(Pty) Ltd and Others
,
[17]
added the following:
[18]
‘
I
would only add that the triad of text, context and purpose should not
be used in a mechanical fashion. It is the relationship
between the
words used, the concepts expressed by those words and the place of
the contested provision within the scheme of the
agreement (or
instrument) as a whole that constitutes the enterprise by recourse to
which a coherent and salient interpretation
is determined. As
Endumeni
emphasized, citing well-known cases, “[t]he inevitable point of
departure is the language of the provision itself”.’
[44]
I commence with the words used. Section 25(1) envisages two separate
situations. The first does
not involve a transfer of the entitlement
but the second does. In the first part of s 25(1), a water management
institution is
empowered, at the request of a person entitled to use
water for irrigation, to allow that person to use that water,
temporarily,
for a different purpose. No third party involvement
arises in this instance.
[45]
In the second part of s 25(1), however, a water management
institution is empowered to allow
the entitlement-holder, on a
temporary basis, ‘to allow the use of some or all of that water
on another property in the same
vicinity for the same or a similar
purpose’. This contemplates a transfer from the
entitlement-holder to a third party. If
the intention had been only
to allow the entitlement-holder to temporarily use their own water on
a second property owned or controlled
by them, the section would not
have spoken of the water management institution allowing the
entitlement-holder to allow that use.
The section would simply have
said that the water management institution ‘may allow a person
authorised to use water for
irrigation to use some or all of that
water on another property in the same vicinity for the same or a
similar purpose’.
[46]
The first use of the word ‘allow’ in s 25(1) has
reference to who the water management
institution may ‘allow’,
or authorise, namely the entitlement-holder. The second use of the
word refers to what the
entitlement-holder may allow, namely the use
of the water on another property in the vicinity of their own
property. That second
use of the word ‘allow’ cannot
refer to a temporary transfer of water use from one property to
another owned or controlled
by the entitlement holder. It makes no
sense to seek the water management institution’s approval for
the entitlement-holder
to allow themself to use the water on another
of their own properties.
[47]
Section 25 deals, according to its heading, with transfers of water
use authorisations. If, in
s 25(1), the temporary transfer of water
use entitlements includes transfers to third parties, I cannot see
any basis for the same
not applying to the mechanism for permanent
transfers created by s 25(2), namely surrender and application. It
would be incongruous
if the transfer of water use entitlements bore
such divergent meanings in s 25(1) and s 25(2), particularly in the
light of the
assumption that when a word is used in legislation, it
bears the same meaning wherever it appears.
[19]
Section 25(2) creates the mechanism for a permanent transfer of water
use entitlements. One party – the entitlement-holder
–
conditionally surrenders their entitlement, while the other party –
the prospective entitlement-holder – applies
for the licence.
And if the licence application is not approved by the responsible
authority, the surrender ceases to have effect.
The effect of s 25(2)
was described thus by Pretorius J in
Trustees
for the Time Being of the Lucas Scheepers Trust and Others v MEC for
the Department of Water Affairs, Gauteng and Others
:
[20]
‘
Although
parties can agree that the water entitlement of one user may be used
by another farmer on another farm, section 25(2)
(b)
sets out clearly that where one party surrenders his entitlement for
use of water from the same source in respect of other land,
it only
becomes effective if and when an application is granted. A mere
agreement between the parties, as in this instance, does
not
suffice.’
[48]
Section 25 does not stand alone. It must be viewed within the broader
context of the statute
of which it is part. There are two strong
indications, in s 26 and s 29, that support the meaning that I have
given above. Section
26(1)
(l)
empowers the Minister to make regulations ‘relating to
transactions in respect of authorisations to use water’, the

precise subject-matter of s 25. The
Concise
Oxford English Dictionary
defines ‘transaction’ to mean ‘an instance of
buying or selling’; ‘the action of conducting business’;

‘an exchange or interaction between people’. Each of
these meanings contemplates two parties at least being involved.
One
does not transact with oneself. (Where the word ‘transfer’
is used in other sections, albeit in different contexts
from the
transfer of water use entitlements, a transfer from one person to
another is clearly contemplated.
[21]
)
[49]
Secondly, s 29 authorises the attaching of conditions to licences.
Section 29(2) provides that
one such condition may be the payment of
compensation, where there has been an agreement to this effect ‘in
terms of any
arrangements to use water’. The payment of
compensation must envisage a quid pro quo payable by one person to
another in
respect of a water use transaction; and that in turn can
only refer to a transaction involving the transfer of water use
entitlements
pursuant to s 25. In
Ramah
Farming v Great Fish River Water Users Association and Others
[22]
Griffiths J said the following with regard to the effect of s 29(2)
on the meaning of s 25(2):
‘
This
subsection appears to acknowledge that it is lawful in terms of the
Act to enter into a private law transaction relating to
the use of
water with another person and that, when this is done, it is in order
for such an arrangement to include the payment
of compensation. It
seems to me that the provisions of subsection 29(2) dovetail with
those of subsection 25(2). The “licensee”
mentioned in
subsection 29(2) can only refer to a party who has been successful in
obtaining a licence, who would typically be
the applicant in the
licence application referred to in subsection 25(2)
(a)
.
The “another” referred to in subsection 29(2) can only be
the holder of a water use entitlement which qualified to
form the
basis of an arrangement which entailed that the successful licensee
could use the water in return for payment of compensation.
Typically,
this would be the surrendering party referred to in subsection
25(2).’
I agree with
Griffiths J’s analysis. On its own, s 29(2) is a compellingly
strong indication that the transfer of water use
entitlements from
one person to another is contemplated by s 25(2).
[50]
I turn now to consider whether the interpretation that has emerged so
far is consistent with
the purposes of the NWA. One of the purposes
of the NWA set out in s 2 is that of ‘promoting the efficient,
sustainable and
beneficial use of water in the public interest’;
[23]
while another is facilitating economic development.
[24]
In terms of s 3(2), the Minister is placed under a duty to ensure
that water is used beneficially. And, in terms of s 27(1), when
a
decision is taken on whether to grant or refuse a licence, the
responsible authority must give consideration to ‘the efficient

and beneficial use of water in the public interest’. The
interpretation of s 25 that allows for transfers of water use
entitlements
from one person to another is, it seems to me, in
harmony with these provisions, speaking to the efficient and
beneficial use of
water, in particular, and of economic development.
When a water use entitlement has been made, the person to whom it was
granted
should use it optimally. If they cannot or no longer wish to,
or have excess water to their needs, rather than that water going
to
waste, as it were, a transfer to someone else who is going to use it
beneficially contributes to the attainment of the purposes
of the
NWA.
[51]
Two final points need to be made. The first is that the 1997
White
Paper on a National Water Policy
that preceded and informed the content of the NWA had stated that
while, in the new legislation, water use allocations would no
longer
be permanent as in the past,
[25]
provision would be made to ‘enable transfer or trade of these
rights between users, with Ministerial consent’. The
second
point is connected. It is that the transfer of rights similar to
water use entitlements, where the regulation of those rights
involves
the public interest, is common-place and has been for years. Mining
rights,
[26]
commercial fishing
rights,
[27]
the right to trade
in liquor
[28]
and rights to
engage in road transportation,
[29]
to name a few, are all transferable from one party to another with
the consent of the regulatory authority. There is, in other
words,
nothing jarring about an interpretation that s 25 of the NWA allows
for the transfer of water use entitlements with the
approval of the
responsible authority. Such an interpretation is consistent with
comparable regulatory schemes.
[52]
It is evident from the above that both s 25(1) and s 25(2)
contemplate and allow for the transfer
of water use entitlements,
temporarily and permanently respectively, from a holder to a third
party. I shall, at the conclusion
of this judgment make declaratory
orders to this effect. I turn now to the closely related issue of
whether the trade in water
use entitlements is lawful or not.
May people trade
in water?
[53]
In considering whether people could trade water use entitlements, the
full bench’s starting
point was to pose the question whether
the NWA ‘permits the sale of, or transfer in the water use
entitlements’. It
then answered this question by holding that
‘there is no authority in the Act permitting holders of
entitlements to sell
their entitlements’.
[54]
The full bench’s approach was erroneous. It asked itself the
wrong question and appears
to have conflated the way in which the law
regulates the conduct of public bodies, on the one hand, and private
individuals, on
the other. The true distinction was drawn thus by
Laws J in
R
v Somerset County Council, ex parte Fewings and Others
:
[30]
‘
Public
bodies and private persons are both subject to the rule of law;
nothing could be more elementary. But the principles which
govern
their relationships with the law are wholly different. For private
persons, the rule is that you may do anything you choose
which the
law does not prohibit. It means that the freedoms of private citizens
are not conditional upon some distinct and affirmative
justification
for which he must burrow in the law books. Such a notion would be
anathema to our English legal traditions. But for
public bodies the
rule is opposite, and so of another character altogether.  It is
that any action to be taken must be justified
by positive law.’
[55]
The idea that a private individual may do anything that the law does
not forbid fits with another
important freedom. It is the freedom of
contract, which ‘entails a general freedom to choose whether or
not to contract,
with whom to contract, and on what terms to
contract’.
[31]
Public
policy ‘generally favours the utmost freedom of contract’.
[32]
[56]
In
Fick
v Woolcott and Ohlsson’s Cape Breweries Ltd
,
[33]
the nature of a liquor licence and its transferability was in issue.
Innes J described a liquor licence as a ‘privilege granted
to a
particular person to sell liquor at a particular place’; and
that this ‘privilege’ is personal to the licensee
in the
sense that ‘it involves the exercise by the authorities of a
delectus
personae
,
so that he would have no power to assign his licence, were there no
statutory provision for its transfer’.
[34]
He proceeded to consider the transfer of the licence and the nature
of agreement between the licensee and a third party. He held:
[35]
‘
And
the law provides that the transfer of a licence can only be effected
by the authority which sanctioned its issue. Contractual
undertakings
on the part of a holder to transfer his licence to some other person
on the happening of certain contingencies are
of frequent occurrence.
But the expression, though convenient, is inaccurate. No holder can
transfer his licence; that is the sole
prerogative of the Licensing
Court. So that the only way to give any effect to such an undertaking
is to treat it as an agreement
by the promisor to exercise in favour
of the promisee such right to apply for a transfer as the statute
gives him, and to do all
things necessary on his part to enable the
Licensing Court to deal with the application. And that is what, in my
opinion, an agreement
to transfer a licence amounts to.’
[57]
The full bench appears to have decided that
all
agreements in
which water use entitlements are transferred are contrary to public
policy. I am of the view that it erred in this
respect, for the
following reasons.
[58]
It held that trading in water use entitlements was contrary to s 2 –
the purposes of the
NWA. Quite what those purposes were that were in
conflict with trading in water use entitlements were not specified,
and neither
was any reference made to any evidence in this regard. It
assumed that trading in water use entitlements was discriminatory but

did not support this conclusion with any evidence. This assertion
appeared to be based on the idea that many people could not afford
to
pay the commercial value of water use. I do not understand how this
economic reality can amount to discrimination.
[59]
The full bench ignored the regulatory framework that the NWA put in
place to ensure that transfers
of water use entitlements did not have
such effects. That is precisely why no transfer of a water use
entitlement may occur without
the approval of the responsible
authority, after they have considered and weighed all the
considerations relevant to the decision
in terms of s 27(1). In this
way, the purposes of the NWA are safeguarded and the public interest
is furthered. Put otherwise,
if a particular application for transfer
is indeed offensive to one or more of the purposes of the NWA, the
responsible authority
will not grant its approval for the transfer.
That, it seems to me, is a complete answer to the full bench’s
objections to
people trading in water use entitlements.
[60]
The full bench also appeared to labour under a misapprehension as to
the effect of water use
transactions. Those transactions do not have
the exclusionary effect suggested by it because the water in issue
has been allocated
in terms of the NWA. The right to use that
particular water was granted to the entitlement-holder in terms of
the NWA, after the
responsible authority applied their mind to the
criteria listed in s 27(1). When the entitlement-holder surrenders
the entitlement
to facilitate a transfer application, the entitlement
goes to the transferee, if the transfer is approved by the
responsible authority,
or remains with the entitlement-holder if the
transfer is not approved. At no stage in the process is the water use
entitlement
available for allocation to anyone else. No water becomes
available for re-distribution. As a result, the transaction, whether
successful or not, deprives no-one of access to water.
[61]
For the above reasons, I conclude that the full bench erred in
finding that trading in water
use entitlements is unlawful.
Exhaustion of
internal remedies
[62]
A decision to grant or refuse a licence is an administrative action
as defined in the Promotion
of Administrative Justice Act 3 of 2000
(the PAJA).
[36]
Section
7(2)
(a)
of the PAJA requires the exhaustion of any internal remedy that is
provided for prior to a person applying to court for the review
of an
administrative action. In terms of s 7(2)
(c)
,
however, a court may exempt a person from the obligation to exhaust
an internal remedy in exceptional circumstances in the interest
of
justice.
[63]
Both the
Lötter
and the
Wiid
cases involved
applications for the review and setting aside of refusals by the
Director-General to grant the transfer of licences,
in addition to
the declarators that were sought as to the meaning of s 25 of the
NWA. In neither case was the internal remedy of
an appeal to a Water
Tribunal exhausted. In both cases, exemption from that obligation was
sought.
[64]
The full bench only granted exemption in respect of the applications
for declaratory orders,
and not in respect of the review and setting
aside of the decisions made, on the version of the applicants in
Lötter
and
Wiid
, on the basis of the incorrect
interpretation of s 25 of the NWA. The reason for the full bench to
draw this distinction is, with
respect, opaque.
[65]
All of the parties were of the view that the issues involved, being
quintessentially legal in
nature, and that what was required was a
definitive, binding interpretation of s 25 of the NWA by a court. It
was equally clear
that dealing with these issues in a Water Tribunal
would only waste time and would not produce a definitive, binding
determination
of the meaning of the section. It is evident that when
a long-standing, universally accepted interpretation of a statutory
provision
is suddenly interpreted differently, 20 years into the life
of the statute, with far-reaching social and economic consequences
for a large number of people throughout the country, exceptional
circumstances arise; and the interests of justice require a court
to
be engaged as soon as reasonably possible to resolve the dispute. In
the light of the close connection between the declaratory
relief
sought and the setting aside of the impugned decisions, the full
bench erred in failing to grant unconditional exemptions
from the
obligation to exhaust internal remedies.
Conclusion
[66]
In the result, all three appeals must succeed. The orders made by the
full bench will have to
be set aside. In their place, a declarator in
respect of the meaning of s 25 of the NWA will be made in all three
cases, and the
decisions made by the Director-General on the basis of
his erroneous interpretation of s 25 will be reviewed and set aside
as those
decisions were materially influenced by an error of law. The
full bench’s orders granting partial exemptions in terms of s

7(2) of the PAJA will be replaced with orders granting exemptions in
unrestricted terms.
[67]
With regard to costs, only the Minister of Water and Sanitation and
the Director- General of
the Department of Water and Sanitation
opposed the applications in the high court and this appeal. They
should be ordered to pay
the appellants’ costs in both courts.
[68]
In the light of the similarities in the three cases, I shall make a
composite order which will refer
to specific cases when necessary. I
accordingly make the following order:
1. The appeal in
each case is upheld with costs, including the costs of two counsel,
to be paid by the Minister of Water and Sanitation
and the
Director-General of the Department of Water and Sanitation.
2. The order of the
full bench in respect of each case is set aside and replaced with the
following order.
‘
1.
It is declared that, in terms of s 25(1) of the National Water Act 36
of 1998 (the NWA), a water management institution
is empowered, at
the request of a person authorized in terms of the NWA to use water
for irrigation:
(a) to allow that
person on a temporary basis, and on such conditions as the water
management institution determines, to use some
or all of that water
for a different purpose; or
(b) to allow that
person to allow a third party the use of some or all of that water on
another property in the same vicinity, for
the same or a similar
purpose.
2.  It is
declared that, in terms of s 25(2) of the NWA, a person holding an
entitlement to use water from a water resource
in respect of any land
may surrender that entitlement in whole or in part:
(a) in order to
facilitate a licence application by the holder of the entitlement or
of a third party in terms of s 41 of the NWA
for the use of that
water in respect of other land owned or controlled either by the
holder of the entitlement or the third party;
(b) that the
surrender of the entitlement by the holder of the entitlement only
becomes effective in the event of the licence application,
in terms
of s 41 of the NWA, of the holder of the entitlement or of the third
party being approved by the responsible authority;
(c) an agreement
between the holder of an entitlement to use water and a third party,
in respect of the surrender of the entitlement
by the former to
facilitate an application for a licence in respect thereof by the
latter, in return for payment of compensation,
is not prohibited.
3.   In
the
Lötter
and
Wiid
cases:
(a) the applicants
are exempted, in terms of
s 7(2)
(c)
of the
Promotion of
Administrative Justice Act 3 of 2000
from having to exhaust their
internal remedies; and
(b) the decisions
taken by the Director-General, Department of Water and Sanitation to
refuse the applications of the applicants
for licences in terms of
s
4
1 of the NWA are reviewed and set aside.
4.  The
Minister of Water and Sanitation and the Director-General of the
Department of Water and Sanitation are ordered to
pay the costs of
the applicants, including the costs of two counsel.’
____________________
C PLASKET
JUDGE OF APPEAL
Makgoka
JA (dissenting)
[69]
I have read the majority judgment prepared by my Colleague Plasket
JA, which has set out the essential
facts which gave rise to the
three appeals before us. For context to this judgment, I summarise
them as follows. In the Lötter
and Wiid appeals, holders of
water use entitlement certificates, Britzkraal
(Pty)
Ltd (Britzkraal)
and
GP Viljoen Trust,
are the holders of licences to use water, styled water use
entitlements in the Act,
in
accordance with the registration certificates issued by the
Department
of Water
and Sanitation (the department). They concluded sale agreements with
the appellants in those appeals, in terms of which
the holders of
water use entitlements, surrendered their entitlements to the
department, represented by a ‘responsible authority’,
[37]
in return for compensation.
[70]
In the
Lötter
appeal, the purchase
price was R1 950 000 (One Million Nine Hundred and Fifty Thousand
Rand). In the Wiid matter, there were three
agreements of sale in
terms of which the water use entitlements were sold, respectively for
R5 920 000 (Five Million Nine
Hundred and Twenty Thousand
Rands); R15 413 333 (Fifteen Million Four Hundred and Thirteen
Thousand Three Hundred and Thirty-Three
Rand); and R2 666 667
(Two Million Six Hundred and Sixty-Six Thousand and Six Hundred and
Sixty-Seven Rand). All the applications
were rejected by the
Director-General on the basis that s 25(2) of the National Water Act
38 of 1998 (the Act) did not ‘
make provision
for the trading or transferring of water use entitlements between two
separate legal entities’.
[71]
I
n t
he SAAFWUA matter
t
he
agreements between the holders of water use entitlements,
Eagle’s
Nest Investment 3 CC and Thusano Empowerment Farm (Pty) Ltd, and the
third parties to whom they sought to surrender
their entitlements,
met the same fate. All of the appellants’ applications for
declaratory orders to the effect that s 25(2)
authorises trading in
water use entitlements were dismissed by the full bench of the
Gauteng Division of the High Court, Pretoria
(the full bench), but
which subsequently granted leave to this Court.
[72]
I agree with the order of the majority judgment, except for
paragraphs 2(c) and 3(b) thereof. In terms
of paragraph 2(c) of the
order, the majority declares that an agreement between the holder of
an entitlement to use water and a
third party, in respect of the
surrender of the entitlement by the former to facilitate an
application for a licence in respect
thereof by the latter, in return
for payment of compensation, is not prohibited by s 25(2) of the Act.
In paragraph 3(b) of the
order, the decisions taken by the
Director-General to refuse the applications of the applicants for
licences in terms of s 41 of
the Act, are reviewed and set aside.
[73]
These paragraphs of the order of the majority judgment rest on an
interpretation of s 25(2) of the
Act with which I do not agree. I
write separately to explain my disagreement. Our difference regarding
that subsection is a narrow
one. For present purposes, I am prepared
to accept an interpretation of s 25 of the Act that allows for the
involvement of third
parties. That is, s 25(1) permits the holder of
a water use entitlement to allow a third party the use of water for a
purpose different
from that stated in the water use entitlement, or
to use it on another property, for the same or a similar purpose.
[74]
Similarly, I am prepared to accept that the surrender of a water use
entitlement envisaged in s 25(2)
may be made to a third party.
This,
however, is not the end of the enquiry, and
this is
where I part ways with the majority.
I
t
does not follow, in my view, that a holder of a water use entitlement
and a third party are entitled to conclude a private commercial

agreement in terms of which they trade in water for compensation, and
to have such agreement authorised by a water management institution.
[75]
Accordingly, I take the view that the decisions taken by the
Director-General to refuse each
of the applications in terms of s 41
of the Act in the Lötter and Wiid appeals, were correct and
should not be disturbed.
I would thus not allow those appeals insofar
as these two aspects are concerned.
[76]
Shorn of legal technicalities, at the heart of the appeals is whether
the Act permits a person holding
a water use entitlement from a water
resource in respect of any land, to sell such an entitlement. In
other words, whether the
Act permits trading in water use
entitlements. The appellants have identified s 25 of the Act as the
empowering provision for that
purpose. This involves the
interpretation of that section. The principles which should inform
that exercise are settled. The provision
must be construed by a
conventional process of statutory interpretation, which is that the
words in a statute must be given their
ordinary grammatical meaning,
unless to do so would result in an absurdity. In
Cool
Ideas
[38]
the Constitutional Court put three interrelated riders to this
general principle, namely that: (a) statutory provisions should

always be interpreted purposively; (b) the relevant statutory
provision must be properly contextualised; and (c) all statutes must

be construed consistently with the Constitution.
[39]
[77]
Consideration should also 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 they are directed
and the material known
to those responsible for enactment of the
Act.
[40]
Section 39(2) of the Constitution enjoins courts, when interpreting
any legislation, to promote the spirit, purport and objects
of the
Bill of Rights. Where the court is faced with two interpretations,
one constitutionally valid and the other not, the court
must adopt
the constitutionally valid interpretation provided that to do so
would not unduly strain the language of the statute.
[41]
On the other hand, where a provision is reasonably capable of two
interpretations, the one that better promotes the spirit, purport
and
objects of the Bill of Rights should be adopted.
[42]
Courts must also adopt a generous and purposive approach.
[43]
[78]
The historical context within which a particular provision operated,
or in response to which it was enacted,
is also an important
interpretative tool.
[44]
Thus, where applicable, our history may not be ignored in that
process.
As
explained by Moseneke DCJ in
Goedgelegen
‘[i]
t
is helpful, where appropriate, to pay due attention to the social and
historical background of the legislation.’
[45]
In the present case, it is useful, therefore, to state the obvious
point from the onset. Access to water has historically been
the
privilege of predominantly white people with access to land and to
economic power. It seems to be common cause that the appellants
in
the three appeals fall into that category.  The policy
considerations underpinning the Act sought to, among others, address

the racial imbalances brought about by colonialism and apartheid.
[79]
The Act was preceded by
a White Paper on a
National Water Policy for South Africa (1997) (the White Paper).
Outlining the fundamental principles and
objectives for a new water law for South Africa in the White Paper,
the then Minister of
Water Affairs and Forestry, Professor Kader
Asmal, said:
‘
South
Africa’s water law comes out of a history of conquest and
expansion. The colonial lawmakers tried to use the rules of
the
well-watered colonising countries of Europe in the dry and variable
climate of Southern Africa. They harnessed the law, and
the water, in
the interests of a dominant class and group which had privileged
access to land and economic power.’
In
para 2.1.4 titled ‘The Right to Equality’ the White Paper
points out:
‘
[A]partheid
was an inefficient racial spoils system under which the distribution
of water-use was racially biased, and access to
water and the
benefits from its use a privilege of those with access to land and
political and economic power. In the context of
the reform of the
water law, the right to equality requires equitable access by all
South Africans to, and benefit from the nation’s
water
resources, and an end to discrimination with regard to access to
water on the basis of race, class or gender.’
[80]
The Act repealed its predecessor, the Water Act 54 of 1956. Section 2
of the 1956 Act provided:
‘
A
person who is, as contemplated in subsection (1), entitled to the use
and enjoyment of private water found on any land of which
he is the
owner, shall not, except under the authority of a permit from the
Minister and on such conditions as may be specified
in that permit,
sell, give or otherwise dispose of such water to any other person for
use on any other land, or convey such water
for his own use beyond
the boundaries of the land on which such water is found.’
[81]
With this historical context in mind, I turn to the aspirational
provisions of the Act. The Act
is a progressive piece of legislation.
Discernable in it is a clear intention on the part of the Legislature
to break with the
racist water allocation and use of the colonial and
apartheid past. Thus, the policy considerations reflected in the
White Paper
referred to earlier, later found expression in the Act.
For example, the preamble to the Act recognises, among many
fundamentals,
that water is a ‘scarce and unevenly distributed
national resource’, which while it ‘belongs to all
people, the
discriminatory laws and practices of the past have
prevented equal access to water, and use of water resources’.
[82]     The
purpose of the Act is set out in s 2 as being to ‘ensure that
the nation’s water resources
are protected, used, developed,
conserved, managed and controlled’ in ways which take into
account certain factors, among
which is to redress the results of
past racial and gender discrimination (s 2
(c)
). To achieve
this purpose, the Act envisages the establishment of suitable
institutions and to ensure that they have appropriate
community,
racial and gender representation.
[83]
I turn now to s 25, which reads as follows:
‘
Transfer
of water use authorisations.
(1) A water management
institution may, at the request of a person authorised to use water
for irrigation under this Act, allow
that person on a temporary basis
and on such conditions as the water management institution may
determine, to use some or all of
that water for a different purpose,
or to allow the use of some or all that water on another property in
the same vicinity for
the same or a similar purpose.
(2) A person holding an
entitlement to use water from a water resource in respect of any land
may surrender that entitlement or
part of that entitlement—
(a)
in order to facilitate a particular license application under section
41 for the use
of water from the same resource in respect of other
land; and
(b)
On condition that the surrender only becomes effective if and when
such application is granted.’
[84]
This section concerns only
two
aspects. First, in subsection (1), the temporary use of irrigation
water for a different purpose or on a different land, other
than that
stated in the licence.
Second,
in subsection (2), the surrender of a water use entitlement, subject
to two provisos,
namely that an application in terms thereof
must be ‘in order to facilitate a particular license
application under s 41’,
and that
the
surrender ‘only becomes effective if and when such application
is granted’.
[85]
On its plain reading, s 25 does not provide for compensation when a
holder of a water use entitlement
surrenders such entitlement. Its
provisions are clear and unambiguous. However, even if that is so,
one must pay due regard to
the Act as a whole, especially the other
relevant sections, to discern whether compensation is authorised when
a water use entitlement
is surrendered.
Section
25(2) is directly linked to s 41, which, in turn, sets out the
procedure
for Iicence applications. Section 41(1)
reads:
‘
An
application for a Iicence for water use must—
(a)
be made in
the form;
(b)
contain the information; and
(c)
be
accompanied by the processing fee,
determined
by the responsible authority.
[86]
Section 41(2) empowers a responsible authority, among others, to call
for further information, conduct
its own investigations on the likely
effect of the proposed licence, invite written comments from any
organ of state which, or
person who, has an interest in the matter.
It is instructive that the selling price in respect of a water use
entitlement, or compensation
is not specified or foreshadowed in any
of the subsections of s 41. Thus, both s 25(2) and s 41, which are
expressly interlinked,
bear no reference to water trading.
[87]
Section 27(1) sets out considerations which a responsible authority
must take into account when issuing
general authorisations and
licences. This section has been quoted in full in the majority
judgment, but to recap, the factors which
a responsible authority
must take into account include the following:
‘
(a)
existing lawful water uses;
(b)
the need to
redress the results of past racial and gender discrimination;
(c)
efficient and
beneficial use of water in the public interest;
(d)
the
socio-economic impact—
(i)
of the water use or uses if authorised;
(ii)
of the failure to authorise the water use or uses;
(e)
any catchment
management strategy applicable to the relevant water resource;
(f)
the likely
effect of the water use to be authorised on the water resource and on
other water users;
(g)
the class and
the resource quality objectives of the water resource;
(h)
investments
already made and to be made, by the water user in respect of the
water use in question;
(i)
the strategic
importance of the water use to be authorised;
(j)
the quality
of water in the water resource which may be required for the Reserve
and for meeting international obligations; and
(k)
the probable
duration of any undertaking which a water use is to be authorised.’
[88]     Of
course, the list is not exhaustive, as the wording of s 27(1)
suggests that the responsible authority
may take into account other
factors.  As is clear, compensation for surrender of a water use
entitlement is not one of the
specified factors, and none of the
specified factors in terms of s 27(1) comes even remotely close to
it. Being such an important
factor, if it was its intention that it
be considered, the legislature would certainly have included
compensation for surrender
of water use entitlements as one of the
specified factors in the section.
[89]
Two other provisions which, according to the appellants, provide
further indication that trading in water use entitlements
is
authorised in the Act, are subsections 26(
l
)(i)-(iii) and
29(2). I make this broad observation regarding these two subsections.
These sub-sections are of a procedural, rather
than a substantive,
nature. They do not have a ‘life of their own’, and do
not confer rights in respect of water authorisations,
like s 25(2)
does. Viewed in this light, the authority to allow for compensation
in respect of surrender of water use entitlement
must be located
within s 25(2) as the empowering provision. It follows that the role
of these subsections in the interpretive exercise
of s 25(2) should
not be overstated. If the appellants are not correct on their
interpretation of s 25(2) as an empowering provision,
these
subsections would not be of any assistance to them. The converse is
also true. For this reason, I shall consider them pithily.
[90]
Section 26(
l
)(i)-(iii)
empowers the Minister to make regulations relating
to ‘transactions’ in respect of authorisations to use
water. These
include (a) the circumstances under which a transaction
may be permitted; (b) the conditions subject to which a transaction
may
take place; and (c) the procedure to deal with a transaction. I
have no qualm with the conclusion of the majority that the
‘transaction’
in this subsection refers to the subject
matter of s 25(2). But, consistent with the view I take of s 25(2),
the subject-matter
of that subsection does not include compensation
when water use entitlements are surrendered or transferred.
[91]
On my interpretation of s 25(2), the word ‘transaction’
in s 26(
l
)(i)-(iii) refers to the surrender of water use
entitlements between the holders of such entitlements and third
parties, but does
not include compensation for such surrender. I am
therefore unable to agree that the word ‘transaction’
should be determined
by recourse to a dictionary definition. Its
meaning should be found in the semantic context in which it is used
in the subsection.
I have already indicated that this provision is a
procedural one, and does not authorise compensation when a water use
entitlement
is surrendered in s 25(2) read with s 41. Viewed in this
light, it could be that, in the absence of an empowering provision in
the Act, the Minister could well act ultra vires her powers should
she publish the regulations envisaged in this subsection.
[92]
The appellants set much store by s 29(2), which provides that if ‘a
licensee has agreed to pay compensation
to another person in terms of
any arrangement to use water, the responsible authority may make the
obligation to pay compensation
a condition of the licence’. The
appellants draw a link between this subsection and s 25(2), which
construction the majority
agrees with. I see it differently. Rather
than a confluence between the two subsections, instead, I see a gulf
between them, for
the following reasons.
[93]     The
word ‘compensation’ does not appear in s 25(2) or in any
of the other sections dealing
with water use authorisations. Section
25(2) concerns the ‘surrender’ of a water use
entitlement, which is a clear
and narrow concept. On the other hand,
s 29(2) refers to an ‘arrangement to use water’ which, on
a generous construction,
could possibly be relevant to s 25(1),
rather than s 25(2). I say so because as explained already, s 25(1)
allows a holder of a
water entitlement, on a temporary basis, to use
the allocated water, either for a different purpose, or on a
different property
for the same or similar purpose. To my mind, that
fits neatly into the concept of ‘an arrangement’, which
is essentially
what the scheme of s 25(1) is all about, as opposed to
a ‘surrender’, or ‘the giving away of an
entitlement’,
which is the subject-matter of s 25(2).
[94]    The
language of s 25(2) and s 29(2) is so different as to suggest that
the Legislature intended them to address
totally distinct situations.
If it had intended for the two subsections to dovetail, the
Legislature would have used consistent
language in both of them.
Furthermore, a provision such as this would ordinarily, and in
express terms, be linked to an empowering
provision elsewhere in a
statute, or vice versa, as is the case with s 25(2) and s 41, as
alluded to already. In this case, there
is no such reference between
s 25(2) as the empowering provision, and s 29(2) as a complementary
provision.
[95]
It was also submitted on behalf of the
Lötter
appellants that the prohibition against receiving compensation for
surrendering water use entitlements, was contrary to the provisions

of s 25 of the Constitution, which guarantees property rights and
prohibits arbitrary deprivation of property.
[46]
This submission is misconceived. The applicants are not being
deprived of any property. A holder of a water use entitlement
voluntarily
surrenders his or her entitlement in terms of the
legislative framework of s 25(2). That section does not make
provision for him
or her to receive compensation for such surrender.
There is no attack against the constitutionality of s 25(2).
[96]
The fact remains that the holder of such right obtains a statutory
personal privilege to use a scarce national
resource. This is what
distinguishes water use entitlements from other licenses such as
liquor and taxi licenses. The holders of
those licenses essentially
purchase them at a premium, whereas the holder of a water use
entitlement obtains it for free, only
having to pay a licence fee of
R114. Furthermore, the holders of the other licenses do not acquire
them in respect of a scarce
national resource. All these explain why
there is nothing objectionable when the holders of such licences
decide to ‘sell’
them at whatever market related prices
they decide on.
[97]
As I see it, the insurmountable difficulty for the appellants is that
there is no empowering provision in
the Act that expressly authorises
payment of compensation when water use entitlements are surrendered.
To find that there is, one
has to imply it. It must be assumed that
trading in water use entitlements was upper-most in the minds of
those responsible for
the drafting of the Act, given that in the
repealed 1956 Act, there was express reference to it.
Furthermore, the White Paper
noted that provision would be made in
the Act to enable transfer or trade of water rights between users,
with Ministerial consent.
However, when the Bill was finally enacted,
express provision was made only for transfer or surrender of water
use entitlements
in s 25(2), but not for trading in water use
entitlements. Had it been the Legislature’s intention that such
a provision
be included, it would expressly have done so, and s 25(2)
would have been a good place for it. Given the historical context
referred
to earlier, and its undoubted prominence,
it
would be surprising if as important a matter as trade in water rights
were to be left to be implied.
[98]
What is more, the appellants’ interpretation offends one of the
key stated purposes of the Act –
s 2(
c
),
in that it perpetuates the results of past racial discrimination,
contrary to the commitment in that subsection to redress those

injustices. Although this is not the only purpose of the Act,
considering the Act as a whole, including its historical context,

this purpose is of some significant importance. This is acutely
demonstrated in the present case, in which the water use entitlements

were sold for vast sums of money: in the Lötter matter,
R1
950 000; and R5 920 000; R15 413 333; and R2 666 667,
respectively, in the Wiid matter. It must be borne in mind that
to
acquire a water use entitlement, an applicant is required to pay an
administration fee of about R114. How that right suddenly
becomes
capable of being sold for R15 000 000, is neither clear,
nor explained.
[99]
The appellants take issue with the full bench’s reasoning that
the
sale of water use entitlements in private
agreements, results in discrimination. They say there is no evidence
of such discrimination.
I will explain why there is. Only
historically advantaged farmers (overwhelmingly white) would be in a
position to afford the unilaterally
determined prices, to the
exclusion of everyone else. On the facts of these appeals, I agree
with the reasoning of the full bench.
The trade in water use
entitlements would perpetuate colonial and apartheid water allocation
enclaves and patterns. That is discrimination,
and it is glaring.
Given the transformational nature of the Act, this
could never
have been the intention of the Legislature.
[100]
The appellants’ interpretation also offends s 3 of the Act. In
terms of s 3(1) the National Government,
through the Minister, is the
nation’s public trustee of water resources. The applicants have
not shown any provision of the
Act which entitles them to privately
set prices to sell an entitlement to use a national resource, without
the Minister’s
involvement or consent. Nor have the appellants
explained to the responsible authority, who is the Minister’s
designee, how
these purchase prices were arrived at. This certainly
emasculates the Minister’s role to regulate the use, flow and
control
of all water in the Republic. It reduces the role of national
government, represented by the Minister, to that of a rubber-stamp.

Furthermore,
in terms of s 3(2)
the
Minister is responsible to ensure that water is allocated equitably
and used beneficially in the public interest
. None of the
appellants has asserted public interest in respect of their
respective applications. These entitlements were sold
solely for
private farming purposes and for profit.
[101]
Section 1(3) provides that when interpreting a provision of this Act,
any reasonable interpretation which is consistent
with the purpose of
this Act as stated in section 2 must be preferred over any alternate
interpretation which is inconsistent with
this purpose. I find, in
the final analysis, that the interpretation propounded by the
appellants is totally inimical to the constitutional
values and the
policy considerations underlying the Act. For all these reasons, I
would disallow the appellants’ appeal to
the extent they sought
a declaratory order that s 25(2) allows trading in water use
entitlements and for the setting aside of the
Director-General’s
decisions in respect thereof.
T
MAKGOKA
JUDGE OF APPEAL
APPEARANCES:
For the appellants
in the
SAAWUA
appeal:
M M Oosthuizen SC (with
J Rust)
Instructed
by:

Fasken Attorneys, Johannesburg
Spangenberg,
Zietsman and Bloem Attorneys, Bloemfontein
For the appellants
in the
Lötter
and
Wiid
appeals:

G L Grobler SC (with J L Gildenhuys SC)
Instructed
by:

Groenewald Attorneys, Humansdorp
Couzyn,
Hertzog & Horak, Pretoria
Spangenberg,
Zietsman and Bloem Attorneys, Bloemfontein
For the
respondents:

R Ramawele SC (with K Magano and P Loselo)
Instructed by:

State Attorney, Pretoria
State Attorney,
Bloemfontein
[1]
An
entitlement is defined in s 1 of the NWA as ‘a right to use
water in terms of any provision of this Act or in terms of
an
instrument issued under this Act’.
[2]
Circular
no. 18 of 2001, issued by the Director-General of the Department
contained his interpretation of s 25 at the time. That

interpretation in respect of s 25(2) was to the effect that water
use rights could be ‘traded to a willing buyer on the
same
scheme or even outside the scheme if such trading can be facilitated
in terms of section 25 of the NWA’. The full
bench was not
correct when it said that the circular authorised trading in water
use entitlements. It is no more than the Director-General’s

understanding, at the time, of what s 25 meant. As explained above
in the
SAAWUA
matter, the Director-General now takes the view, expressed in
Circular No 1 of 2017, that s 25 means something else.
[3]
S v
Mostert and Another
[2009]
ZASCA 171
;
2010 (2) SA 586
(SCA) para 10.
[4]
Schedule
1 allows, for instance, for reasonable domestic use of water in a
person’s household, for small gardening not for
commercial
purposes and in cases of emergency, either for human consumption or
fire-fighting.
[5]
Section
32 defines an existing lawful water use as a water use that had been
in existence for at least two years before the NWA
came into
operation and which, inter alia, was authorized by a law in force
immediately before the commencement of the NWA.
[6]
Section
39 allows for the issuing of a general authorisation for a specific
geographical area either generally, in relation to
a specific water
resource or within a specified area.
[7]
It may
do so, in terms of s 22(1)
(c)
read with s 22(3) ‘if it is satisfied that the purpose of the
Act will be met by the grant of a licence, permit or other

authorization under any other law’.
[8]
Section 22(1)
(b)
.
[9]
Section 26(1)
(a)
.
[10]
Section 26(1)
(b)
.
[11]
Makhanya NO and
Another v Goede Wellington Boerdery (Pty) Ltd
[2012] ZASCA 205
;
[2012] 1 All SA 526
(SCA). See too
Guguletto
Family Trust v Chief Director, Water Use, Department of Water
Affairs and Forestry and Another
,
North Gauteng, Pretoria (case no. A566/10) 25 October 2011
(unreported) para 22.
[12]
Para 33.
[13]
Section 29(1)
(a)
.
[14]
Section 29(1)
(b)
.
[15]
Section 29(1)
(c).
[16]
Natal
Joint Municipal Pension Fund v Endumeni Municipality
[2012]
ZASCA 13
;
2012 (4) SA 593
(SCA) para 18.
[17]
Capitec
Bank Holdings Limited and Another v Coral Lagoon Investments 194
(Pty) Ltd and Others
[2021]
ZASCA 99; [2021] (3) All SA 647 (SCA).
[18]
Para
25.
[19]
S v
Dlamini; S v Dladla and Others; S v Joubert; S v Schietekat
[1999]
ZACC 8
;
1999 (4) SA 623
(CC);
1999 (7) BCLR 771
(CC) para 47. See
too L C Steyn
Die
Uitleg van Wette
(5 ed) (1981) at 126.
[20]
Trustees
for the Time Being of the Lucas Scheepers Trust and Others v MEC for
the Department of Water Affairs, Gauteng and Others
[2015]
ZAGPPHC 211 para 22.
[21]
See s
89 (transfer of assets and liabilities of catchment management
agencies); s 115 (transfer, sale or other disposal of government

waterworks); s 135 (transfer by a water management institution of
rights held in respect of improvements on land belonging to
another
person); and s 136 (transfer of personal servitudes held by the
Minister or a water management institution).
[22]
Ramah
Farming v Great Fish River Water Users Association
2021
(2) SA 547
(ECG) para 30.
[23]
Section
2
(d)
.
[24]
Section
2
(e)
.
[25]
See s
28(1)
(e)
which provides that a licence must specify ‘the licence
period, which may not exceed 40 years’.
[26]
Mineral
and Petroleum Resources Development Act 28 of 2002
,
s 11.
Note that
the scheme of this legislation is strikingly similar to the NWA in
the following senses. First,
s 3
vests custodianship of the
country’s minerals and petroleum products in the State.
Secondly, the transformatory objects
of this legislation, also set
out in
s 2
, are similar to those of the NWA.
[27]
Marine
Living Resources Act 18 of 1998
,
s 52.
Once again,
s 2
of this Act
contains transformatory objects that are similar to those of the
NWA.
[28]
Liquor
Act 27 of 1989, s 113;
Liquor Act 59 of 2003
,
s 15.
[29]
National Land Transport Act 5 of 2009
,
s 58
.
For a discussion of the transferability of road transportation
permits in terms of previous legislation, the Road Transportation

Act 74 of 1977, see Plasket ‘The Proprietary Nature of Road
Transportation Permits’ 1985
De
Rebus
619.
[30]
R v Somerset County
Council, ex parte Fewings and Others
[1995] 1 All ER 513
(QB) at 524e-g. See too
Clur
v Keil and Others
2012 (3) SA 50
(ECG) para 15; John Dugard
Human
Rights and the South African Legal Order
(1978) at 107-108; Lord Lester of Herne Hill QC and Lydia Clapinska
‘Human Rights and the British Constitution’ in
Jeffrey
Jowell and Dawn Oliver (eds)
The
Changing Constitution
(5 ed) (2004) 62 at 63; Stanley De Smith and Rodney Brazier
Constitutional and
Administrative Law
(7
ed) (1994) at 457.
[31]
Francois du Bois (ed)
Wille’s
Principles of South African Law
(9 ed) (2007) at 737.
[32]
Botha (now Griessel)
and Another v Finanscredit (Pty) Ltd
1989 (3) SA 773
(A) at 783A.
[33]
Fick
v Woolcott and Ohlsson’s Cape Breweries Ltd
1911
AD 214.
[34]
At
230. It is now accepted that such a licence, and the water use
entitlements with which this case is concerned, are regarded
by the
law as rights, not privileges; and that these types of
authorisations are regarded as a form of property, having a
commercial
value. See generally, C A Reich ‘The New Property’
(1964) 73
Yale
Law Journal
733;
Plasket (note 29) at 619-620.
[35]
At
230. See too
Aquatur
(Pty) Ltd v Sacks
1989 (1) SA 56
(A) at 64G-65D;
Shoprite
Checkers (Pty) Ltd v MEC for Economic Development, Eastern Cape and
Others
[2015] ZACC 23
;
2015 (6) SA 125
(CC);
2015 (9) BCLR 1052
(CC) paras
67-68.
[36]
Makhanya
NO and Another v Goede Wellington Boerdery (Pty) Ltd
(note
11).
[37]
The
‘responsible authority’ is defined in s 1(
xx
)
as follows:
‘
responsible
authority’, in relation to a specific power or specific duty
in respect of’ water uses mean-
(a)
if that power or duty has been assigned by the Minister to a
catchment management agency, that catchment agency; or
(b)
if that power or duty has not been so assigned, the Minister.’
[38]
Cool Ideas 1186 CC v
Hubbard and Another
[2014] ZACC 16
;
2014 (4) SA 474
(CC) para 28.
[39]
Constitution of the Republic of South Africa Act, 1996.
[40]
Natal
Joint Municipal Pension Fund v Endumeni Municipality
[2012]
ZASCA 13
;
[2012] 2 All SA 262
;
2012 (4) SA 593
(SCA) para 18.
[41]
Investigating
Directorate: Serious Economic Offences v Hyundai Motor Distributors
(Pty) Ltd: in re Hyundai Motor Distributors
(Pty) v Smit NO
[2000] ZACC 12
;
2001
(1) SA 545
(CC) paras 23-25.
[42]
Wary Holdings (Pty)
Ltd v Stalwo (Pty) and Another
[2008] ZACC 12
;
2009 (1) SA 337
(CC) paras 46, 84, 107.
[43]
Ferreira v Levin NO &
others; Vryenhoek & others v Powell NO & others
1996 (1) SA 984
(CC) para 46.
[44]
Executive Council,
Western Cape v Minister of Provincial Affairs and Constitutional
Development; Executive Council, KwaZulu-Natal
v President of the
Republic of South Africa
[1999] ZACC 13
;
2000 (1) SA 661
(CC) para 44.
[45]
Department of Land
Affairs v Goedgelegen Tropical Fruits (Pty) Ltd
[2007] ZACC 12
;
2007 (6) SA 199
(CC) para 53.
[46]
Section 25(1) provides that:
‘
No
one may be deprived of property except in terms of law of general
application, and no law may be permit deprivation of property.’