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[2015] ZAGPPHC 211
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Trustees of the Time Being of the Lucas Scheepers Trust, IT 633/96 and Others v MEC for the Department of Water Affairs, Gauteng and Others (40514/2013) [2015] ZAGPPHC 211 (17 April 2015)
IN
THE HIGH COURT OF SOUTH AFRICA
(GAUTENG
DIVISION, PRETORIA)
Case number:
40514/2013
Date: 17 April 2015
In the matter
between:
THE TRUSTEES OF
THE TIME BEING OF THE
LUCAS SCHEEPERS
TRUST, IT
633/96
...........................................................................
1
st
APPLICANT
THE TRUSTEES OF
THE TIME BEING OF THE
JJ SCHEEPERS
TRUST
......................................................................................................
2
nd
APPLICANT
LUCAS SCHEEPERS
N.O
...................................................................................................
3
rd
APPLICANT
MERRY MOLE
DEVELOPMENTS N.O. (PTY)
LTD
.....................................................
4
th
APPLICANT
And
MEC FOR THE
DEPARTMENT OF WATER AFFAIRS,
GAUTENG
..........................................................................................................................
1
st
RESPONDENT
MINISTER OF WATER
AFFAIRS AND
ENVIRONMENTAL
AFFAIRS
.......................................................................................
2
nd
RESPONDENT
REGIONAL HEAD FOR
THE DEPARTMENT
OF WATER AFFAIRS,
GAUTENG
...............................................................................
3
rd
RESPONDENT
REGIONAL HEAD FOR
THE DEPARTMENT
OF WATER AFFAIRS,
BLOEMFONTEIN
..................................................................
4
th
RESPONDENT
DIRECTOR GENERAL
FOR WATER AND
ENVIRONMENTAL
AFFAIRS
.......................................................................................
5
th
RESPONDENT
THE REGISTRAR OF
DEEDS
(BLOEMFONTEIN)
...................................................
6
th
RESPONDENT
JUDGMENT
PRETORIUS
J
.
[1] This is an
application for an order to declare section 25(1) of the National
Water Act 36 of 1998 (“the Act”) to
be inconsistent with
the provisions of sections 24 to 27 (excluding section 26) and
section 39 as read with section 195(1 )(b)
of the Constitution as it
fails to give effect to the provisions of the Bill of Rights as read
with section 195(1 )(b) of the Constitution.
[2]
The proposal is that the court proposes that section 25(1) of the Act
be amended by the deletion of the words “
irrigation
”
and
the substitution therewith of the word “
irrigation
or for any purpose
”
and
the deletion of the words “for
the
same or similar purpose
”
and
the substitution therewith of the words “for
such
purpose as the water management institution may determine".
[3] An alternative
prayer to the above proposal is that the provisions of section 25(1)
of the Act be referred to the National Legislature
in order for it to
rectify section 25(1) of the Act insofar as it is inconsistent with
the provisions of the Bill of Rights.
Background:
[4] The first
applicant is the owner of the farm known as Joffre and the remaining
Extent, portion 2 of the farm Denver 1285. This
application is in
relation to the farm Denver and its various subdivisions. The farm
Denver is not allowed to use any water for
irrigation purposes from
the Vaal RiverA/aal Dam at present.
[5] Previously
Denver was allowed, in terms of the repealed Water Act 54 of 1956, to
use public water drawn from the Vaal River
at a rate of 110 litres
per second and the quota allowed on Denver was 250 000m
3
which could be stored.
[6] The fourth
applicant received a permit to utilize water for industrial purposes.
The fourth applicant, the owner of Koppiesfontein,
intended to
establish a golf course on the property, but has failed to do so. The
fourth applicant is entitled to use 2 822m
3
water on a 24
hour per day basis, which is 676 216m
3
per annum, for
industrial purposes. This water is drawn from the Vaal RiverA/aal
Dam.
[7]
The first and second applicants entered into an oral agreement with
the fourth applicant where it was agreed that the fourth
applicant’s
entitlement to use industrial water was made available to the first
and second applicants for irrigation purposes
on the farm Denver. The
parties were
ad
idem
that
the water was suitable for irrigation. The first applicant, with the
assistance of the fourth applicant launched an application
to the
third respondent for the temporary transfer of Koppiesfontein’s
water use entitlement to Denver in terms of section
25(1) of the Act.
[8] On 30 November
2011 the third respondent declined the application setting out:
“
Portion
6 of the farm Koppiesfontein 478 IR has an existing lawful water use
of 2822.44m
3
/24
hr (676.216m
3
/annum)
for industrial purposes obtained in terms of Section 33(4) of the
NWA. The NWA makes provision for the temporary transfer
of irrigation
water use entitlements only
1
[9] Section 25(1)
provides:
“
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
similar purpose"
[10] The dismissal
of the applicants’ application cannot be faulted as section
25(1) does not provide for water being used
for industrial purposes
to be used for irrigation. There is presently no water on Denver and
the pipes laid over Farm Joffre, which
is adjacent to the first
applicant’s farm, have been closed by the third respondent.
[11] A verification
process was undertaken after the
National Water Act 36 of 1998
came
into operation. The Department required the applicant to apply for
verification. The applicant applied in terms of section
35(1) of the
Water Act.
[12] The Department
studied the application and came to the conclusion that the farm
Denver did not have water rights in terms of
section 3 of the present
Water Act. Section 3 provides:
“
3.
Public trusteeship
of nation's water resources.
—
(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.”
[13] The applicants
chose not to appeal this decision to the Water Tribunal and therefor
did not exhaust the internal remedies available
before approaching
the court.
[14]
The
Legal Principles:
In
Koyabe v Minister
of Home Affairs 2010(4) SA 327 CC at' 341
para
35-36 the court found:
“
the
duty to exhaust internal remedies
was
a
valuable and
necessary requirement in our law as internal remedies are designed to
provide immediate and cost-effective relief,
giving the executive the
opportunity to utilize its own mechanism, rectifying irregularities
first before aggrieved parties resort
to litigation”.
And at page 340 para
F:
“
unless
exceptional circumstances are found to exist by a court on
application by an affected person,
PAJA, which has a
broad scope and applies to a wide range of administrative actions
,
requires that available internal remedies be
exhausted prior to judicial review of an administrative action
”
(Court’s
emphasis)
[15] The current
application is not a review application although it is based on a
decision which the respondents had taken. It
was incumbent on the
applicants to appeal the decision to the Water Tribunal and to
exhaust the internal remedies before approaching
this court.
[16] In the present
instance where the first and second applicants aver that they had
used water before the promulgation of the
present Water Act, the
applicants could have applied to have the water use declared as
lawful water use as set out in section 35
of the Act. The applicants
could have launched an appeal to the Water Tribunal, but failed to do
so. The applicants could have
appealed against the decision that the
water use was not lawful water use prior to the promulgation of the
Act. Should they have
been unsuccessful in such an appeal, they could
have instituted a review application to the court.
[17] The agreement
between the first and second applicants and the fourth applicant was
not approved by the Department as it is
contrary to the peremptory
provisions of the Water Act. The applicants concede that section
25(1) of the Act is contrary to the
terms of the agreement as section
25(1) relates only to water used for irrigation and not for
industrial purposes.
[18] Hence the
application by the applicants to have section 25(1) declared
inconsistent with the provisions of sections 9, 24,
27 and 39 of the
Bill of Rights read with section 195(1 )(b) of the Constitution which
provides:
“
(1)
Public administration must be governed by the democratic values and
principles enshrined in the Constitution, including the
following
principles:
...
(b)
efficient
,
economic and
effective use of resources must be performed.”
[19] The respondents
aver that the lack of water supply on Denver can be addressed by
making use of the provisions of the Act.
[20] Section 40 of
the Act provides:
“
a
person who is
required or wishes to obtain a license to use water must apply to the
relevant responsible authority for a license
and follow the procedure
as set out in
section 41
of the
National Water Act"
[21
] The applicants
did not avail themselves of this mechanism to obtain a water license
for irrigation on the farm Denver. The applicants’
contention
is that it would have been an exercise in futility. The applicants
could have facilitated their application for a license
by requesting
the fourth applicant to surrender its unused entitlement to the first
and second applicants as envisaged in section
25(2) of the Act.
Section 25 (2) of the Act provides:
“
(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."
[22] 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 person 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.
[23] The Department
had found that the water use on Denver was not an existing lawful
water entitlement, but did not prohibit the
applicants to apply for a
water license in terms of section 40 of the Act.
[24]
This court has to decide whether section 25(1) of the Act is
inconsistent with the provisions of sections 9, 24, 27 and 39
of the
Bill of Rights. Section 9(1) of the Constitution deals with equality
before the law and equal protection and benefit of
the law. Section
24 deals with the protection of the environment through legislative
and other measures. Section 27 provides that
“
everyone
has the right to have access to ... (b) sufficient foor and water
3
’.
Section
39 of the Constitution provides:
“
39.
interpretation of
Bili of Rights.
—
(
1)
When interpreting the Bill of Rights, a court, tribunal or forum
—
(a) must promote
the values that underlie an open and democratic society based on
human dignity, equality and freedom;
(b) must consider
international law; and
(c) may consider
foreign law.
(2) When
interpreting any legislation, and when developing the common law or
customary law, every court, tribunal or forum must
promote the
spirit, purport and objects of the Bill of Rights.
(3) The Bill of
Rights does not deny the existence of any other rights or freedoms
that are recognised or conferred by common law,
customary law or
legislation, to the extent that they are consistent with the Bill”
[25]
The court has to enquire and decide as to the purpose and effect of
section 25(1). The Constitutional Court has decided in
Zondi
v MEC for Traditional and Local Government Affairs and others 2005(3)
SA 589 CC
where
the Constitutional Court held at paragraph 90:
“
The
purpose and effect of a statute are relevant in determining
/fcs|
constitutionality.
A statute can be held to be invalid either because its purpose or its
effect is inconsistent with the Constitution.
If a statute has a
purpose that violates the Constitution
;
it must be held to
be invalid regardless of its actual effects. The effect of
legislation is relevant to show that although the
statute is facially
neutral, its effect is unconstitutional
[26] Section 2 of
the Act sets out the purpose of the Act as:
“
2.
Purpose of Act.—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”
[27]
Section 25(1) of the Act makes provision that an authorised water
user for irrigation purposes may seek permission in terms
of section
25(2)(b) to use the water for irrigation purposes elsewhere. The
applicants request the court to declare section 25(1)
of the Act
inconsistent with section 27 of the Constitution, as section 25(1)
only relates to water for irrigation purposes and
should, according
to the applicants include the words
“
and
industriar.
This,
according to the applicants, would make it possible to use water from
an authorized water user, who has been licensed to use
water for
industrial purposes.
[28] As I interpret
the section, it allows a person who has already been authorised to
use water for irrigation purposes to use
the water at another place
for irrigation purposes. This can only take place once the applicants
had applied to the Department
and the Department has granted such an
application.
[29] I find that the
applicants had not exhausted their internal remedies by not appealing
to the Water Tribunal. Furthermore it
was incumbent on the first and
second applicants to apply for a water license in terms of section 40
of the Act, which application
could have been facilitated by the
fourth applicant surrendering his entitlement simultaneously with the
first and second applicant’s
application for a water license.
The applicants chose not to do so.
[30] The applicants
did not appeal the original decision that the applicants were not
lawful water users before the promulgation
of the Act.
[31]
Counsel for the applicants referred me to the decision of
Atwell
Sibusiso Makhanya N.O. and Another v Goede Wellington Boerdery, Case
230/2012 SCA, 30 November 2012.
[32] The present
application is distinguishable as Atwell dealt with a review and
setting aside of the Water Tribunal’s decision.
In the present
matter the applicants refrained from appealing to the Water Tribunal,
but launched this application without exhausting
the internal
remedies as provided in the Act. Furthermore the applicants had not
availed themselves in applying for a water license
or making use of
the provisions of section 25(2)(b) of the Act.
[33] I cannot find
that section 25(1) is inconsistent with the provisions of sections 9,
24, 27 and 39 of the Constitution in these
circumstances.
[34] Therefor the
following order is made:
1. The
application is dismissed with costs.
Judge C Pretorius
Case number:
40514/2013
Application heard
on: 23 March 2015
For the Applicant:
Adv. GH Meyer
Instructed by:
Rossouws Lesie Inc.
For the Respondent:
Adv. RPA Ramawele / Adv Magano
Instructed by: State
Attorney
Date of Judgment :
17 April 2015