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[2014] ZAGPPHC 102
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I M Karan T/A Karan Beef Feedlot v Minister of Water And Environmental Affairs (43448/13) [2014] ZAGPPHC 102 (10 February 2014)
IN THE NORTH
GAUTENG HIGH COURT, PRETORIA
(REPUBLIC OF
SOUTH AFRICA)
Case
Number: 43448/13
DATE:
10/2/2014
In the matter
between:
I M KARAN t/a
KARAN BEEF
FEEDLOT
................................................................
Applicant
And
THE MINISTER OF
WATER AND
ENVIRONMENTAL
AFFAIRS
................................................................................
Respondent
JUDGMENT
DE KLERK AJ
[1] The Applicant
seeks declaratory orders in the following form:
1. That it be
declared that since 28 September 1993 the Respondent’s
charging to the Applicant for industrial water use in
terms of permit
B2/2/16(3062) dated 28 September 1993 has been unlawful and in
contravention with the repealed Water Act, 1956
(Act 54 of 1956);
2. That it be
declared that since 1 October 1998 the Respondent’s charging to
the Applicant for industrial water use for his
existing lawful water
use in terms of permit B2/2/16(3062) dated 28 September 1993 read
with the provisions of section 22 (1) (a)
(ii) and section 32 of the
National Water Act, 1998 (Act 36 of 1998) has been unlawful;
3. That it be
declared that upon a proper interpretation of the Applicant’s
permit B2/2/16(3062) dated 28 September 1993
the Applicant’s
water use in terms of the repealed Water Act, 1956 (Act 54 of 1956)
was agricultural use;
4. That it be
declared that upon a proper interpretation of the Applicant’s
permit B2/2/16 (3062) dated 28 September 1993
read with the
provisions of Section 22 (1) (a) (ii) and Section 32 of the National
Water Act, 1998 (Act 36 of 1998) is irrigation
water use;
5. That it be
declared that the Applicant is only liable to pay irrigation water
use charges in terms of the raw water charges as
amended and approved
by the Respondent for the Applicant’s existing lawful water use
in terms of permit number B2/2/16 (3062)
dated 28 September 1993 read
with the provisions of Section 22 (1)(a)(ii) and Section 32 of the
National Water Act, 1998 (Act 36
of 1998);
6. That it be
declared that since 28 September 1993 the Respondent’s charging
to the Applicant of Trans-Caledon Tunnel Authority
charges has been
unlawful;
7. That it be
declared that the Applicant is not liable to pay Trans-Caledon Tunnel
Authority charges for the Applicant’s
existing lawful water use
in terms of permit number B2/2/16 (3062) dated 28 September 1993 read
with the provisions of Section
22 (1)(a)(ii) and Section 32 of the
National Water Act, 1998 (Act 36 of 1998).
[2] The Applicant
further seeks an order directing the Respondent to pay the costs of
the application.
[3] The Respondent
opposes the application and has raised a point in limine.
Introduction:
[4] This case is all
about the tariffs at which the Respondent is charging the Applicant
for his water use with regard to a feedlot
which the Applicant
operates on a portion of the Farm Elandsfontein. The reason why the
Applicant has now resorted to litigation
over this matter is because
he and the Respondent have been at loggerhead with each other over
this matter for many years, in particular
because the Applicant
argues that the Respondent is charging him an industrial instead of
agricultural water use tariff. The determination
of the applicable
tariff to be paid is relevant because there is a marked difference
between the two tariffs.
Common cause
facts:
[5] The facts are
mainly common cause and can be summarised as follows:
1. The Applicant is
the owner of a cattle feedlot and he is conducting business as such
on Portion 5 (a portion of portion 2) of
the Farm Elandsfontein 412,
Registration division IR, in the district of Heidelberg (hereinafter
referred to as the land).
2. The land is
situated at the confluence of the Blesbokspruit and Suikerbosrand
River.
3. In terms of a
permit granted to the Applicant by the Respondent on 28 September
1993, he was authorised to abstract a maximum
of 657 000 m³
water per annum from the Suikerbosrand River for the specific purpose
of a feedlot on the said land.
4. The Applicant was
also entitled to abstract an additional 823 000 m³ water per
annum from the Suikersborand River for irrigation
purposes.
5. The Respondent
charged the Applicant for the water use in respect of the feedlot, an
industrial tariff including Trans-Caledon
Tunnel Authority charges.
6. The rate charged
for irrigation water use has always been lower than the rate charged
for industrial use.
The Applicants’
contentions are as follows:
[6] The permit
wrongfully states that the water use was for industrial purposes.
[7] In terms of the
prevailing legislation the water use, when the permit was issued, was
for agricultural use.
The Respondents’
contentions are as follows:
[8] The 1993
amendment of the definition, as referred to by the Applicant, did not
amend the conditions of the said permit as issued.
Legislation:
[9] The permit was
issued in terms of the provisions of Section 62 (21) (a) 1 of the
repealed Water Act 54 of 1956.
[10] The relevant
part of Section 62 (21) (a) 1 reads as follows:
“The Minister
may grant on such conditions as he may determine permission to any
person to abstract a quantity of public water
and to use it for A
PURPOSE SPECIFIED in the permission.”
[11] The definition
of “use for agricultural purposes” as published by Notice
1164 in government gazette dated 7 July
1993 read as follows:
“Use for
agricultural purposes means use for irrigation of land and includes
use for domestic purposes or for the purpose
of water borne
sanitation or for the watering of stock or gardens or use for or in
connection with an intensive animal feeding
system or the breeding or
keeping or growing, for commercial purposes, of any aquatic animal or
plant or any amphibian.”
[12] Section 34 of
the new Water Act provides that a person or his successor in title
may continue with an existing lawful water
use, subject to any
existing condition or obligation attaching to that use.
[13] Applying the
law to the facts:
The permit reads as
follows:
VERGUNNING
: B2/2/16 (3062)
VERGUNNINGHOUER
: MNRE. KARAN ESTATES (EDMS.) BPK.
EIENDOM
: GEDEELTE 5 (GEDEELTE VAN GEDEELTE 2) VAN DIE PLAAS
ELANDSFONTEIN 412 IR :GROOT 985, 7855 HEKTAAR:
DISTRIK
HEIDELBERG, TRANSVAAL.
SUIKERBORSRANDRIVIER-STRAATSWATERBEHEERGEBIED:
VERGUNNING KRAGTENS ARTIKEL 62 (2I) (a) (i) VAN DIE WATERWET, 1956
(WET 54 VAN 1956)
Kragtens die
bevoegheid aan my gedelegeer by Goewermentskennisgewing 966 van 19
Mei 1989, verleen ek, Claus Triebel, in my hoedanigheid
van
Bestuurder: Waterbronne in die Departement van Waterwese en Bosbou,
hiermee aan die bogenoemde Vergunninghouer ʼn maksimum
hoeveelheid van 657 000 (seshonderd sewe-en-vyftigduisend) kubieke
meter water per jaar uit die Suikerbosrandrivier vir
nywerheidsdoeleindes
(voerkraal) op bogenoemde eiendom te ontrek,
onderwope aan die volgende voorwaardes:
1. Die
beskikbaarheid van die toegekende hoeveelheid water en die gehalte
daarvan vir enige bepaalde doel word nie gewaarborg nie.
2. Geen nuwe
waterwerk mag opgerig of geen verandering mag aan ʼn bestaande
waterwerk aangebring word nie sonder die voorafverkryging
van die
nodige werkemagtiging kragtens artikel 63 (2H) (a) van die Waterwet,
1956.
3. Hierdie
Vergunning is tydelik van aard en verteenwoordig geen permanente
watertoekenning nie. Die reg word voorbehou om die
Vergunning te
hersien of te kanselleer na redelike voorafkennisgewing.
4. Gevolmagtigde
beamptes van die Departement van Waterwese en Bosbou het vir
doeleindes van toesig en beheer oor die onttrekking
van water
ingevolge hierdie Vergunning te alle redelike tye vrye toegang tot
die betrokke waterwerke.
5. Alle moontlike
voorsorg moet tot tevredenheid van die Departemente van Waterwese en
Bosbou getref word om nie die betrokke rivier
op enige wyse te
besoedel nie.
6. Tarief van 28,4
sent per kubieke meter water en wat van tyd tot tyd aangepas kan
word, sal vir die werklike hoeveelheid water
wat onttrek word, gehef
word.
7. Hierdie
Vergunning stel nie die Vergunninghouer vry van voldoening aan die
bepalings van artikels 12 en 21 van die Waterwet,
1956 nie.
8. Hierdie
Vergunning vervang Vergunning B2/2/16 (3062) gedateer 21 Oktober
1986.
[14] The parties are
ad idem that the permit was granted to the Applicant for the specific
purpose of a feedlot. Same is also clearly
evident from the wording
of the permit. It is further evident from the permit itself that
same was granted to the Applicant subject
to certain conditions
including the levying of a tariff for the actual water extracted by
the Applicant and which could be adjusted
from time to time. It is
common cause that the tariff had from time to time been adjusted,
however, there is no evidence on the
papers that any of the
conditions had been amended.
[15] It is further
common cause that the extraction of water in terms of the permit was
in addition to the Applicant’s extraction
of water for
agricultural use.
[16] It is not the
Applicant’s case that his water use (in terms of the permit) is
for agricultural purposes (it is for the
specific purpose of a
feedlot). It is the Applicants’ case that a feedlot was in
terms of the prevailing legislation, at
the time when the permit was
issued, to him classified as “use for agricultural purposes”
and not industrial purposes.
[17] The insertion
of the word industrial purposes next to the word feedlot on the
permit is accordingly contrary to the statutory
provision which
classified a feedlot as use for agricultural purposes.
[18] In the light of
the common cause facts and a proper interpretation of the
legislation, I am of the view that the definition
of “use for
agricultural purposes’ at the time when the permit was issued
included use in connection with an intensive
animal feeding scheme.
Trans-Caledon Tunnel
Authority Charges:
[19] The parties are
ad idem that the Trans-Caledon Tunnel Authority levy is specifically
charged for water for industrial users.
I am, in the light of my
finding hereinbefore, of the view that the Applicant is not liable to
pay Trans-Caledon Tunnel Authority
charges for his existing lawful
water use in terms of the permit dated 28 September 1993.
Point in limine:
[20] The Respondent
raised a point in limine to wit the Applicant’s failure to
comply with the provisions of the
Promotion of Administrative Justice
Act 3 of 2000
.
[21] The
Respondent’s contentions are that:
1. The Applicant is
challenging a decision made on 28 September 1993 and the Applicant is
in effect asking for a review of that
decision. Consequently, the
Applicant’s challenge falls within the provisions of
Section 6
(1) of the
Promotion of Administrative Justice Act No. 3 of 2000
and
that the Applicant has failed to comply with any of the requirements
of the said act.
2. The Applicant’s
contentions are that he is not challenging the decision / permit.
His application so the argument runs,
centres around the
interpretation of a statutory provision.
[22] In my view the
Applicant’s contentions are sound.
[23] Consequently
the point in limine is dismissed.
The order reads
as follows:
1. In terms of
permit number B2/2/16 (3062) dated 28 September 1993 the Applicant is
only liable to pay irrigation water use charges.
2. The Applicant is
not liable to pay Trans-Caledon Tunnel Authority charges for the
applicant’s existing lawful water use
in terms of permit number
B2/2/16 (3062) dated 28 September 1993;
3. The Respondent is
ordered to pay the costs of the application.
Signed at on this
day of 2014.
Judge De Klerk AJ
The Honourable
Judge of the High Court of Pretoria