IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG LOCAL DIVISION. PRETORIA
REPORTABLE: ~NO (1)
(2)
(3)
OF INTEREST TO OTHER JUDGES: ~ O
REVISED: ~NO
llJU NE 2026
-DATE SIGNATURE
In the matter between:
AFRIFORUM NPC
In re:
RAND WATER
MINISTER WATER AND SANITATION
THE MINISTER OF CO-OPERATIVE
GOVERNANCE AND TRADITIONAL AFFAIRS
MINISTER OF FINANCE
MERAFONG CITY LOCAL MUNICIPALITY
RAND WEST CITY LOCAL MUNICIPALITY
EMFULENI LOCAL MUNICIPALITY
LESEDI LOCAL MUNICIPALITY
NGWATHE LOCAL MUNICIPALITY
VICTOR KHANYE LOCAL MUNICIPALITY
GOVAN MBEKI LOCAL MUNICIPALITY
JUDGMENT
CASE NO: 8701 /24
Applicant
First Respondent
Second Respondent
Third Respondent
Fourth Respondent
Fifth Respondent
Sixth Respondent
Seventh Respondent
Eighth Respondent
Ninth Respondent
Tenth Respondent
Eleventh Respondent
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MODISA AJ
[1] The Applicant brought an application for leave to appeal against the whole of the
judgment and order, including the order as to costs of this Court dated 25 March
2026.
[2] The application for leave to appeal is brought on the following basis:
2.1 That the judgment and orders of this Court, despite being in respect of an
interlocutory application, are appealable considering that:
2.1.1 They are final in effect;
2.1.2 They disposed of at least a substantial portion go the relief claimed
in the main proceedings and
2.1.3 The interests of justice require that the judgement and orders be
appealable and the granting of leave to appeal.
[3] It is trite that the test for leave to appeal is whether there are any reasonable
prospects of success on the appeal as contemplated in section 17 (1)(a) (i) of
the Superior Court’s Act 10 of 2023 and/or whether there are any compelling
reasons why then appeal should be heard.
[4] It must be indicated at the outset that this Court was not confronted and/or
dealing with the review application but rather it was confronted with an
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interlocutory application. Therefore, this Court did not make any order pertaining
to the main application.
[5] The remarks made by this Court regarding the main application is only about
mootness.
[6] The Applicant is not debarred from proceeding with Part B of its application. This
was simply an interlocutory application.
[7] The Water Services Act affords Rand Water the power to revoke its decisions 1
when the said decision would have detrimental consequences for the
consumers. The applicant's reading of the facts and the application of the
provisions of the Water Services Act would lead to a position where consumers
would be unduly prejudiced. The Supreme Court of Appeal stated that the test
for implying a provision to revoke or amend is whether it is necessary to the
efficacious operation of the statute.2
[8] The applicant's reliance on Kirland3 and Ouderkraal4 principles is misplaced.
Oudekraal and Kirland did not impose an absolute obligation on private citizens
to take the initiative to strike down invalid administrative decisions affecting
them.5
1 Private Security Industry Regulatory Authority v Anglo Platinum Management Service Ltd [2007] 1 All SA
154 (SCA), para 27.
2 Ibid para 27.
3 MEC for Health, Eastern Cape and Another v Kirland Investments (Pty) Ltd 2014 (3) SA 481 (CC).
4 Ouderkraal Estates (Pty) Ltd v City of Cape Town and Others 2004 (6) SA 222 (SCA).
5 Merafong City Local Municipality v AngloGold Ashanti Ltd 2017 (2) SA 211 (CC) para 44.
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[9] In this instance there are no consequent actions. The matter is simple, Rand
Water realised its error in limiting the water supply to the respondent
municipalities and reversed its decision. No party bar the applicant places any
emphasis on the initial decision that has since been reversed. Further no
consequent actions can flow from a decision to limit t he water supp ly to the
municipal respondents.
[10] When government errs by issuing a defective decision, the subject affected by it
is entitled to proper notice, and to be afforded a proper hearing, on whether the
decision should be set aside. Government shoul d not be allowed to take
shortcuts. Generally, this means that government must apply formally to set
aside the decision. Once the subject has relied on a decision, government
cannot, barring specific statutory authority, simply ignore what it has done. The
decision, despite being defective, may have consequences that make it
undesirable or even impossible to set it aside. That demands a proper process,
in which all factors for and against are properly weighed.6
[11] In this instance the Kirland principle is not applicable. The consumers who were
affected by the decision that has since been reversed by Rand Water do not
have to be afforded notice in order for Rand Water to reinstate the water
provision to the municipalities. There is no need for R and Water to approach
court to set aside the decision to limit water supply as the consumers nor the
municipal respondents placed any reliance on the decision. The only party who
6 Kirland para 65.
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places reliance on the decision is the Applicant who claims to be litigating on
behalf of the consumers. In any event as stated above Rand Water is
empowered by section 4 of the Water Services Act to revoke its decision to limit
water supply.
[12] The facts of this case clearly show that Rand Water had initially made a decision
to limit water supply to the two respondent municipalities. The applicant's own
replying affidavit confirms the point that the water supply to those respondent
municipalities has been restored. The applicant's claim that Rand Water did not
produce any evidence that the decision was withdrawn revoked or reversed
contradicts the contents of the applicant's replying affidavit.
[13] I am of the view that the Applicant does not have reasonable prospects of
success in order to prosecute this appeal.
[14] Consequently, the following order is made:
1. The application for leave to appeal is dismissed with costs including the costs
of two Counsel where so employed on Scale C for Senior Counsel and Scale
B for Junior Counsel.
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MODISA AJ
JUDGE OF THE HIGH COURT
PRETORIA
For the Applicant:
Adv AT Lamey
Adv C Van Schalkwyk
Instructed by: Hunter spies Inc
For the Respondent:
Adv Ngutshana SC
Adv L Nyangiwe
Instructed by: Mathopo Moshimane Mulangaphuma Inc