IN THE HIGH COURT OF SOUTH AFRICA
(WESTERN CAPE DIVISION, CAPE TOWN) [REPORTABLE]
Case no: 22969/2023
In the matter between:
IZAK SCHALK WILLEM VAN ZYL N.O First applicant
JOHANNA GERTRUIDA VAN ZYL N.O Second applicant
SIMON PETRUS VAN BLERK N.O Third applicant
(in their capacities as trustees of
the ISW Van Zyl Trust)
HENDRICK GIDEON LOUW Fourth applicant
and
THE MINISTER OF WATER & SANITATION First Respondent
THE DEPARTMENT OF WATER & SANITATION Second Respondent
THE CHIEF DIRECTOR: WATER USE & AUTHORIZATION
MANAGEMENT, DEPARTMENT OF WATER & SANITATION Third Respondent
CEDERBERG MUNICIPALITY Fourth Respondent
Coram: Sher J
Summary: Water-National Water Act 36 of 1998- Sections 24, 27 and 41(4)- Application
in terms of s 24 for a licence to use water found underground on land not owned by the
applicant. May be granted if the owner consents or if there is good reason -Applicant for
such a licence required to notify the owner and engage them with a view to obtaining
their consent- A responsible authority may not dispense with a landowner’s consent
without them being notified of the application and being given a reasonable opportunity
to make representations or submissions in respect thereof. On a proper interpretation of
ss 24 and 27, read with the preamble to the Act and its purposes, when considering
whether to issue a water use licence a responsible authority is required to have regard
for all water uses, not only existing lawful registered uses. Although the provisions of s
41(4)(a) and (b) are phrased in permissive terms, they are not purely discretionary and
confer a power on the responsible authority to require an applicant for a water use
licence to give notice thereof to interested persons, and a duty to exercise such power
in appropriate circumstances. Held that as the applicants were landowners and , as
such, interested persons whose rights might be affected by the grant of the licence in
terms of s 24 the responsible authority was under a duty to ensure they were given
notice thereof by the fourth respondent municipality.
___________________________________________________________________
ORDER
___________________________________________________________________
1. The decision by the 3 rd respondent on 23 March 2023 to issue a water use
licence (number 01/G30G/AB/10089 ) to the 4 th respondent, allowing it to
abstract a combined total volume of 567 648 m³ of groundwater per annum
from boreholes ‘LR1’, ‘OD514’ and ‘KKL5’ on the applicants’ land for a period
of 20 years, and the licence itself, are reviewed and set aside.
2. The 4th respondent is granted leave, if so minded, to resubmit an application
for a water use licence for the supply of groundwater for Lambert’s Bay from
boreholes ‘LR1’, ‘OD514’ and ‘KKL5’ , to the 3 rd respondent for
reconsideration, who in doing so shall have due regard for the judgment in
this matter and any submissions or representations which may be made by
this matter and any submissions or representations which may be made by
the applicants in respect of such application.
3. The operation of the order in paragraph 1 is suspended for a period of 18
months or until the 3 rd respondent has reconsidered and made a decision in
respect of the 4 th respondent’s fresh application for a water licence in terms
of paragraph 2, whichever is the earlier.
4. The parties are granted leave to approach the court (on the same papers
duly supplemented), to request an extension of the suspension of the order in
paragraph 1, and/or for any further or ancillary relief thereto, should that be
necessary.
5. The respondents shall be liable jointly and severally (the one paying the other
to be absolved), for the applicants’ costs, which shall include the costs of two
counsel where so employed, one on scale C and one on scale B.
JUDGMENT DELIVERED (VIA EMAIL) ON 9 JULY 2026
______________________________________________________________________
SHER J:
1. This is an application to review and set aside a decision which was taken on 23
March 2023 by the Chief Director: Water Use Authorisation Management, of the
Department of Water and Sanitation, to grant a water use license to the
Cederberg municipality in terms of the National Water Act1 (‘the NWA’), which
allows it to abstract groundwater for the town of Lambert ’s Bay from three
boreholes, one of which is situated on land which is owned by the ISW Van Zyl
Trust and two on land owned by the 4th applicant. The properties, which adjoin
one another as portions 3 and 6 of the farm Klein Klipheuvel, are used for the
commercial farming of vegetables and potatoes.
The relevant facts and circumstances
2. Lambert’s Bay is a small town on the West Coast which obtains its entire
municipal water supply from groundwater, which was initially abstracted from
1 Act 36 of 1998.
boreholes in a well field in the Wadrif aquifer, an area about 15 km south of the
town. Due to the rate of abstraction, over the course of time the water levels in
the well field dropped, its yields declined , and the quality of the water which was
drawn from it deteriorated.
3. Although high rainfall in 2007 and 2008 replenished the aquifer’s water levels, as
an adjacent salt pan was inundated the groundwater became increasingly saline,
rendering it unfit for human consumption. Because of this , and in the light of an
imminent shortage of potable water for Lambert ’s Bay , in 2008 a ‘production’
borehole, ‘OD514’, was installed on 4th applicant’s land with his consent, but with
the closure of further boreholes in the W adrif well field it was insufficient to meet
the demands of the town’s water supply. The 4 th applicant then agreed to
supplement it with water taken from his own private borehole, ‘KKL5’, (which had
been installed in 2000 ), which was used as a back -up supply during times of
peak demand, largely in the summer months.
4. In 2009 the municipality also entered into an agreement with the previous owner
of the adjoining Trust’s land for the installation on it of a ‘production’ borehole,
‘LR1’, at the municipality’s cost . In terms of the agreement the owner was to be
paid an agreed rate per kilolitre for water which was abstracted from it . In 2016,
after the Trust acquired the property, it entered into a substitute agreement which
allowed the municipality to abstract water at an increased rate per kilolitre, for 3
years. In 2019 the agreement was extended to 2021, when it came to an end , as
the parties were unable to agree on a n increased rate of payment for the
continued abstraction of water.
5. Despite both this agreement and the one in respect of OD514 having come to an
end by 2021, the municipality continued nonetheless to abstract water from the
boreholes. This prompted the Trust to launch an application in July 2021 for an
boreholes. This prompted the Trust to launch an application in July 2021 for an
order compelling the municipality to remove the installation at LR1 and
rehabilitate its property. On 18 November 2021 the parties agreed to an order
directing the municipality to remove its equipment and evicting its employees
(who were in possession of the installation), which was suspended for a period of
6 months, until 31 May 2022. The municipality did not comply with the order by
the due date. On 21 June 2022 it was extended, by agreement, till the end of the
month.
6. As t he municipality had still not remove d the borehole installation by 30 June
2022 and continued to take water from it , t he Trust launched an application to
hold it in contempt. The MEC for Local Government and the Department of Water
and Sanitation were joined to the proceedings and requested a stay of execution
of the November 2021 order, pending the municipality sourcing an alternative
supply of water from the northern Cape.
7. As this did not materialize, in November 2022 the Trust removed the borehole
pump from the installation at LR1 and blocked access to it by the municipality. On
2 December 2022 the municipality obtain a spoliation order directing the Trust to
restore it in its possession of the facility.
8. In August 2023, shortly before the contempt application was due to be heard , the
Trust’s attorneys received a letter from the municipality’s legal representatives in
which they were notified that a water use license had been issued to the
municipality some 5 months earlier by the Chief Director: Water Use
Authorisation Management , whereby it was granted the right to abstract water
from the three boreholes, for a period of 20 years. As a result, the contempt
application was rendered moot.
9. From the respondent’s affidavits it appears that the application for a water use
license was submitted to the Department by the municipality’s Manager for Water
Services, in April 2019. It was supported by a geo -hydrological report which had
been prepared by Geohydrological & S patial Solutions international (Pty) Ltd
(‘GEOSS‘). In July 2019 the Department conducted a site visit and in October
2019 it requested the municipality to provide further information.
10. On 6 January 2020 a ‘DW 902 consent’ form, which had been signed by the
GEOSS consultants, ostensibly on the authority of the municipality’s Manager of
GEOSS consultants, ostensibly on the authority of the municipality’s Manager of
Water Services, was submitted to the Department. As the form is one which is to
be submitted by a landowner, granting permission for the installation of a water
extraction resource on its land, 2 the Department requested the municipality to
2 Pursuant to the provisions of s 24 of the NWA.
submit a DW 902 which was completed and signed by the Trust. In May 2020 the
Manager of Water Services advised that the Trust had been unwilling to give
access for an ‘investigation’ i.e. drilling and testing (sic) and any further borehole
‘development’ on its land , and had demanded an unreasonable tariff of R7 per
kilolitre for water which was to be extracted from LR 1, after rejecting the
municipality’s proposal for a tariff of R0.39 cents per kilolitre. Thus, the Manager
requested that the Department intervene.
11. Despite this request, from the papers it does not appear that the Department
made any attempt to formally contact the Trust and request its consent, as
landowner, to the issue of a water use license allowing the municipality to
abstract water from borehole LR1. There is similarly no indication on the papers
that any attempt was made to obtain the consent of the 4 th applicant in relation to
the municipality’s request for a water use license allow ing it to abstract water
from boreholes OD514 and KKL5 , and no DW 902 form was seemingly
submitted by, or in respect of, 4th applicant.
12. The record of the decision is voluminous. For the purposes of the judgment it is
not necessary to traverse chapter and verse of it, and a synopsis thereof will do .
It set s out the background circumstances which gave rise to the application
(including particulars of the water demand and supply required for Lambert ’s Bay
having regard for its population at the time ), the location of the boreholes from
which water was to be drawn, a summary of the technical information which was
contained in the GEOSS report ( including water yield and monitoring data for
each borehole and specifications as to the Wadrif groundwater reserve), and the
water uses applied for with reference to the cubic metres per annum abstraction
rates proposed for each borehole and the impacts thereof , and mitigation
measures which would be implemented. It also contained a detailed discussion
measures which would be implemented. It also contained a detailed discussion
of the relevant factors, in terms of s 27 of the NWA, which were considered.
These were said to include (a) existing water uses (b) the need to redress past
racial discrimination (c) the need for the efficient and beneficial use of water in
the public interest (d) the soci o-economic impact of the proposed water use if it
was authorised and if it was not, and (e) the likely impact of the proposed water
use on the water resource and on other water users.
13. After having regard for the aforegoing information, on 13 March 2020 the
Department’s Water Use License Application Manager recommended that a
licence be granted to the municipality, in terms of ss 40-42 of the NWA, whereby
it would be allowed to abstract a combined total of 567 648 m³ of groundwater
per annum from the three boreholes for a period of 20 years, which licence would
be renewable at 5-year intervals thereafter. Because of the litigation that ensued
between the Trust and the respondents between July 2021 and December 2022,
the further process required for the consideration and approval of the
recommendations was placed on hold pending the outcome thereof. The
recommendations were eventually accepted by the Chief Director, who
authorised a licence in such terms, on 23 March 2023.
The applicants’ challenge
14. The applicants seek to review the grant of the licence on several grounds, both
procedural and substantive. In relation to the former the y point out that despite
having an interest , as landowners, in the grant of the licence , they were never
formally given notice of the application which was lodged by the municipality. As
a result they were not given an opportunity to object to the application or to
provide their input and views in relation to it, and were consequently deprived of
their right to appeal the grant of the licence to the Water Tribunal 3 because, in
terms of the NWA only objectors to an application for the grant of a water use
licence are entitled to lodge an appeal. 4 As a result they also lost their limited
further right, if warranted, to appeal the decision of the Water Tribunal to the high
court.5
3 The Water Tribunal, which is established in terms of Ch 15 of the NWA. may hear appeals against certain
decisions which are taken by a ‘responsible authority’ .
decisions which are taken by a ‘responsible authority’ .
4 Section 148(f), read with s 41(6), provides that only an unsuccessful applicant or any other person who has
timeously lodged a written objection to an application for a water use licence may lodge an appeal against a
decision pertaining thereto.
5 The preamble to Ch 15 notes that a person who is aggrieved by a decision of the Water Tribunal may appeal
it to the high court, on a question of law.
15. The applicants contend that the notice provisions which are set out in s 41(4) of
the NWA, although framed in permissive terms , should be interpreted and
understood as mandatory, and it should be held that the respondents’ failure to
comply with them render s their decision reviewable in terms of the relevant
provisions6 of the Promotion of Administrative Justice Act (‘PAJA’).7
16. In addition , they contend that the decision also falls to be set aside on
substantive grounds, as it was irrational and failed to have regard for, or take into
account, several material factors and considerations .8 These include the
historical over-abstraction of groundwater from boreholes on the Wadrif aquifer ,
and the fact that the use of groundwater as a source of water for Lambert’s Bay
was always intended to be a temporary solution and not a permanent one.
Consequently, they submit that for these and other reasons the means which
were adopted by the respondents and the process which they followed were not
rationally connected to its ends, or to the purpose of the licensing provisions of
the NWA.9
17. In their response the respondents contend that as the notice provisions of s 41(4)
are permissive and discretionary, not mandatory, and as the applicants were not
existing law ful water users ,10 they had no rights or lawful interest in the
application and were not entitled to receive notice of it. They point out that PAJA
only provides11 that administrative action which materially and adversely affects a
person’s ‘rights’ must be procedurally fair , and in the seminal decision in Grey’s
Marine12 the SCA accepted that the term does not ‘encompass interests that fall
short of that’. They note further that, in terms of regulation 3 of the Water Use
Regulations,13 any person utilizing water (other than for domestic purposes) is
required to register their use, which none of the applicants had done.
6 Section 3(2)(b)(i).
7 Act 3 of 2000.
8 Contra s 6(2)(e)(ii) of PAJA.
6 Section 3(2)(b)(i).
7 Act 3 of 2000.
8 Contra s 6(2)(e)(ii) of PAJA.
9 Contra s 6(2)(f)(ii) of PAJA.
10 Sections 32(1)- (2) define what constitutes an ‘existing lawful water use’ .
11 Section 3(1).
12 Grey’s Marine Hout Bay (Pty) Ltd v Minister of Public Works 2005 (6) SA 313 (SCA) para 30.
13 Published in GN R1352, GG 20606 of 12 November 1999.
18. Consequently, so the respondents contend, the applicants were not deprived of
an opportunity to object to the grant of the licence as they did not enjoy any right
to do so and were likewise not deprived of an opportunity to appeal its grant.
19. Finally, the respondent s contend that the substantive challenge must fail as the
relevant functionaries had due and proper regard for all the relevant
considerations that were applicable, including those set out in s 27 of the NWA ,
and the decision to award the licence was therefore neither arbitrary nor
irrational.
The relevant provisions of the NWA
20. In its preamble the NWA recognizes that water is a scarce and ‘unevenly
distributed’ national resource which belongs to all people in SA , and the national
government exercises overall responsibility and authority over it. I n doing so its
functions include the ‘equitable allocation ’ of water for beneficial use and its
redistribution.
21. The Act is a lengthy statute, which is structured into 17 chapters, each of which is
divided into several parts. Th ose chapters which are principally applicable to a
determination of the issues in this matter are chps. 1 and 4.
22. Chapter 1 sets out how the Act is to be interpreted and its fundamental principles.
To this end s 1 sets out certain definitions and principles of interpretation, and s 2
sets out the Act’s purposes, which are to ensure that the nation’s water resources
are prote cted, used, developed, conserved, managed and controlled in ways
which take into account a range of listed factors, including (a) meeting the basic
human needs of present and future generations (b) promoting equitable access
to water (c) redressing the results of past discrimination (d) promoting the
efficient, sustainable and beneficial use of water in the public interest (e)
facilitating social and economic development, and (f) providing for the growing
demand for water use. ‘Protection’ of a water resource means maintaining its
demand for water use. ‘Protection’ of a water resource means maintaining its
quality ‘to the extent’ that it is used in an ecologically sustainable manner and
preventing its degradation. Section 4 deals with the entitlement to use water and
must be read with the provis o in s 151(1) that no person may use water
otherwise than as permitted under the Act . It states that a person may either
continue with an ‘existing lawful water use’ ,14 or may use water in terms of a
‘general authorisation or licence’.15 Such permitted usage extends to ‘reasonable’
domestic use , ‘domestic’ or ‘small’ gardening (not for commercial purposes ),
animal ‘watering’, fire-fighting (in emergency situations) and recreational use’.16
23. Chapter 4 in turn deals, in detail, with the use of water and its licensing, which
can be in the form of either a general authorisation (for a category or group of
persons)17 or an individual license.18 The chapter is divided into ten parts. Part 1
deals with the general principles applicable to water use . It provides 19 that, in
general, a water use must be licensed unless it is listed in Schedule 1, is an
existing lawful use , or is permi tted under a general authorisation , or the
responsible authority waives the need for a licence for it.
24. Part 2 contains provisions which deal with the considerations which must be
taken into account (s 27) , and the conditions and essential requirements for the
issue of general authorisations and licences (ss 28 -9), and their essential
features.
25. Part 3 deals with ‘existing lawful water uses’ . In its preamble it states that no
licence is required to continue with an existing lawful water use until a
responsible authority requires a person who claims such an entitlement, to apply
for one. If a licence is issued on such application, it becomes the source of
authority for the water use. If it is not the existing use is no longer permissible.
26. Existing lawful water uses are defined in s 32. They are uses which took place at
any time during a period of two years immediately prior to the commencement of
the NWA (in 1998) and which were authorised by or under any previous law
which was in force, 20 or those which have been declared to be such in terms of
the NWA.21
14 In accordance with s 34.
15 Sections 4(2)-(3).
16 Section 4(1) read with Schedule 1 to the Act.
17 In terms of section 39.
16 Section 4(1) read with Schedule 1 to the Act.
17 In terms of section 39.
18 In terms of Ch 4 Part 7, ss 40-41.
19 In its preamble and ss 22(1)(a)-(c).
20 Section 32(1)(a)(i).
21 Section 32(1)(b) read with s 33.
27. Part 6 deals with general authorisations to use water , which may apply to a
category of persons, a defined geographical area , or a period of time. Part 7
deals with applications for individual licences ( s 40) and the procedure to be
followed for them (s 41). Part 8 deals with the procedure which is to be followed
for the compulsory licensing of any aspect of water use in respect of resources
within a specific geographic al area which are under ‘water stress’ i.e. w here the
demand for water may exceed the available supply, or where the quality of the
water is under threat. Part 9 deals with the review and renewal of licences , and
the amendment and substitution of their conditions.
28. The procedure which is to be followed for an application for a licence for a water
use is set out in s 41. Section 41(1) provides, in peremptory terms, that the
application must be made in the form, and must contain the information
determined by, the responsible authority.22
29. In contrast to this , subsections 41(2)-(4) are largely worded in permissive terms.
They provide that when processing an application for a water use licence a
responsible authority ‘may require’ the applicant to do certain things , and it ‘may’
do certain things.
30. In this regard, to the extent that it is reasonable to do so the authority ‘may’
require the applicant to obtain and provide it with further information, an
assessment by a competent person of the likely effect of the proposed licence on
the ‘resource quality’, and an independent review thereof by a person who is
acceptable to it. 23 The responsible authority ‘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 in question. 24 It
‘may’ also invite written comments from any organ of state which, or person who,
has an interest in the matter.25
31. Similarly, section 41(4) provides that a responsible authority ‘may’ require the
31. Similarly, section 41(4) provides that a responsible authority ‘may’ require the
applicant, at any stage of the application process, to take certain steps in relation
22 Sections 41(1)(a)-(b).
23 Sections 41(2)(a)(i)-(iii).
24 Section 41(2)(b).
25 Section 41(2)(c).
to the application. These include giving ‘suitable notice’ thereof in newspapers
and other media, ‘describing’ the licence which has been applied for and stating
that written objections thereto may be lodged by a date which is no less than 60
days from the date of the publication of the notice. 26 In addition, the responsible
authority ‘may’ require the applicant 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. 27 It ‘may’ also require the applicant to satisfy it
that the ‘interests of any other person having an interest in the land’ will not be
adversely affected by the licence which is sought.28
32. In contrast to this permissive language section 41(2)(d) provides that the
responsible authority ‘must’ afford the applicant an opportunity to make
representations to it on any aspect of the licence application.
The principles of interpretation
33. It is trite that w hen interpret ing a provision in a statute a court engages in the
unitary exercise of having regard for the text i.e. the language used, in its
context, and the purpose of the provision in question. 29 In Capitec Bank 30 the
SCA cautioned that this triad of interpretative factors must not be used in a
mechanical fashion and it is the relationship between the words used, the
concepts expressed by them, and the place of the contested provision within the
scheme of the statute as a whole , that constitutes ‘the enterprise by recourse to
which a coherent and salient interpretation’ is arrived at.
34. Insofar as the starting point is the text, words are to be given their ordinary
grammatical meaning unless doing so would result in an absurdity. But as
meaning depends on and is influenced by context, the text should not be viewed
26 Section 41(4)(a)(i)-(ii).
27 Section 41(4)(b).
28 Section 41(4)(c).
29 Natal Joint Municipal Pension Fund v Endumeni Municipality [2012] ZASCA 13; 2012 (4) SA 593 (SCA) para
18.
18.
30 Capitec Bank Holdings Ltd & Ano v Coral Lagoon investments 194 (Pty) Ltd & Ors [2021] ZASCA 99; 2022 (1)
SA 100 (SCA) para 25.
in isolation , and a construction that promotes the purpose o r object which
underlies the Act should be preferred above one that does not do so.31
35. As to ‘ordinary meaning’ , in SA Nursing Council 32 the SCA noted that this does
not necessarily mean the ‘straightforward attribution’ of a dictionary meaning of a
word to it, as such a meaning may often give rise to further questions, such as for
whom this ‘ordinary meaning’ is intended, as the word may be used in common
parlance, and in which community it is used . One must also guard against
choosing a dictionary meaning that would best suit a preferred outcome, rather
than the meaning that ‘best fits’ what has been written and the ‘larger design’ of
the instrument which the court is called upon to interpret.33
36. Statutes must also be construed consistently with the Constitution and, where
reasonably possible, should be interpreted in a such a manner as to preserve
their constitutional validity.34 In addition, when interpreting any legislation, a court
must promote the spirit, purport and objects of the Bill of Rights, where any
fundamental rights are implicated therein.35
37. Finally, s 1(3) of the NWA provides that when interpreting any of its provisions a
reasonable interpretation which is consistent with its purposes mu st be preferred
over an alternative one which is inconsistent therewith.
An assessment
(a) The use of permissive language
38. Given the provisions of the NWA which have been referred to, it is evident that in
order to abstract water lawfully from the three boreholes on the applicants’ land
the municipality required a licence to do so, for which it applied. In this regard s
24 provides that a licence may be granted to use water which is found
underground on the property of another . But this may only occur if the owner of
the land consents thereto, or, failing this, if there is ‘good reason to do so’.
the land consents thereto, or, failing this, if there is ‘good reason to do so’.
31 Centaur Mining SA (Pty)Ltd v Moodliar N.O. & Ors [2026] ZACC 20 para 79, referring to Cool Ideas 1186 CC v
Hubbard [2014] ZACC 16; 2014 (4) SA 474 (CC) para 28.
32 SA Nursing Council v Khanyisa Nursing School (Pty) Ltd [2023] ZASCA 56; 2024 (1) SA 103 (SCA) para 15.
33 Id.
34 Centaur n 31 para 80.
35 Section 39(2) of the Constitution.
39. Given the history of their dealings with the 4 th respondent municipality, it is
evident that at least the Trust applicants were opposed to it drawing water from
their boreholes, unless the Trust was compensated and the rate and quantity of
groundwater which was to be abstracted was sustainable , and did not imperil the
Trust’s farming activities.
40. It is further evident that the 4 th respondent did not formally engage any of the
applicants in regard to its application for a water use licence . It also never
formally requested them to provide their consent, nor did it seemingly ever
formally give them notice that if they failed to do so, application would be made to
the responsible authority for it to dispense therewith, in terms of s 24.
41. Common sense and fairness dictates that prior to granting a water use licence in
terms of s 24 these steps should have been taken. In his answering affidavit the
Chief Director said that once it was established that the municipality would not be
in contempt of the court if it accessed its infrastructure at the Trust’s boreholes in
terms of s 80 of the Water Services Act, 36 the Trust’s consent was ‘dispensed’
with.
42. The question that requires determination is whether, in the absence of these
steps having been taken the responsible authority’s grant of the licence was
invalid or may otherwise be set aside.
43. In this regard, as previously pointed out the applicants contend that , although the
notice provisions of s 41(4) are framed in permissive terms they are not ‘purely’
discretionary and, in certain circumstances, such as th ose which feature in this
matter, they should be considered to be mandatory, and as such they imposed a
duty on the responsible authority to take steps directing the 4th respondent to
give them due and proper notice of its application for a licence.
44. The respondents in turn contend that as the applicants were not existing lawful
water users, and the provisions of s 41(4) are purely permissive and
water users, and the provisions of s 41(4) are purely permissive and
discretionary, there was no need , or legal obligation or requirement , for them to
ensure that the applicants were given notice of the application , or an opportunity
to object or provide input in regard thereto.
36 Act 108 of 1997.
45. As to the use of permissive language in statutory provisions, Wade37 has
remarked that:
‘The hallmark of discretionary power is permissive language using words such as ‘may’ as
opposed to obligatory language such as ‘shall’. But, this simple distinction is not always a sure
guide, for there have been many decisions in which permissive language has been construed as
obligatory. This is not so much that one form of word is interpreted to mean its opposite, as
because the power conferred is, in the circumstances prescribed by the Act, coupled with the duty
to exercise it in a proper case.’
46. In expanding on this the learned author referred to the comment by Cotton LJ in
Nickalls v Baker 38 that:
‘…great misconception is caused by saying that in some cases ‘may’ means ‘must’. It can never
mean ‘must ‘so long as the English language retains is meaning; but it gives a power, and then it
may be a question in what cases, where a judge has a power given him by the word ‘may‘ , it
becomes his duty to exercise it.’
47. As is apparent from the preceding quotes, in its ordinary, literal (dictionary)
meaning the word ‘may’ clearly does not equate to ‘must’. How then have courts
arrived at interpretations in certain matters that effectively say it does?
48. As Baxter 39 further explains, legislation not only empower s administrative
authorities but may also place them under a duty to act in certain instances .
Whether such a duty exists must be ascertained from the empowering legislation.
Whereas the use of the word ‘may’ usually indicat es that the administrative
authority is merely empowered or enabled to act if , in its discretion , it deems
such a course to be desirable, and the use of the injunction ‘must’ or ‘shall’ , on
the other hand, instead of the permissive ‘may’, could indicate that a positive duty
has been introduced, this is not always the case . A proper construction of the
legislation may show both that permissive language was employed for enabling
legislation may show both that permissive language was employed for enabling
purposes and, in addition, that a duty was nonetheless intended.
49. In Schwartz 40 Corbett JA (as he then was) held that while a statutory enactment
may therefore be couched in permissive terms, it does not necessarily follow that
37 Administrative Law (7th ed) at 265.
38 (1890) 44 Ch D 262.
39 Administrative Law (2nd issue) at 410-14.
40 Schwartz v Schwartz 1984 (4) SA 467 (A) at 473I-474B.
the legislature intended to confer a discretion to exercise it, on a decision-maker.
It may have to be construed as making it the duty of the person or authority in
whom the power is reposed, to exercise it when ‘the conditions prescribed as
justifying its exercise’ have been satisfied. Whether an enactment is to be so
construed depends inter alia on the language in which it is couched, the context
in which it appears, the general scope and object of the legislation, the nature of
the ‘thing’ (i.e. the act or conduct ) which is empowered to be done , and the
person(s) for whose benefit the power is to be exercised.
50. In a range of subsequent cases, including decisions of the Transkei High Court in
Vulindlela (1998)41 and Dlisani (1999), 42 the SCA in Groundwork Trust (2025),43
and the CC in Van Rooyen (2002),44 Saidi (2018),45 Premier, Gauteng (2021),46
Standard Bank (2022),47 Zuma (2025)48 and most recently EFF v The Speaker
(2026),49 courts have interpreted the use of the word ‘may’ in a variety of
statutory enactments in line with this approach, holding that on a proper
construction it denoted the conferral of a power which was coupled with a duty to
exercise it, in appropriate circumstances , rather than a simple discretionary
power. In EFF 50 the CC held that as a default ‘may’ empowers but is ‘otherwise
neutral on the existence of discretion’.
(b) The proper interpretation of ss 41(4) and 24
51. What the proper construction is which must be place d on the provisions of s
41(4) read with s 24 , therefore depends not only on the standard and trite
exercise of interpretation set out above, but also on a consideration of the
additional factors which were set out in Schwartz.
41 Vulindlela Furniture Manufacturers (Pty) Ltd v MEC, Department of Education & Culture, Eastern Cape & Ors
1998 (4) SA 908 (Tk) at 927B-G.
42 Dlisani v Minister of Correctional Services & Ano; Mathwetha v Minister of Safety & Security & Ano (1999) 20
ILJ 534 (Tk) at 538G-I; 1999 (1) SA 1020 (TkH).
ILJ 534 (Tk) at 538G-I; 1999 (1) SA 1020 (TkH).
43 Minister of Environmental Affairs v Trustees, Groundwork Trust & Ors 2025 (1) SA 98 (SCA) paras 28-30.
44 Van Rooyen v S [2002] ZACC 8; 2002 (5) SA 246 (CC) paras 178-184.
45 Saidi v Minister of Home Affairs [2018] ZACC 9; 2018 (4) SA 333 (CC) paras 16-17.
46 Premier, Gauteng v Democratic Alliance [2021] ZACC 21; 2022 (1) SA 16 (CC) para 59.
47 SAHRC v Standard Bank of SA Ltd [2022] ZACC 43; 2023 (3) SA 36 (CC) paras 24-29.
48 Zuma v President of the Republic of South Africa [2025] ZACC 21; 2025 (12) BCLR 1428 (CC) para 30.
49 EFF v The Speaker of the National Assembly & Ors [2026] ZACC 17 paras 49-52.
50 Id para 49.
52. As far as context is concerned the following provisions of the NWA are relevant.
In the first place, as previously noted , s 24 provides that a licence to abstract
water which is found underground on the property of another may be granted if
the owner of the land on which the resource is located consents thereto or failing
this, if there is ‘good reason’ to grant it. Given the terms of the section an
applicant for such a licence is obviously required to engage the owner first, with a
view to obtaining their consent, before proceeding to ask the res ponsible
authority to dispense with it. This is because, i f the owner has a valid and sound
basis to refuse consent, there may not be ‘good reason’ for the responsible
authority to grant a licence in the absence thereof. In Endangered Wildlife T rust
51 the SCA held that a ‘good reason’ means a ‘sound basis’ , in the light of the
purposes of the NWA and the particular facts and circumstances.
53. In my view t he terms of s 24 implicitly placed a duty on the 4 th respondent
municipality to formally notify the applicants of its intentions. Without doing so it
was not able to engage them with a view to requesting their consent. On a
sensible construction of s 24 the 4 th respondent had an implied obligation to
notify and then consult with the applicants , with a view to obtaining their possible
consent. In the absence of any such engagement with the applicants, by the 4 th
respondent, the 3 rd respondent was not entitled to dispense with their consent
summarily. On this ground alone his decision is reviewable.
54. The second obvious point that flows from the language of s 24 is that the
obligation to consult exists in respect of the owner of the land from which it is
sought to abstract groundwater. The section does not stipulate that only owners
who are (existing) lawful registered water users (as defined in terms of s 32 ),
need be consulted for their consent. Thus, whether the owner of the land has an
need be consulted for their consent. Thus, whether the owner of the land has an
existing lawful water use is not relevant. There may well be instances where a
licence is sought to extract groundwater which is found on the land of another,
when they do not draw or use any water from it.
51 Endangered Wildlife Trust & Ano v Acting Director-General, Department of Water & Sanitation 2025 (5) SA
343 (SCA) para 87.
55. In their founding and replying affidavits the applicants sought to contend that, on
the strength of letters which were sent to them by a Control Industrial Technician
in the employ of the Western Cape region of the Department of Water and
Sanitation, on 14 June 2023, they were recognized as having lawful ‘registered’
water uses in respect of the boreholes on their properties. However, as the
respondents pointed out, on a proper reading of the letters the registration was
seemingly only provisional, at best, and did not ‘render’ a ‘final lawful entitlement’
to the use of water.
56. In the third place, s 27 provides that in considering whether to issue a licence a
responsible authority must take into account ‘all relevant factors’. These therefore
include not only the factors specifically listed in the section, 52 but all others that
may be relevant for the decision. Amongst those listed are existing lawful water
uses,53 the need to redress the results of past racial discrimination, 54 and the
socio-economic impact the water use will have if authorised, as well as the
impact it will have if it is not.
57. That the interests of water users other than existing lawful ones must also be
considered is evident from s 27(1)(f), which stipulates that in considering whether
to issue a licence the responsible authority must also have regard for the ‘likely
effect’ of the proposed water use on the water resource and on ‘other water
users’, and ss 29(1)(a)(i) and (iii), which provide that a responsible authority may
attach conditions to a licence relating to the protection of the water resource in
question and ‘other existing and potential water users’ (sic). In like vein, s
41(4)(c) provides that in considering whether to issue a licence the responsible
authority may require the applicant to satisfy it that the interests of ‘any other
person having an interest in the land’ will not be adversely affected by it.
person having an interest in the land’ will not be adversely affected by it.
58. Given the terms of th ese provisions, it is evident that when considering whether
to grant a licence the responsible authority must therefore have regard for its
likely effect on all water users, not just lawful ones. This much is also clear if one
has regard for the recognition in the preamble to the Act that the ‘ultimate aim’ of
52 Subsections 27(1)(a)-(k).
53 Section 27(1)(a).
54 Section 27(1)(b).
the State’s management of the resource is to achieve the sustainable use of
water for the ‘benefit of all users’ (my emphasis), and that the purposes of the Act
55 include ensuring that water resources are protected, used, conserved ,
managed and controlled in ways which take into account the basic needs of
present and future generations and promote ‘equitable access’ to water and its
‘sustainable and beneficial use in the public interest’, and redress the results of
past racial discrimination.
59. Given our history of past racial discrimination , in many areas of the country
persons using water may not be existing lawful water users, in terms of s 32 of
the NWA, as their current water use may not be one that occurred within a period
of 2 years before the commencement of the Act in 1998 and/or was not
authorised under any law which was in force immediately prior thereto, nor has
their use been declared to be lawful, in terms of s 33. An interpretation of s s 27
which would allow a responsible authority to only have consideration for existing
lawful water uses (as referred to in s 27(1)(a)) and no regard for any other uses
would be at odds with the purposes which the NWA seeks to achieve and could
continue to reinforce past patterns of exclusion of water use, based on
discrimination. Consequently, a construction of s 41(4) which holds that a
responsible authority has an entirely discretionary power to ask an applicant who
seeks a licence in terms of s 24, only to give notice to existing lawful water users ,
would not be correct.
60. Such exclusive interpretations of ss 41, 24 and 27 would be at odds with the
constitutional injunction that , when interpreting legislation, a court must have
regard for the Bill of Rights, insofar as any fundamental constitutional rights may
be implicated. In this regard s 27(1)(b) of the Constitution provides that
‘everyone’ has the right to have access to ‘sufficient water’ and s 24(b) (i) and (ii)
‘everyone’ has the right to have access to ‘sufficient water’ and s 24(b) (i) and (ii)
provides that ‘everyone’ has the right to have the environment protected for the
benefit of present and future generations th rough reasonable legal and other
measures that seek to prevent ecological degradation , and secure the
ecologically sustainable development and use of natural resources.
55 Sections 2(a)-(d).
61. There are further provisions in the NWA which reflect that it would be anomalous
not to require the giving of notice to persons such as the applicants , as
landowners. In this regard, as previously pointed out s 41(2)(d) provides that the
responsible authority ‘must’ afford the applicant for any licence an opportunity to
make representations to it on any aspect of the licence application . There is no
logical or fair basis on which the applicant for a licence to extract groundwater
from land which belongs to another, in terms of s 24, should be afforded the right
to make representations in relation to its application but the landowner should
not. In addition, s 50(2)(a) provides that before amending or substituting a licence
condition a responsible authority may require the licensee to obtain the written
consent of ‘any affected person’ , and s 41(4) (b) provides that when considering
an application for a water use licence the responsible authority may require the
applicant to ‘take such steps as it may direct’ to bring the application to the
‘attention of interested persons’ and the general public. As owners of the land on
which the boreholes from which it was sought to extract water in terms of the
proposed licence were located, the Trust and 4 th applicant were clearly both
interested and affected parties.
62. In the circumstances, in my view, in the context of the 4 th respondent’s
application in terms of s 24 of the NWA for a water use licence which would allow
it to abstract groundwater f rom boreholes on the applicants’ property, without
their consent, the provisions of s 41(4) (b) as to the giving of notice to the
applicants as interested parties were not simply discretionary, and not only
conferred a power on the responsible authority to issue directions in this regard,
but also imposed a duty on it to exercise such power. The responsible authority’s
failure to do so resulted in it taking a decision without giving the applicants an
failure to do so resulted in it taking a decision without giving the applicants an
opportunity to provide their input and representations as to the licence which was
sought. It is common cause that the decision constituted administrative action,
and consequently the responsible authority‘s failure to provide the applicants with
a reasonable opportunity to make representations constituted a breach of the
applicants’ rights to procedurally fair administrative action, in terms of the
relevant provisions 56 of PAJA. On this ground too, the decision to grant the
licence cannot stand and must be set aside.
63. In their founding affidavit the applicants point ed out that the historical over -
abstraction of groundwater resulted in the failure of three of their boreholes since
2021 and an increase in salination levels with a resultant decrease in water
quality which has adversely impacted on their large -scale, commercial farming.
That there was a serious over -abstraction by the 4 th respondent is evident from
the GEOSS report, which noted that at the time some 864 000 m³ of groundwater
per annum was being taken from the three boreholes. According to the report the
three boreholes could sustain an annual abstraction rate of 522 025 m³ of
groundwater, some 45 000 m³ less than was ultimately authorised in terms of the
licence. These circumstances, amongst others, were material factors which were
relevant to the decision which the 3rd respondent was required to make, and the
applicants should have had an opportunity to make representations and
submissions pertaining to them, before the decision was made to authorise the
issue of the licence. At the very least, these factors could have had an influence
on the terms and conditions of the licence which was granted.
64. It is further apparent that, aside from not giving the applicants formal notice of the
application for the s 24 licence, the responsible authority did not cause the
application to be advertised in any newspapers or other media. From the hydro -
census which was performed by GEOSS it appear s that there were some 28
boreholes within a radius of 1.5 km of the applicants’ properties, which were also
drawing groundwater from the Wadrif aquifer or its surrounds. The owners of the
properties on which these boreholes were situated were not identified in the
GEOSS report. As interested and potentially affected parties they should also
GEOSS report. As interested and potentially affected parties they should also
have been notified of the 4th respondent’s application for a licence to abstract half
a million m³ of groundwater annually from the applicants’ boreholes, as the
quantity and scale/rate of the abstraction could potentially have a material impact
on their water uses and any farming or other enterprises which relied on the
56 Section 3(2)(b)(i)-(ii) read with s 3(3)(b), which, in order to give effect to the right to procedurally fair
administrative action requires an administrator in certain instances to give a person whose rights may be
adversely affected by a decision, an opportunity ‘to present and dispute information and arguments’ .
groundwater they were abstracting. Although the failure of the responsible
authority to provide notice of the 4 th respondent’s application to such other
parties was not raised as a separate ground for a review of the 3 rd respondent’s
decision, given the order which I propose making this is an aspect that the 3 rd
respondent should take into account when considering any fresh application
which may be submitted by the 4th respondent.
65. As water is a national resource which in terms of the NWA is to be shared
equitably and sustainably amongst and for the benefit of all users , both present
and future, it is imperative that when taking any decision to grant a licence for the
large-scale abstraction of groundwater from property belonging to a 3 rd party, the
responsible authority should encourage the participation and input of all affected
and interested persons/parties in the process and should provide such parties
with a reasonable opportunity to make representations and submissions in
regard thereto, in order to ensure that the decision which is arrived at is one
which is properly informed by all relevant factors which should be taken into
account and is rationally connected to the powers which the responsible authority
enjoys in terms of the NWA.
66. The parties were agreed that, in the event that the 3rd respondent’s decision were
to be set aside on the basis that the applicants had not been given formal notice
of the application for a water use licence and an opportunity to make
representations and submissions in relation thereto, it would be j ust and
equitable in terms of the applicable provisions of PAJA 57 to suspend the order
(setting aside the decision to issue the licence and the licence), for a period of 18
months, to allow the 4 th respondent time to submit a fresh application for a
licence in terms of s 24, after giving notice thereof to the applicants, and to
ensure that the residents of Lambert’s Bay w ill in the meantime continue to
ensure that the residents of Lambert’s Bay w ill in the meantime continue to
receive potable water drawn from the applicants’ boreholes.
67. Finally, as far as costs go, there is no reason why the or dinary principle sho uld
not apply i.e. that they should follow the event.
57 Section 8(1) of PAJA provides that a court dealing with an application for the review of administrative action
may grant any order that is just and equitable.
68. In the result, I make the following order:
1. The decision by the 3rd respondent on 23 March 2023 to issue a water use
licence (number 01/G30G/AB/100892) to the 4 th respondent, allowing it to
abstract a combined total volume of 567 648 m³ of groundwater per annum
from boreholes ‘LR1’, ‘OD514’ and ‘KKL5’ on the applicants’ land for a period
of 20 years, and the licence itself, are reviewed and set aside.
2. The 4th respondent is granted leave, if so minded, to resubmit an
application for a water use licence for the supply of groundwater for
Lambert’s Bay from boreholes ‘LR1’, ‘OD514’ and ‘KKL5’ , to the 3 rd
respondent for reconsideration, who in doing so shall have due regard for the
judgment in this matter and any submissions or representations which are
made by the applicants in respect of the application.
3. The operation of the order in paragraph 1 is suspended for a period of 18
months or until the 3 rd respondent has reconsidered and made a decision in
respect of the 4 th respondent’s fresh application for a water licence in terms
of paragraph 2, whichever is the earlier.
4. The parties are granted leave to approach the court (on the same papers
duly supplemented), to request an extension of the suspension of the order in
paragraph 1, and/or for any further or ancillary relief thereto, should that be
necessary.
5. The respondents shall be liable jointly and severally (the one paying the
other to be absolved), for the applicants’ costs, which shall include the costs
of two counsel where so employed, one on scale C and one on scale B.
M SHER
Judge of the High Court
Appearances:
Applicants’ counsel: P de B Vivier SC & J Whitaker
Applicants’ attorneys: TSP Inc (Cape Town)
First-Third respondents’ counsel: J Williams
First-Third respondents’ attorneys: State Attorney (Cape Town)
Fourth respondent’s counsel: M de Beer
Fourth respondent’s attorneys: Van Der Spuy (Cape Town)