Court ruling on water use rights welcomed

Johannes Möller, President of Agri SA, welcomed the ruling of Judge James Goodey on Friday in favour of the transfer of water use rights in the lawsuit between Goede Wellington Farming (Pty) Ltd and the Department of Water Affairs as well as the Minister of Water and Environmental Affairs. Möller described the verdict as a notable turning point in the history of water use rights in South Africa, after this case was heard in the Gauteng North High Court on 2 August 2011.

The frustration of many commercial farmers over the last few years about the Department of Water Affairs' refusal to grant permission to transfer water rights from one irrigation site to another or from an authorised water user to another applicant compelled Agri SA to challenge the particular dispensation. An application by Goede Wellington Farming, which was dismissed by the Water Tribunal, was consequently brought before the High Court.

Since 2007, Agri SA has been unsuccessful in its endeavours - by means of numerous negotiation initiatives with the Department of Water Affairs - to reach an agreement about the implementation of section 27(1) of the National Water Act. Several applications for the transfer or water use rights were rejected merely on grounds of non-compliance with section 27(1)(b) - a regulation that refers to the need to rectify the race and gender discrimination of the past. The other considerations and terms, as prescribed in section 27(1) of the Water Act, were apparently subordinate to the regulations of article 27(1)(b).

Against this background, Agri SA welcomes the verdict in the Goede Wellington Farming case in which the judge ruled that the Department of Water Affairs and the Water Tribunal erred by enforcing the need of affirmative action in section 27(1)b of the National Water Act as a predominant factor in the review of applications for water use rights or the transfer thereof. As stipulated by section 27(1), this factor is only one of eleven factors that should be taken into consideration. The other factors include the effective and beneficial use of water in the public interest, the socio-economic impact of water use if authorised as well as the socio-economic impact of water allocation.

In the case of Goede Wellington Farming, the judge concluded that the decision of the Water Tribunal is not only dismissed, but must also be replaced by a new decision to authorise the transfer of the specified water use rights to Goede Wellington Farming. The reasons for the judge to take such an extraordinary step and also order the Water Tribunal to pay Goede Wellington Farming's legal expenses, were explained as follows: 

This is the only reasonable decision that can be taken if all prescribed factors are fully taken into consideration; any further delays will be unfair and to the disadvantage of Goede Wellington Farming; and the Water Tribunal's actions demonstrate ineptness and incompetence. The Department, in conjunction with the Water Tribunal, was ordered to pay all legal costs because it continued with its wrongful implementation of section 27(1)(b) of the National Water Act.

In a recent survey conducted by Agri SA, only four applications for the transfer of water use rights were approved out of 138 cases that were analysed. The survey indicated that approximately 2 100 hectares were relevant with an estimated loss of income of R308 million, whilst almost 2 600 employment opportunities were sacrificed. Another Agri SA survey indicates that there is water available for nearly 97 000 additional hectares irrigation land in seven of the 19 water catchment management areas that has been specifically earmarked for emerging irrigation farmers. Only a very limited portion of this has been developed for emerging farmers to date.

"Agri SA would like, as a matter of urgency, to enter into discussions with the Minister of Water and Environmental Affairs to advance practical steps in terms of the court order for the wider irrigation community in order to optimise potential development and job creation opportunities in the irrigation sector. An altered approach by the state pertaining to the transfer of water use rights could result in a positive contribution to government's development goals whilst, at the same time, promote food security", says Möller.

Statement issued by Mr Johannes Möller, President of Agri SA, and Mr Nic Opperman, Director: Natural Resources, August 22 2011

Click here to sign up to receive our free daily headline email newsletter