15 March 2023
Joint release by Agri SA and SAAFWUA
Constitutional Court ruling a crucial victory for water rights holders
Agri SA and the South African Association for Water Users Associations (SAAFWUA) welcome the decision of the Constitutional Court to dismiss the appeal by the Department of Water and Sanitation (DWS) in a crucial victory for the holders of water rights in South Africa. The Court conclusively ruled that water rights holders are entitled to transfer such rights in accordance with the provisions of the National Water Act. It also confirmed that receiving financial compensation for transferred water use entitlements is neither prohibited nor unlawful in South Africa.
The unanimous verdict, of the Constitutional Court delivered by Judge Madlanga, follows the November 2021 victory by the applicants in the Lötter, Wiid and South African Association for Water Users Associations (SAAFWUA) matters in the Supreme Court of Appeal.
The matter emanated from a circular issued in January 2018 in which the DWS determined that water use entitlements could not be transferred. The circular contradicted the provisions of section 25 of the National Water Act as well as the DWS’s own interpretation of the law and its established practices in water use entitlement transfers, dating from 1998 when the Act came into effect.
Agri SA supported and paid for the legal costs in the Lötter and Wiid matter from the outset.
“Agri SA’s view on the necessity of being able to transfer water use entitlements in accordance with section 25 of the National Water Act has now finally been affirmed by the Constitutional Court,” says Janse Rabie, Agri SA Legal and Policy Executive. “The ability to transfer such entitlements from one person to another, and from one property to another, is crucial with respect to efficiency in the use of water, the value of farmland, and to property entitlements in general. To that end, this judgment vindicates our steadfast resistance to government’s continued assault on property entitlements.”
According to Nic Knoetze, CEO of SAAFWUA, the organisation decided in 2018 to ask for a declaratory court order because the interpretation of sections 25(1) and 25(2) had a negative impact on the water user (irrigation farmer) and the Water Users Association (WUA) or Irrigation Board. The judgment by the High Court forced the applicants (Lötter and Wiid whose cases Agri SA financially supported, and SAAFWUA) to appeal. “The favourable ruling by the Constitutional Court will now enable WGVs and Irrigation Boards to manage water effectively and sustainably at the local level.”
Agri SA’s president, Jaco Minnaar, congratulated and thanked the applicants and their legal teams for staying the course in this vital matter. “The Constitutional Court’s ruling stands to benefit the agricultural sector on various fronts. Agri SA will continue to engage with and influence government to create and maintain a regulatory and policy environment and society in which all farmers can thrive.”
Agri SA Executive: Legal and Policy
C: 076 451 9601
Chief Executive Officer, South African Association for Water Users Associations (SAAFWUA)
C: 082 872 9751
15 March 2023