On Friday, 26 October 2018, the Western Cape High Court granted interim relief in favour of Wittewater Boerdery (Pty) Ltd in a matter concerning the temporary transfer of water use entitlements under section 25(1) of the National Water Act, 36 of 1998 (the NWA).
The matter, which was brought on an urgent basis by well-known Western Cape farmer, Mr Johann Conradie on behalf of Wittewater Boerdery, illustrates of the extreme harm the irrigated agricultural sector may potentially suffer as a result of an about-face of the DWS concerning its established policy of allowing the transfer of water use entitlements by irrigation boards and water users associations in terms of section 25 of the NWA.The rights at stake which Conradie seeks to defend is the right to transfer 227 hectares of licensed water use rights from one farm to another in the Piketberg area. The water is to be used for purposes of irrigation of a wheat crop to be harvested within the next couple of weeks, as well as new crops to be planted during December 2018. Combined potential losses amount to approximately R13,5 million as well as the employment opportunities of some 80 farmworkers. The transfer of water use entitlements by irrigation boards and water users associations in their catchment areas has been a well-established – and seemingly lawful – practice for many years.
In its court papers, Wittewater Boerdery stated that such transfer would have been authorised had it not been for the DWS’s incorrect interpretation and application of the relevant statutory provisions. The Court agreed with Wittewater Boerdery’s arguments in this regard.
In its counter arguments, the DWS raised the important ancillary issue of the competence of irrigation boards to allow transfers of water use rights as being water management authorities. In dealing with this issue, the Court came to the conclusion that the DWS’s stance and opinion to the effect that irrigation boards do not have the power to authorise the temporary transfer of water use rights to another property in the same vicinity (although not owned by a licensee), was equally incorrect.
Agri SA, which has supported Mr Conradie from the outset, is highly concerned about the revised policy position by the DWS in terms of which it no longer adheres to its long-standing position of allowing the transfer of water use entitlements (temporary or permanent) in terms of the provisions of section 25 of the NWA. The ability to transfer water use entitlements, which is generallly regarded by water experts to be a mechanism whereby water use efficiency is achieved, also touches on important issues of food surety as well as agricutlural property values.
“While the arguments concerning the legality and effect of the DWS revised policy and interpretation of section 25 of the NWA remains to be heard at a later date, the result of the Western Cape High Court’s order in Wittewater Boerdery’s application for interim relief is at this stage encouraging” said Janse Rabie, Head of Agri SA’s Natural Resources Centre of Excellence.