Victory in water rights case

8 November 2021

The Supreme Court of Appeal (SCA) has ruled that water rights holders are entitled to transfer such rights in accordance with the provisions of the National Water Act and that the trading in such rights is not prohibited or unlawful.

The judgement, delivered on behalf of the majority of the judges of the SCA by Justice Clive Plasket (with a dissenting judgement by Justice Tati Makgoka), follows from three appeals in the Lötter, Wiid and South African Association of Water Users Associations (SAAFWUA) matters against a judgement by the Pretoria High Court in June 2020. In this matter the Pretoria Court dismissed the applications for a declaratory order on the correctness of a circular by the Department of Water and Sanitation (DWS), dating from January 2018, in which the DWS determined that water use entitlements could not be transferred.

Agri SA footed the legal costs for the Lötter and Wiid matters from its Voluntary Water Fund from the outset.

“The judgement has enormous significance for Agri SA and others,” says Janse Rabie, head of Agri SA’s Natural Resources Centre of Excellence. “The ability to legally be able to transfer water use entitlements in accordance with the provisions of section 25 of the NWA is vital, particularly for the irrigation agricultural sector. The transferability of water use entitlements in terms of the NWA were envisaged right from the outset and actively endorsed and supported by the DWS.”

From a legal point of view, particularly with respect to the transfer and trading of rights in accordance with the law, the issue is equally important, Rabie believes. “This judgement by the SCA is a highly significant vindication of the position held by Agri SA and others concerning the correct interpretation of the law in South Africa.”

A decision by the DWS on whether or not to appeal the ruling is now awaited.

Issued by Janse Rabie, Agri SA head of Natural Resources, 8 November 2021