The Constitutional Court has conclusively ruled that water rights holders are entitled to transfer such rights in accordance with the provisions of the National Water Act, dismissing the appeal by the Department of Water and Sanitation (DWS), Agri SA and the South African Association for Water Users Associations (SAAFWUA) said in a joint statement on Wednesday.
The parties, welcoming the decision, described this as a “crucial victory” for the holders of water rights in South Africa, confirming 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 Mbuyiseli Madlanga, follows the November 2021 victory by the applicants in the Lötter, Wiid and 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’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 Agri SA legal and policy executive Janse Rabie.
“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.”
SAAFWUA CEO Nic Knoetze says that 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 WUAs and Irrigation Boards to manage water effectively and sustainably at the local level.
“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,” concludes Agri SA president Jaco Minnaar.