After the Supreme Court of Appeal (SCA) on November 9 ruled that trading of water rights is not unlawful, the Department of Water and Sanitation (DWS) has filed an appeal to the Constitutional Court against the decision.
In turn, the SCA judgment followed three appeals, including by the South African Association for Water Users, against a judgment by the Pretoria High Court in June 2020 that water-use rights cannot be transferred.
The court heard three separate applications where the applicants sought a declaratory order contending for a proper interpretation of Section 25 of the National Water Act relating to the transfer of water-use rights.
The Pretoria High Court dismissed the applicants for a declaratory order on the correctness of a circular by DWS, which was published in January 2018, in which the department determined that water-use entitlements could not be transferred.
Agri SA, which helped to foot the legal costs for the three applicants against the High Court judgment, comments that the decision of the DWS to appeal is not entirely surprising, given the fact that the SCA itself was divided on the matter.
Agri SA Natural Resources Centre of Excellence head Janse Rabie maintains that the legal transfer of use entitlements is vital, particularly for the irrigation agricultural sector.
While the DWS’s appeal is under way, applications for the transfer of water-use rights will not be processed, pending the outcome of the court process.