High Court gives landmark ruling on water rights in farmers' favour

2018-10-26 16:24


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West Coast farmers have won a landmark court case concerning water rights that will have far-reaching consequences for South African agriculture.

The Western Cape High Court ruled on Friday that it was lawful for the Lower Berg Irrigation Board to approve applications for the temporary transfer of water rights from one farm to another.

The effect of the judgment is that irrigation boards around the country will be empowered again to take decisions regarding water use.

The Department of Water Affairs and Sanitation issued a circular in January this year saying that irrigation boards did not have the power to do so – although they had been doing so for years with the concurrence of the department.

READ: Farmers head to court to challenge policy on transfer of water rights

The department’s change of heart had caused consternation among the agricultural sector, as farmers feared the system of temporary transfer of water rights could fail if decisions had to be made by officials in the Pretoria or regional offices, instead of by irrigation boards around the country which had intimate knowledge of the farming situations in their areas.

Without water rights, many farms could not function.

The department itself acknowledged in court papers that its change of policy in the 2018 circular had been "hotly debated".

The court has now ruled that the department's stance was "clearly incorrect" .

"I can come to no other conclusion than the department's stance and opinion that irrigation boards do not have the power to authorise a temporary transfer of water use rights to another property in the same vicinity, but not owned by the licensee, is clearly incorrect," Acting judge Con Joubert said.

He said the department had not disputed that irrigation boards had authorised such transfers of water rights every year. Departmental officials had even been present at these meetings.

The applicants in the case, Wittewater Boerdery Pty Ltd and Groot Winterhoek Koelkamers, farming operations near Piketberg, therefore had a legitimate expectation that it was lawful for irrigation boards to authorise such transfers, the court said.

Joubert ruled that the 227 hectares of water that the applicants wanted to transfer temporarily to another farm, Zanddrift, may be used on Zanddrift.

The court also ruled that the department may not take any action that would infringe on this ruling.

The court judgment was made pending a decision by the Water Tribunal.

The applicants had earlier approached the Water Tribunal about the matter, but had been told that the tribunal was dysfunctional because it had no chairman, and none was likely to be appointed before April 2019.

In the meantime, the applicants had crops that needed to be irrigated. The wheat crop, due to be harvested in November, was worth R6m and they intended to plant a maize crop in December.

The jobs of about 80 farmworkers were at risk if the farm did not have water for irrigation.

Nicholas Veltman, attorney for the applicants, described this as a landmark judgment.

"We are delighted with the judgment, which in effect means that irrigation boards around the country will be empowered again to take decisions regarding water use for agriculture," he said.

Read more on:    water

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