Appeal court ruling on water transfers welcomed

Agri SA welcomed the Appeal Court ruling between Goede Wellington Boerdery (Pty) Ltd and Atwell Sibusiso Makhanya and the Minister of Water and Environmental Affairs on an application to transfer a water use licence.

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Goede Wellington, on the banks of the Berg River in the Western Cape, applied for 7ha of water rights to be transferred from a nearby farm to its land in 2005. In early 2006 the regional director of water affairs recommended to the chief director for water use that the licence be approved. The chief director declined the application citing section 27(1)(b) of the Water Act – the racial and gender inequality redress clause – had not been adhered to.

Agri SA president Johannes Möller welcomed the ruling that Goede Wellington’s application, as previously confirmed by the High Court, be granted with an order for costs against the Minister. However, the order for costs against the Tribunal – represented by Makhanya – was set aside by the Appeal Court as there was no evidence of gross negligence. According to Möller, the department had followed an approach using their version of black empowerment to the exclusion of all other factors listed in the Act.

Möller said it was tragic that a matter that had so obviously been handled wrongly by the Department should be subject to a lengthy court process. “The approach followed by the department did not serve the need for effective water use, economic growth and even black economic empowerment. The Appeal Court ruling will certainly serve as guidance when the Department of Water Affairs must in future process applications for water transfer,” said Möller.

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