A recent North Gauteng High Court judgment overturned a decision by the Water Tribunal to withhold a water licence from a white farmer based on his race.
In 2007 Thornton Abbott, who farms maize near Senekal on the Sand River, bought a water quota from an upstream farmer for R250 000, on condition that he obtain a licence from the Department of Water Affairs (DWA).
Abbott applied to the regional office in Bloemfontein, whose chief director of water use recommended in a letter to the national chief director of water use that the water rights be transferred. However, the application was rejected because it did not “promote redress of the past racial and gender discrimination”.
Abbott’s subsequent appeal to the Water Tribunal was quashed on identical grounds. According to Martin Grütter, Abbott’s attorney, “The criteria for awarding water rights are contained in the National Water Act. Of the 11 criteria, only two deal with the redress of past discrimination, yet the Water Tribunal’s judgement relied entirely on these. There was no attempt to balance these requirements with other important factors such as the efficient use of the resource.”
Agri SA’s Nic Opperman said that in finding for Abbott, the court had come to the same conclusion as it did in late August, when it awarded water rights to a white farmer in the matter between Goede Wellington Boerdery and the water and environmental affairs minister.
“After years of trying to point out the over-reliance on the racial clauses of the Water Act in the awarding of water licences, Agri SA joined that action to demonstrate what we have been trying to say all along, which is that the awarding of water rights in practice is not consistent with the Department of Trade and Industry’s guidelines on BEE,” said Opperman.
The DWA first appealed the costs order in the Goede Wellington Boerdery case and later appealed the principle, so the matter will move to the Supreme Court of Appeal. The DWA has 30 days in which to appeal the Abbott judgment but Grütter believes it already enjoys landmark status.
“In the future, farmers will know they won’t be prejudiced due to subsection 27(1)(b) of the Water Act. They will have the guts to appeal the decision of the tribunal because there is a precedent now,” he said.
Mike Mlengana, president of the African Farmers’ Association of South Africa, said there has to be a racial bias in the allocation of rights, in order to level the economic playing field, as white farmers currently have a strong monopoly on water, thanks to previous unjust policies.
“However, in a case like this where the only BEE group in the area turned down the water quota, common sense dictates that the quota should be used by whoever can use it efficiently. The goal here is not race, it’s economic growth,” he pointed out. – Sean Christie