On 30 and 31 October 2019 the Pretoria High Court heard three matters that are crucial to the way in which water use rights in the agricultural sector may be used in the future.
The matters (respectively the Lötter, Wiid and SAAFWUA matters), deal with the ability of holders of water use entitlements to sell and transfer such entitlements.
The transfer of water use entitlements has long been regarded by farmers to be lawful in terms of previous and current water laws. This position was officially endorsed by government until January 2018 when, by way of internal circular, the Department of Water and Sanitation did a complete about face.
The applicants in the aforementioned matters (of which two are farming enterprises and the third represents water users’ associations) brought their applications as a result of the Department’s implementation of the findings contained in the aforementioned circular.
Agri SA, which is closely involved in one of the matters, maintains that the ability to transfer water use entitlements as allowed for in terms of the relevant provisions of the National Water Act, is crucial to the efficient utilization of water in South Africa.
As a tragic unforeseen consequence of the Department’s revised interpretation of the relevant provisions of the National Water Act, government has itself inadvertently become an obstacle to much-needed transformation and upliftment projects in the agricultural sector. Commercial farmers who wish to transfer water use entitlements as part of their BEE or transformation projects to suitable partners, cannot currently do so.
Judgement in the Lötter, Wiid and SAAFWUA matters has been reserved, but is expected before the end of year.