Resurrecting the water tribunal

By Wayne Ncube

The dissolution of the Water Tribunal nine months ago created a fair amount of controversy and now that the water and environmental department is reviving the administrative body, the question is whether it will be any more effective than it was before.

The Tribunal is a specialised administrative body meant to provide an informal, expeditious, cost-effective and easily accessible platform for dispute resolution in the implementation of the National Water Act. It hears appeals against administrative decisions and directives relating to water which is critical to industry and communities. Given water’s elevated importance nationally, a fully functional Water Tribunal is a necessity.

The rationale offered by Water and Environmental Affairs Minister Edna Molewa in initially dissolving the Tribunal was to change the law governing it, thereby making it more efficient. An amendment to the Act increasing the Tribunal’s powers is definitely welcome, however, suspending the Tribunal while waiting for amendments to come into force seems absurd given the length of time such a process could take.

The Tribunal’s previous operations were not without fault but addressing some of these problems does not necessarily require amendments to current legislation. The Tribunal’s main failings related to its accessibility and efficacy. It is important that previous shortcomings are highlighted and those that can be dealt with before amendments come into force must be done so as soon as the new chairperson is appointed.

A number of legislative and operational factors also restricted access to the Water Tribunal. It had limited jurisdiction conferred to it by section 148 of the National Water Act. This limited list was reduced further by the Tribunal’s insistence on not considering appeals where a decision — say, to grant a licence — had not been made. Given that the Promotion of Access to Information Act (Paja) defines decision to include a “decision” not made. This exclusionary interpretation by the Tribunal was inconsistent with the Paja.

Limiting courts to specific administrative actions and not including failure to make a decision within the Tribunal’s jurisdiction led to a situation where a great number of administrative actions could only be appealed in the more expensive high courts. This caused limited accessibility to appeal for most parties adversely affected by decisions made in terms of the Act.

The Water Tribunal heard a large number of cases relating to water use licences. The issuance of water use licences is important to a number of people because the granting of a licence to one party can adversely affect the rights of another — particularly in mining operations. The absence of legislative guidance on the correct interpretation of various provisions of the Act, coupled with the Tribunal’s chosen interpretation of the Act, led to severely restricted access.

Those who objected to the issuing of a water use licence are not able to challenge a decision if the responsible authority has not invited comments or objections before issuing the license — even when they have made every effort to timeously submit objections, letters or comments against the application. This usually leaves court as the only option to have licence decisions reviewed. Having objectors approach the courts to have water-related matters reviewed defeats the purpose and benefit of having the Water Tribunal in place.

The Tribunal has, at various points, also shown a lack of competency in interpreting and applying the law. A Tribunal that displays legal incompetence cannot operate effectively in addressing the concerns before it. In the Goede Wellington case — an appeal of a Water Tribunal decision in the high court — the court remarked that it had admitted it lacked a legal expert when making its decision. The court further remarked that the decisions had displayed “an alarming degree of ineptitude, a lack of appreciation of what is required and a lack of judgement, rationality and common sense”.

To further highlight continuous incompetence, the high court in Guguletto Family Trust found that there “was no legal basis for the tribunal’s decision”.

The Tribunal’s erroneous interpretation of section 27(1) of the National Water Act has led to principle objectives of the Act not being promoted by both the Water Tribunal and the department.

The Act seeks to achieve, among other things, the sustainable use of water for the benefit of all users and to protect the quality of water resources. The Act’s purposes include promoting the efficient, sustainable and beneficial use of water in the public interest and facilitating social and economic development and reducing and preventing pollution and degradation of water resources. The Tribunal’s inability to hear appeals of administrative decisions that would lead to these objectives has already been mentioned. The locus standi requirement of section 148 (1) of the Act leads to a situation where the Tribunal will not review decisions to grant water-use licences to mining firms. This allows the most egregious polluters to adversely reduce and degrade the quantity and quality of water without fear of review outside the slower and more expensive high courts.

Section 27(1) of the Act lists 11 factors to be taken into account when granting water-use licences. The department has frequently decided such applications based on only one consideration: “Redressing the results of past racial and gender discrimination”. The Tribunal has also consistently agreed with the department’s misinterpretation of section 27(1), adjudicating appeals as if this one consideration was a prerequisite for granting of a water-use licence and, accordingly, not considering all relevant factors as required by section 27(1) of the Act. The high court has stated that this position is wrong. The effect of this mistaken interpretation is that applications that address other objectives stated in section 2 of the Act would be denied and not properly reviewed by the Water Tribunal.

All of this highlights the critical importance of having a number of legal experts on the Water Tribunal and also the importance of extensive jurisprudence with regards to water rights. Legislative reform, though important, would serve little value given the previous failure of the Tribunal to interpret and apply the current law. The proposed revival of the Water Tribunal is welcome news but the Tribunal’s operations require serious review if it to serve any meaningful value.

Wayne Ncube is a candidate attorney with Lawyers for Human Rights.