Endangered Wildlife Trust and Another v Director-General (Acting) Department of Water and Sanitation and Another

The appellants, two non-profit environmental organisations, challenged the decision of the Acting Director-General of the Department of Water and Sanitation to grant a 15-year water use licence under the National Water Act 36 of 1998 (NWA) to Atha-Africa Ventures (Pty) Ltd for the Yzermyn Underground Coal Mine near Wakkerstroom, Mpumalanga. The licence authorised various water uses associated with underground coal mining. The appellants appealed internally to the Water Tribunal under s 148 of the NWA, which dismissed the appeal after extensive expert evidence. They then appealed to the Gauteng Division of the High Court under s 149(1) of the NWA on questions of law only; that appeal was also dismissed with costs. With special leave, the appellants appealed to the Supreme Court of Appeal, contending inter alia that the High Court failed to give an independently reasoned judgment, that the Tribunal misinterpreted s 24 of the NWA regarding landowner consent, failed properly to apply the precautionary principle under NEMA, and erred in relation to post-closure water treatment and strategic water considerations.

The appeal was dismissed with costs, including the costs of two counsel where so employed.

The judgment clarifies the narrow scope of appeals on questions of law under s 149(1) of the National Water Act and affirms the expertise and primary fact-finding role of the Water Tribunal in water use licensing disputes. It provides authoritative guidance on the interpretation of s 24 of the NWA concerning landowner consent, confirms a balanced and development-sensitive application of the precautionary principle under NEMA, and underscores that courts will not entertain attempts to recast factual disputes as legal questions in statutory appeals.