Stephanus de Lange NO v The Minister of Water and Environmental Affairs

The deceased, Petrus Willem Terblanche, owned a farm downstream of the Koppies Dam and within the Rhenoster River Government Water Scheme. He enjoyed an existing lawful water use under the National Water Act 36 of 1998, limited to irrigating five hectares. From 2002–2003, drought conditions arose and water restrictions were imposed. During 2003 the respondent ceased operating and maintaining the irrigation canals, which became dilapidated and unusable, resulting in irrigation stopping. From 2004–2005 no water was available in the dam. The Scheme was effectively abandoned by all parties, and the deceased stopped paying water charges and did not apply for water. In 2009, water users sought a mandamus, which was settled in 2010 on the basis that the Scheme was discontinued and water use rights deregistered in exchange for compensation. Thereafter, the deceased instituted an action for damages allegedly suffered between 2007 and 2010 due to the failure to supply water. The respondent raised a special plea that the claim had prescribed.

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

The case clarifies that existing lawful water use rights under the National Water Act are limited statutory rights subject to compliance with regulatory conditions and do not constitute unrestricted real rights. It confirms that failure by the State to maintain water infrastructure gives rise, at most, to a delictual claim that prescribes once the damage-causing omission renders the infrastructure inoperable, and that such failure does not amount to a continuous wrong where the right is not exercised.