Makhanya v Goede Wellington Boerdery (Pty) Ltd

Goede Wellington Boerdery (Pty) Ltd applied for a water use licence under the National Water Act 36 of 1998 to use water from the Berg River for citrus farming. The application relied on a transfer of unused water entitlement from a related entity, ECPA Boerdery (Pty) Ltd, made possible by improved irrigation efficiency. The Regional Director recommended approval after considering all factors in s 27(1) of the Act. However, the Chief Director refused the application on the basis that it did not contribute to redressing past racial and gender discrimination. Goede Wellington appealed to the Water Tribunal, which dismissed the appeal, focusing primarily on s 27(1)(b). The North Gauteng High Court reviewed and set aside the Tribunal’s decision, substituted it with an order granting the licence, and ordered costs against both the Minister and the presiding Tribunal member, Mr Makhanya. Appeals followed to the Supreme Court of Appeal.

The appeal by the first appellant (Mr Makhanya) was upheld and the costs order against him was set aside. The appeal by the second appellant (the Minister) was dismissed. The High Court’s order reviewing and setting aside the Tribunal’s decision and substituting it with an order granting the water licence to Goede Wellington Boerdery (Pty) Ltd was confirmed.

The case clarifies that decisions of the Water Tribunal constitute administrative action reviewable under PAJA, notwithstanding its appellate and quasi-judicial role. It affirms that all factors in s 27(1) of the National Water Act must be properly weighed and that redress considerations are not a rigid prerequisite. The judgment also provides important guidance on when courts may substitute administrative decisions and limits the circumstances in which costs may be awarded against adjudicators.