Andries Gustav Le Grange N.O. and Others v The Minister of Water Affairs and Others

The first applicant was the executor of the estate of Mrs SM van Huysteen, owner of Portion 8 of the farm Plessiesdraai 655, Hoopstad District, Free State Province. When the Sand-Vet Government Water Scheme was established in the 1960s, water rights were allocated to Portion 8, to be exercised through two pumps numbered 73 and 111. Believing that separate water rights of 22.3 hectares had been allocated to each pump, Mrs van Huysteen entered into two agreements with the Kromkuil Trust - in August 2001 to transfer water rights relating to pump 73, and in March 2004 to transfer water rights relating to pump 111. A water use licence was granted in November 2001 for the first transfer. The Department of Water Affairs refused to approve the second transfer, contending that Portion 8 had only been allocated 22.3 hectares of water use in total (not per pump), which had already been transferred in 2001, leaving no further water rights available for transfer. In May 2008, the applicants applied under section 41 of the National Water Act 36 of 1998 for permanent transfer of 22.3 hectares allegedly allocated to pump 111, and sought a declaration under section 33 that this constituted an existing lawful water use. In November 2010, the second respondent refused the section 33 application. An appeal was lodged to the Water Tribunal in December 2010, but the Tribunal was suspended in mid-2012 pending legislative amendments and had not been reconstituted. The applicants then approached the High Court for relief.

• Whether the court has jurisdiction to grant relief despite the pending appeal before the suspended Water Tribunal
• Whether the suspension of the Water Tribunal renders the internal remedy under section 148 of the National Water Act ineffective for purposes of section 7(2) of the Promotion of Administrative Justice Act 3 of 2000 (PAJA)
• Whether the water use on Portion 8 in relation to pump 111 qualifies for declaration as an existing lawful water use under section 33 of the National Water Act
• Whether Portion 8 was allocated 22.3 hectares of water use per pump or 22.3 hectares in total
• Whether the water rights relating to pump 111 constitute existing lawful water use available for transfer

The application was dismissed with costs.

For so long as the operation of the Water Tribunal is suspended, parties who would ordinarily have a right of appeal to the Water Tribunal may approach the court directly for relief, as there is no effective internal remedy available that must first be exhausted under section 7(2) of PAJA. An internal remedy must be available, effective and adequate to constitute a remedy that must be exhausted before approaching a court. In government water schemes, water use allocations are made to particular areas of land and not to particular pumps, and the extent of allocated water use is determined by the schedule of rateable areas for the scheme. A declaration under section 33 of the National Water Act that a water use constitutes an existing lawful water use can only be made if: (1) the water use took place lawfully more than two years before the commencement of the Act and was discontinued for good reason; or (2) the water use had not yet taken place before commencement but would have been lawful and steps toward effecting the use had been taken in good faith before commencement.

The court observed that even if the internal remedy could still be said to exist despite the suspension of the Water Tribunal, the unavailability of the appeal would constitute 'exceptional circumstances' warranting exemption from the exhaustion requirement under section 7(2)(c) of PAJA. The court noted that internal remedies are designed to provide immediate and cost-effective relief, giving the executive the opportunity to rectify irregularities before parties resort to litigation, but emphasized that this requirement should not be rigidly imposed or used by administrators to frustrate aggrieved persons or shield administrative processes from judicial scrutiny. The court confirmed that the extent of an existing lawful water use under section 32 of the National Water Act is not the use that could have taken place lawfully in the qualifying period, but rather the use that actually took place in that period, though an exception exists for government water schemes under Circular 18 of 2001.

This case clarifies important principles regarding access to courts when internal administrative remedies are unavailable or ineffective. It establishes that the suspension or non-functioning of a statutory appeal tribunal (in this case the Water Tribunal) removes the obligation under PAJA section 7(2) to exhaust internal remedies before approaching a court for judicial review. The case also provides guidance on the interpretation of 'existing lawful water use' under the National Water Act and confirms that in government water schemes, water allocations are made to properties as a whole rather than to individual pumps or infrastructure. It illustrates the application of Circular 18 of 2001 in determining existing lawful water use in government irrigation schemes.