Atwell Sibusiso Makhanya NO and Minister of Water and Environmental Affairs v Goede Wellington Boerdery (Pty) Ltd

Goede Wellington Boerdery (Pty) Ltd (respondent) applied in November 2005 for a water licence under the National Water Act 36 of 1998 to use water from the Berg River for citrus production on seven hectares. ECPA Boerdery (Pty) Ltd, which held a water use entitlement for nearby Middelpos farm, agreed to surrender part of its entitlement to Goede Wellington after investing in more efficient drip irrigation. The Regional Director recommended approval in March 2006 after analyzing all factors under s 27(1) of the Act. However, in July 2008, the Chief Director: Water Use rejected the application, stating it did not contribute to redressing past racial discrimination. Goede Wellington appealed to the Water Tribunal, which dismissed the appeal on 5 May 2010, finding insufficient evidence that the application satisfied s 27(1)(b) regarding redressing past racial and gender discrimination. The respondent then sought judicial review in the North Gauteng High Court.

• Whether the decision of the Water Tribunal constitutes administrative action reviewable under the Promotion of Administrative Justice Act 3 of 2000 (PAJA)
• Whether the Tribunal erred in law by treating s 27(1)(b) of the National Water Act (redressing past racial and gender discrimination) as a prerequisite rather than one factor among many to be considered
• Whether it was appropriate for the High Court to substitute its own decision rather than remitting the matter to the Tribunal
• Whether a costs order should be made against a presiding officer (Mr Makhanya) performing an adjudicative function in his official capacity

1. The appeal of the first appellant (Mr Makhanya) is upheld with costs including the costs of two counsel. 2. The appeal of the second appellant (Minister) is dismissed with costs including costs of two counsel. 3. The High Court order is amended: The Tribunal's decision of 5 May 2010 is reviewed and set aside and substituted with an order upholding Goede Wellington's appeal and granting the water licence. The Second Respondent (Minister) is to pay Goede Wellington's costs, including the costs of two counsel.

1. The Water Tribunal's decision constitutes administrative action under PAJA because: (a) the test focuses on the nature of the function, not the functionary; (b) the Tribunal is not a court of law as members lack judicial tenure and security, may have no legal training, and the body lacks characteristics of a court; (c) the function was to determine whether to grant a water licence, which is administrative in nature. 2. Section 27(1) of the National Water Act requires consideration of all relevant factors in a balancing exercise; no single factor may be elevated to a prerequisite or given determinative weight without statutory authorization. A decision-maker who considers only one factor as essential and decisive, rather than balancing all prescribed factors, commits an error of law and acts unreasonably. 3. Exceptional circumstances justifying substitution under PAJA s 8(1)(c)(ii)(aa) exist where: (a) only one reasonable decision is possible; (b) the administrative body has been disbanded with no prospect of timely reconstitution; (c) remittal would cause unjustifiable prejudice through indefinite delay; and (d) fairness to the applicant requires judicial determination. 4. A costs order against a public official performing adjudicative functions in his official capacity requires proof of mala fides or grossly unreasonable conduct; mere legal error made bona fide is insufficient to justify such an order.

The Court made several significant observations: (1) On transformation: There is no single formula to achieve transformation objectives - it can be achieved in a myriad of ways, and courts must be careful not to impose crude approaches where a 'redress sledgehammer' is taken to otherwise exemplary applications. (2) On judicial deference: While courts must treat executive decisions with appropriate respect, this does not mean 'judicial timidity' - deference must not be shaped by unwillingness to scrutinize administrative action but by careful weighing of the need for and consequences of intervention. Courts may not rubberstamp unreasonable decisions simply because of complexity or the identity of the decision-maker. (3) On the National Water Act's objectives: The preamble recognizes water as scarce and the need for equitable allocation, but the ultimate aim is sustainable use for the benefit of all users. The redress objective must be read in this broader context. (4) On administrative appeals: Administrative appeals generally allow reconsideration by a higher authority that 'steps into the shoes' of the original decision-maker and decides anew, but each tribunal must be considered relative to its empowering legislation. (5) The Court noted with concern the state attorney's suggestion that remittal could be to a mediation panel under s 150, observing this was inappropriate as mediation panels are for dispute settlement, not licence adjudication.

This case establishes important principles in South African administrative law: (1) It clarifies that Water Tribunal decisions constitute administrative action reviewable under PAJA, not judicial decisions, based on factors including lack of judicial tenure, composition including non-legally qualified members, and the nature of the function performed. (2) It provides guidance on interpreting multi-factor statutory provisions in the context of transformation objectives - no single factor (including racial redress under s 27(1)(b) of the National Water Act) can be elevated to a prerequisite or given pre-eminence without statutory authorization; all factors must be balanced. (3) It demonstrates the application of PAJA s 8(1)(c)(ii)(aa) regarding when courts may substitute their own decisions in 'exceptional circumstances' - including where the administrative body has been disbanded, delay would cause severe prejudice, and only one reasonable outcome is possible. (4) It reinforces protection for public officials from costs orders absent proof of mala fides or grossly unreasonable conduct, preserving the principle that bona fide officials should not be deterred from making decisions by fear of personal costs liability. The case is significant for water law, administrative law remedies, and transformation jurisprudence.