David Gace v Department of Water and Sanitation

The Appellant, a trustee of Corona Farm Trust, conducted farming activities in Winterton, KwaZulu-Natal, and held an existing water use licence (WUL) issued in 2006 for 530,000m³/annum for Dam 1. In 2016, the Appellant attempted to apply for a WUL to build a new dam (Dam 2) but did not complete the application process. Despite lacking authorization and being provided with detailed guidance and forms by the Respondent in August 2016, the Appellant commenced construction of Dam 2 in January 2019 without: (i) a water use licence under the National Water Act; (ii) environmental authorization under NEMA; or (iii) dam safety approvals. The Appellant had received dam safety classification in February 2017, which explicitly warned that it did not exempt compliance with water use licensing and environmental requirements. Construction threatened graves of former employees, prompting a complaint. Following a site inspection on 30 January 2019, the Respondent issued a Notice of Intention to issue a directive, followed by a section 53(1) directive on 13 March 2019 requiring cessation of unlawful water uses and decommissioning/rehabilitation of Dam 2. The Appellant appealed the directive on 6 June 2019 (filed late without condonation). Despite the directive, the Appellant continued to use the dam, which was found full of water with active pumping during a 2021 inspection.

• Whether the section 53(1) directive issued by the Respondent was lawful, rational, reasonable, and constitutional
• Whether the Respondent had authority under section 53(1) of the NWA to order demolition of an unlawfully constructed dam
• Whether ordering demolition constitutes unconstitutional deprivation of property under section 25 of the Constitution
• Whether 'rectification' under section 53(1) includes retrospective authorization or only demolition and rehabilitation
• Whether the pending water use licence application (WULA) should prevent enforcement of the directive
• Whether the appeal, filed late without condonation, should be heard

The appeal is dismissed. The directive issued by the Respondent on 13 March 2019 is confirmed. The Appellant is directed to comply with the directive within fourteen (14) days.

Section 53(1) of the National Water Act empowers the Respondent to direct 'any action' to rectify contraventions, which includes ordering demolition of unlawfully constructed dams and rehabilitation of affected areas. 'Rectification' in the context of an outright illegal activity (not merely breach of licence conditions) means restoring the status quo ante, not retrospective authorization. The NWA, unlike NEMA section 24G, does not provide for retrospective water use authorization; illegal structures must be demolished and the land rehabilitated before a fresh application can be considered. A directive issued lawfully under section 53(1) does not constitute arbitrary deprivation of property where the structure is unlawful ab initio and prohibited by a law of general application aimed at sustainable water resource management. The exercise of enforcement discretion is rational where it is connected to the legitimate objects in section 2 NWA and the Respondent's trusteeship mandate in section 3. Water users cannot commence unlawful activities and then force authorization by presenting authorities with completed projects; this undermines regulatory discretion and the rule of law. Appeals under section 148 do not suspend directives issued under section 53(1) (per section 148(2)(a)), and appellants must comply pending appeal determination.

The Tribunal noted research showing that illegal dam construction by commercial farmers in the Thukela catchment area represents a strategy to force licensing by presenting authorities with fait accompli, illustrating limited monitoring and enforcement capacity. The Tribunal observed that this trend constitutes a contestation of formal processes that should be discouraged to prevent undermining of the NWA's objectives. The Tribunal made obiter observations about the Deputy Minister's 2021 statements expressing grave national concern about illegal dams and indicating enhanced enforcement, showing no policy of routinely condoning illegal structures. The Tribunal commented that the Appellant's hydrologist's report, which sought to rebut the directive rather than enable compliance, demonstrated intransigence rather than cooperation. While the Tribunal heard the merits despite late filing without condonation (in the interests of justice and speedy resolution), it noted this remains an unresolved procedural issue. The Tribunal observed that unlawful water storage impacts the water balance, ecological reserve, and downstream ecosystems, even where no human water users complain, as the Respondent is custodian of ecological needs.

This case is significant in South African water law as it: (1) confirms the broad enforcement powers of the Department of Water and Sanitation under section 53(1) of the NWA, including authority to order demolition of unlawfully constructed water infrastructure; (2) establishes that unlike NEMA section 24G, the NWA does not permit retrospective authorization of unlawful water uses; (3) reinforces that willful non-compliance with water licensing requirements cannot be rewarded by presenting authorities with a fait accompli to force authorization; (4) clarifies that pending water use licence applications do not suspend enforcement directives or excuse ongoing contraventions; (5) emphasizes the Respondent's constitutional and statutory mandate as trustee of the nation's water resources under section 3 NWA; (6) demonstrates the application of rationality review to administrative enforcement actions in the environmental and water context; (7) addresses the problem of illegal dam construction by commercial farmers, which undermines water allocation reform and the rule of law; and (8) confirms that section 148(2)(a) NWA directives are not suspended by appeals and must be complied with despite pending appeals.