Escarpment Environment Protection Group and Another v Director General: Department of Water and Sanitation and Another

The first and second appellants appealed against a decision by the Director General of the Department of Water and Sanitation (first respondent) to issue a Water Use License (WUL No: 05/X11D/AGJ/1583) to Analisa Mining Industrial Services CC (second respondent) on 8 April 2013. The WUL was valid for three years with a two-year review and authorized water use activities for open cast coal mining at Lefa Coal Mine on portion 4 of the farm Kaalplaats 453 JS near Belfast in Emakhazeni, Mpumalanga Province. The mining right had been granted on 5 July 2010 for five years. In May 2008, the second respondent published a notice about its intention to start the mine and held a public participation meeting regarding the mining right application. A representative of the first appellant (Koos Pretorius) attended and raised environmental and water concerns. However, appellants contended they were never notified of or provided information about the subsequent WUL application process and therefore could not lodge objections. The appellants only became aware of the WUL on 3 August 2015 (over two years after it was granted) and received a copy on 9 September 2015. They lodged their appeal on 9 October 2015 (two and a half years after the license was issued but 30 days after receiving the copy). No reasons or record of decision were provided by the first respondent until the hearing date.

• Whether the appellants had locus standi to lodge an appeal to the Water Tribunal under section 148(1)(f) of the National Water Act when they had not lodged any written objection to the water use licence application
• The proper interpretation of section 148(1)(f) of the National Water Act regarding who qualifies as 'any other person who has timeously lodged a written objection against the application'
• Whether failure by the responsible authority to conduct public participation under section 41 of the National Water Act excuses non-compliance with the requirement to lodge written objections
• Whether the appeal had become moot due to the expiry of the three-year WUL

The appeal was dismissed. The Tribunal ordered that: (1) the appellants did not timeously, or at all, lodge any written objections to the water use licence application by the second respondent; (2) as a result, the appellants do not have legal standing to lodge the appeal; and (3) the appeal is dismissed.

Section 148(1)(f) of the National Water Act grants standing to appeal to the Water Tribunal only to: (1) the applicant for a water use licence, or (2) any other person who has timeously lodged a written objection against the application before the responsible authority made its decision. While "any other person who has timeously lodged a written objection" should be interpreted liberally to include persons who lodge objections of their own accord (not only in response to formal section 41 invitations or ministerial directives), this interpretation cannot extend to persons who have lodged no objection whatsoever, regardless of the reasons for their failure to object. An objector for purposes of section 148(1)(f) is a person who has actually participated in the water use licence application process by lodging a written objection, whether on invitation or of their own volition. A person who has not lodged any objection is not an objector contemplated by the section, particularly where other legal remedies were available to enable participation (such as applications under PAJA or PAIA).

The Tribunal made several important obiter observations: 1. Section 41 of the National Water Act is not mandatory in all circumstances. The use of "may" accords considerable discretion to the responsible authority to determine whether public participation processes are required, coupled with a duty to conduct such processes "in a proper case." 2. Rule 12 of the Water Tribunal Rules on subpoenas applies only to subpoenaing witnesses and evidence in preparation for hearing a valid appeal already properly before the Tribunal. It cannot be used by a person seeking to validate their standing to lodge an appeal in the first place. 3. The Tribunal has no jurisdiction to adjudicate or provide remedies under NEMA, PAJA, or PAIA. Appellants cannot use the section 148 appeal process to obtain information and reasons for a decision from the responsible authority that should have been sought through other statutory mechanisms. 4. Although the procedural issues raised were important for clarifying participatory rights and procedural fairness, and the matter had practical effect on similarly situated persons, these issues could not be determined because the appellants lacked standing. The interests of justice favored clarifying the extent of the class of persons with locus standi. 5. The matter was not moot despite the expiry of the three-year WUL, because the determination had practical effect on persons similarly situated who intended to or had already lodged appeals without having lodged prior objections.

This decision clarifies the limits of standing to appeal to the Water Tribunal under section 148(1)(f) of the National Water Act. While affirming that the provision should be interpreted liberally to include objections lodged without formal invitation under section 41 (which is discretionary), the Tribunal drew an important bright line: standing does not extend to persons who never lodged any objection at all before the decision was made. The case is significant for: 1. Delimiting the class of appellants with access to the Water Tribunal and preventing floodgate litigation; 2. Clarifying that while section 148(1)(f) should be interpreted purposively and liberally, there are limits to such interpretation; 3. Emphasizing that interested parties have obligations to participate actively in licensing processes and cannot circumvent procedural requirements by claiming lack of notice when other remedies (PAJA, PAIA) were available; 4. Balancing participatory rights with finality in administrative decision-making; 5. Distinguishing between persons who objected but were ignored (who have standing) and persons who never objected at all (who do not). The decision reinforces that while public participation is important in water resource management and environmental decision-making, parties must use available legal mechanisms to secure their participatory rights rather than seeking retrospective relief through the appeal process.