Exxaro Coal (Mpumalanga) (Pty) Ltd and Another v The Minister of Water Affairs and Another

The applicants, two Exxaro Coal companies, were issued directives on 11 April 2012 and 13 June 2012 by the Department of Water Affairs alleging contraventions of section 22 of the National Water Act, 1998. The applicants lodged appeals to the Water Tribunal in terms of section 148(1)(j) of the Act. However, the Water Tribunal's chairperson's contract ended and members' terms expired on 31 August 2012. Despite the pending appeals and statutory obligations, the Minister of Water Affairs failed to appoint new members to the Water Tribunal. Instead, on 9 September 2012, the Minister issued a directive purportedly in terms of section 150(1) of the Act, placing the Water Tribunal's operations in abeyance pending legislative amendments and directing that appeals be dealt with by a Mediation Panel. The applicants refused to submit to mediation and approached the court seeking suspension of the directives and an order compelling the Minister to appoint a Water Tribunal.

• Whether the Minister has the power to suspend or disband the Water Tribunal established by the National Water Act
• Whether the Minister's directive to replace the statutory appeal process with mediation is lawful and constitutional
• Whether the applicants' right to appeal in terms of section 148(1)(j) of the National Water Act can be substituted with mediation
• Whether the Minister's failure to appoint members to the Water Tribunal violates the applicants' constitutional right to access to courts in terms of section 34 of the Constitution
• Whether mediation under section 150(1) constitutes an adequate internal remedy that must be exhausted before approaching the court

1. The application was declared urgent. 2. Pending final determination of the appeals lodged on 23 May 2012 and 13 July 2012, the operation and execution of the directives issued on 11 April 2012 and 13 June 2012 were suspended. 3. Prayers 3, 4 and 5 (relating to orders compelling appointment of the Water Tribunal and declaring the mediation directive invalid) were postponed sine die. 4. Costs were awarded against the first respondent (Minister of Water Affairs), including costs of two counsel. The court left open the possibility for applicants to approach the court on the same papers if the Minister failed to rectify the situation within a reasonable time.

The binding legal principles established are: (1) A Minister has no power to suspend, disband or refuse to appoint members to a statutory tribunal established by legislation, even if legislative amendments are contemplated. (2) The exercise of public power must comply with the Constitution and the doctrine of legality; failure to comply with mandatory statutory obligations is unconstitutional and unlawful. (3) A statutory right of appeal to a specifically designated tribunal cannot be unilaterally replaced by an alternative dispute resolution mechanism without legislative authorization. (4) Section 34 of the Constitution guarantees the right to have disputes resolved by an independent and impartial tribunal where legislation provides for such a tribunal, and administrative action that prevents access to such tribunal violates this constitutional right. (5) Mediation cannot constitute an adequate internal remedy where it cannot provide binding determination of legal rights and where a statutory appeal mechanism exists. (6) Administrative action taken without statutory authorization and in circumvention of statutory obligations is ultra vires and invalid under PAJA. (7) Courts have a duty under section 237 of the Constitution to ensure that organs of state perform their constitutional obligations diligently and without delay.

The court made several non-binding observations: (1) The court noted its reluctance to intrude into the executive domain and thus postponed certain relief sine die rather than immediately ordering the Minister to appoint the Water Tribunal, though it indicated applicants could return on the same papers if the situation was not rectified. (2) The court observed that there was no timeline for the proposed legislative amendments and no draft amendment was available, suggesting the indefinite suspension of the Water Tribunal was particularly problematic. (3) The court noted that 60 appeals were pending before the Water Tribunal, highlighting the importance of its function. (4) The court commented on the prejudice to the applicants from widely publicized directives without opportunity to clear their names through appeal. (5) The court observed that it was "strange" that despite knowing the Water Tribunal members' terms would expire on 30 August 2012, no plan was in place to replace them beforehand. (6) The court noted that section 5 of PAJA (request for reasons) is not peremptory and there was no duty on applicants to request reasons. (7) The court cited Oudekraal Estates, S v Mabena, and International Trade Administration Commission v Scaw to reinforce broader principles about the rule of law and constitutional supremacy.

This case is significant in South African administrative and constitutional law for several reasons: (1) It reinforces the principle that no organ of state, including a Minister, can unilaterally suspend or fail to implement legislation simply because it does not suit their purposes or pending proposed amendments. (2) It affirms that statutory rights of appeal cannot be substituted with alternative mechanisms (like mediation) without legislative authorization. (3) It confirms that section 34 of the Constitution guarantees access to independent tribunals established by legislation, and administrative action that undermines this right is unconstitutional. (4) It demonstrates judicial willingness to enforce the rule of law and doctrine of legality against executive non-compliance with statutory obligations. (5) It illustrates the application of section 237 of the Constitution, which requires all constitutional obligations to be performed diligently and without delay. (6) It provides guidance on when courts may grant interim relief while allowing the executive an opportunity to remedy constitutional breaches. The case serves as an important check on executive power and emphasizes that all arms of state must operate within constitutional and legislative boundaries.