The Second Respondent (Vuna Enterprises) applied for and was granted a water use licence on 9 December 2009 in respect of its mining operations which bordered and were carried out in the immediate vicinity of a portion of the Appellant's farm in Mpumalanga. Prior to the granting of the licence, the Appellant communicated his concerns to both Respondents in writing on several occasions (on 4 and 18 November 2009). The Appellant only became aware of the licence on 20 January 2010 when he received a letter from the First Respondent in response to his earlier letters. On 19 February 2010, the Appellant lodged an appeal against the decision to grant the licence. No objections were invited by the responsible authority and no formal objection was submitted by the Appellant in terms of section 41(4) of the National Water Act. On 19 July 2010, the Second Respondent submitted its Statement of Defence raising a preliminary point that the Appellant lacked locus standi in judicio to appeal.
The appeal was dismissed on the preliminary point. The Tribunal ruled that the Appellant did not have the right to lodge an appeal with the Water Tribunal in terms of section 148(1)(f) of the National Water Act. The file was ordered to be closed.
The binding legal principle established is that for purposes of section 148(1)(f) of the National Water Act, a person only qualifies as an 'objector' with the right to appeal against a water use licence decision if: (1) the responsible authority has required the applicant to publish a notice inviting objections under section 41(4); (2) such a notice has been published prescribing a time period for objections; and (3) a formal written objection has been lodged within that prescribed time period. Informal written correspondence expressing concerns, absent such a formal objection process, does not confer standing to appeal under section 148(1)(f). The word 'timeously' in section 148(1)(f) must be read as requiring objection within a pre-determined or prescribed time period set in accordance with section 41(4), not merely 'within a reasonable time' before a decision is made.
The Tribunal made the obiter observation that where a party feels aggrieved by a decision and/or the manner in which a decision was made by the responsible authority, and such party does not have the right to appeal to the Water Tribunal against such a decision, such party is free to explore other legal avenues available such as having recourse to the High Court. This suggests that while the appellant may lack standing before the Water Tribunal, alternative remedies such as judicial review in the High Court may be available. The Tribunal also noted that it is 'very difficult to determine what is contemplated by the Legislature in section 148(1)(f)' of the NWA (as submitted by the First Respondent's counsel), acknowledging some interpretive complexity in the provision. Additionally, the Second Respondent indicated it wished to see the matter decided on merits to avoid a further appeal to the High Court on a question of law, and was prepared to allow the appellant access to documents and a postponement, suggesting some recognition of potential procedural unfairness in the process.
This case is significant for establishing a restrictive interpretation of the right to appeal under section 148(1)(f) of the National Water Act. It establishes that informal written correspondence expressing concerns about a water use licence application does not constitute a valid 'objection' for appeal purposes. The case clarifies that the right to appeal as an objector under section 148(1)(f) is procedurally dependent on the responsible authority first requiring the publication of a notice inviting objections under section 41(4), and an objection being formally lodged within the prescribed time period. This has important implications for public participation in water use licensing decisions, as it limits the category of persons who can appeal to the Water Tribunal. The decision also highlights potential gaps in procedural fairness where the responsible authority exercises discretion not to require publication of a notice inviting objections, thereby potentially excluding affected parties from the appeal process. The case demonstrates the formalistic approach taken by the Water Tribunal to standing requirements and emphasizes the importance of compliance with statutory procedural requirements.