Johannes Joubert and Others v Die Benede Blyderivier Watergebruikersvereniging and Another

The appellants are farmers along the Blyde River in the Hoedspruit area who farm on riparian land. They are all members of the first respondent, the Benede Blyderivier Watergebruikersvereniging (WGV), which replaced the Blyderivier Besproeiingsraad (BBR) on 25 January 2002 pursuant to the National Water Act 36 of 1998. Since at least the early 1950s, the appellants' land received irrigation water from the Blyde River channeled through the Jonkmansspruit Canal. In 1987, the Deputy Minister of Water Affairs issued Regulation 1207 under the Water Act 54 of 1956, which set a maximum amount of 9,900 cubic meters of water per hectare per year that could be provided from a state waterwork. For decades, the BBR had released enough water into the canal so that each farmer could extract 9,900 m³ at their individual outlet sluices. This required more water to be released at the intake point to account for canal losses. On 15 September 2004, the WGV decided to release only 9,900 m³ per hectare per year (plus 15% for canal losses) at the intake point near where water is diverted from the Blyde River, effective 1 October 2004. The appellants brought an urgent application for interim relief to enforce what they claimed was their right to receive 9,900 m³ at their individual farm sluices.

• What is the meaning of 'existing lawful water use' under the National Water Act 36 of 1998?
• How should the 1987 Ministerial Notice setting the maximum quantity of water from a state waterwork be interpreted?
• At which point should the maximum water quantity be measured - at the intake from the state waterwork or at individual farm outlets?
• Whether the appellants had established a prima facie right for purposes of interim relief?
• Whether the practice of the BBR in supplying water that allowed for canal losses constituted a lawful existing use that could be continued under the 1998 Act?

The appeal was dismissed with costs to be paid by the appellants jointly and severally to both the first and second respondents.

The binding legal principle established is that where a Ministerial regulation sets a maximum quantity of water that may be extracted from a state waterwork, that maximum must be measured at the point of extraction from the state waterwork itself, not at individual delivery points downstream. An 'existing lawful water use' under section 32 of the National Water Act 36 of 1998 must have been lawful under previous legislation; a practice that contravened regulatory limits, even if long-standing, does not constitute a lawful existing use that may be continued under the 1998 Act. Water use rights are subject to the constitutional and contractual obligations arising from membership in water user associations, and riparian owners' rights are limited to reasonable use of water.

The court observed that measures have been in place from the earliest days of water management in South Africa to ensure that no user uses water unreasonably, and this has become a leitmotif of the 1998 Act. The court noted that one could say that the appellants' water rights are statutory in origin but are rounded off contractually through their membership obligations. The court also commented on the practical impossibility of setting a fixed maximum water allocation if it were to vary according to the length and condition of distribution infrastructure. The court noted that alternative water supply schemes (a pipeline directly from the Blyderiver Dam) had been implemented for some farmers who previously drew water from the Jonkmansspruit Canal, thus reducing the volume of water released into the canal.

This case is significant in South African water law as it clarifies the interpretation of 'existing lawful water use' under the National Water Act 36 of 1998 and establishes important principles regarding the measurement point for maximum water allocations from state waterworks. It confirms that historical practices that contravened statutory limits cannot constitute lawful existing uses that may be continued under the 1998 Act. The judgment reinforces the principle that riparian rights are limited to reasonable use and that water allocation regulations must be interpreted in a manner that protects the water source. It also clarifies the interaction between statutory water rights and contractual obligations arising from membership in water user associations. The case illustrates the transition from the Water Act 54 of 1956 to the National Water Act 36 of 1998 and the continuity of regulatory limits on water use.