Lemoenshoek Plase (Edms) Bpk v Departement van Waterwese en ander

Lemoenshoek Plase (Edms) Bpk (applicant) is a farming company owning the farm Lemoenshoek, consisting of 22 separate properties. The Lemoenshoekrivier flows through or alongside some of applicant's properties. Applicant purchased the farm in 2001 from the curator of the insolvent estate of A DS Fullard. There are two dams on the property: the Lemoenshoekdam and the larger Tierkloofdam. The dispute concerns a division structure (verdeelstruktuur) on second respondent Richard Butt's property, approximately one kilometer downstream from the Lemoenshoekdam, which applicant uses to divert water to the Tierkloofdam. On 25 August 2014, the Department of Water Affairs (first respondent) issued directives to applicant under section 53(1)(a) of the National Water Act 36 of 1998, ordering applicant to cease taking water from the river via the division structure and to apply for a water use license. Applicant brought two applications: a review application to set aside the directives, and an application for interim relief to establish a servitude of impoundment and watercourse over second respondent's property pending final determination of the servitude application.

• Whether the Department's directives issued under section 53(1)(a) of the National Water Act were lawful and validly issued
• Whether applicant had existing lawful water use rights under the 1956 Water Act preserved by the National Water Act
• Whether applicant's inter-basin transfer of water from the Lemoenshoekrivier to the Tierkloofdam was lawful
• Whether applicant could use surplus water on properties not riparian to the river from which the water was extracted
• Whether applicant required a permit under section 9B(1) of the 1956 Water Act
• Whether applicant was required to apply for a license under section 40 of the National Water Act
• Whether applicant was entitled to an interim servitude of impoundment and watercourse over second respondent's property
• The correct interpretation of sections 9, 10, and 9B of the Water Act 54 of 1956
• The correct interpretation of sections 32, 33, 34, 40, 53, 127, 129, and 130 of the National Water Act 36 of 1998

The Department's directives in paragraphs 2.2, 2.3, and 4 of its letter dated 25 August 2014 were reviewed and set aside. First respondent was ordered to pay two-thirds of applicant's costs in both applications. Pending final determination of the servitude application in case number 23702/2010, applicant was granted an interim servitude to divert water via the division structure, limited to two-thirds of the water flowing in the Lemoenshoekrivier. One-third of applicant's overall costs in both applications was reserved for determination at the hearing of the main servitude application.

Section 10 of the Water Act 54 of 1956 does not contain an express or implied requirement that surplus water must be used only on riparian land, unlike section 9(1) which expressly limits normal flow to use on riparian land. The express inclusion of a territorial limitation in section 9(1) and its absence from section 10 indicates legislative intention not to impose such a limitation on surplus water use. Section 9B(1) of the 1956 Act prohibits only the construction, alteration, or enlargement of waterworks above specified capacities without a ministerial permit, not the operation of existing waterworks constructed before the provision came into force. Section 40(1) of the National Water Act refers to statutory requirements to obtain a license, not ad hoc demands by officials. A person with existing lawful water use under section 32 may continue such use until formally required by competent statutory authority to apply for a license. Administrative directives issued under section 53(1) of the National Water Act must be based on correct legal principles and are reviewable where they result from application of wrong legal principles, failure to apply mind, consideration of irrelevant factors, or unreasonableness.

The court noted that Prof J C de Wet had recommended during the drafting of the 1956 Water Act that a principle be included that public water may only be used on riparian land, but the legislature did not follow this recommendation. The court observed that the Department admitted that the building of the Lemoenshoek and Tierkloofdam was in accordance with sections 9B and 9C and that storage of water therein constituted existing lawful water use. The court commented that in granting an interim servitude it must take a practical and robust approach where there are factual disputes that cannot be resolved on the papers. The court noted that its order deals only with rights under the National Water Act and does not purport to determine rights and obligations under the National Environmental Management Act or Environmental Impact Assessment Regulations. The court observed that disputes over the exact form and dimensions of the interim structure might be resolved by agreement between the parties in light of the court's findings in the review application, failing which the parties could approach the court with brief motivation of their competing proposals.

This case provides important guidance on the interpretation of water rights under the 1956 Water Act that were preserved under the National Water Act 1998. It clarifies that: (1) surplus water rights under section 10 of the 1956 Act are not limited to use on riparian land, unlike normal flow rights under section 9; (2) inter-basin transfers of water are not per se unlawful; (3) section 9B(1) of the 1956 Act only regulates the construction of new waterworks, not the operation of existing ones; and (4) the requirement to apply for a license under section 40 of the National Water Act must be triggered by a statutory requirement, not merely ad hoc requests from officials. The case demonstrates the courts' supervisory role over administrative action affecting water rights and the balance required between existing lawful use rights and environmental/downstream user concerns.