P E Lourens NO and Others v Impala Water Users Association

The respondent, Impala Water Users Association, was a water management institution established under Chapter 8 of the National Water Act 36 of 1998. It notified its members (including the appellants, who were irrigation farmers) of water use charges for the 2002/2003 year, which included R800 per hectare for construction and maintenance of the Paris-Bivane Dam. The charges were due in December 2002. On 1 February 2003, the association restricted water supply to farmers it believed were in arrears, purportedly in terms of s 59(3) of the Act. The farmers obtained a spoliation order on 14 February 2003. The association appealed unsuccessfully to the Supreme Court of Appeal in Impala Water Users Association v Lourens NO [2004] 2 All SA 476 (SCA) ("Impala 1"). Without awaiting the outcome of that appeal, between June-July 2003 the association served fresh notices on alleged defaulters under s 59(3), affording 14 days for representations. On 3 November 2003, the association launched an application in the Natal Provincial Division for an order authorizing restriction of water supply. Nicholson J granted the order on 1 July 2004. The farmers appealed with leave.

• Whether a water user association has power to make and collect water use charges (including dam financing components) under ss 57 and 59 of the National Water Act 36 of 1998
• The proper interpretation and application of s 59(3) and (4) of the Act regarding the procedure for restricting water supply to defaulting users
• Whether the debt must be admitted or judicially established before invoking s 59(3) and (4)
• Whether proof of debt can occur in the same court proceedings seeking authorization to restrict water supply
• The standard and nature of evidence required to prove water use charges

The appeal succeeded. The order of the court a quo (excluding paragraph 4) was set aside and replaced with an order dismissing the application with costs including costs of two counsel. The respondent was ordered to pay the costs of appeal including costs of two counsel. The application to amend the grounds of appeal was dismissed with costs including costs of two counsel.

1. Water user associations established under Chapter 8 of the National Water Act 36 of 1998 have the power to make and collect water use charges (including dam financing components) in accordance with the Minister's pricing strategy, as authorized by s 57(2) read with Schedule 5 paragraph 18 and Schedule 4 of the Act. 2. Section 59(3) of the Act, which permits restriction or suspension of water supply for non-payment of water use charges, is a coercive remedy akin to execution without judicial sanction and must be strictly construed. 3. Section 59(3) can only be invoked when the water use charge is "legally payable" and "unquestionably due" - meaning the fact and amount of the debt must be either admitted by the debtor or judicially established before the statutory procedure can be relied upon. 4. The representation procedure under s 59(4) must take place after the debt has been admitted or judicially established; it is not a procedure for determining liability but for making representations as to why restriction should not be imposed despite established liability. 5. An association cannot prove the debt for the first time in proceedings seeking authorization to restrict water supply; the debt must be established beforehand. 6. A party seeking to prove indebtedness on paper without supplementary oral evidence must present facts and figures that are readily explicable and capable of logical connection by the court.

Brand JA (with whom Scott JA, Van Heerden JA and Howie P concurred) expressed a different view on the procedural sequence required by s 59(3) and (4). He held that while the requirements of both subsections must be satisfied, there is no prescribed order requiring debt establishment before the s 59(4) hearing. In his view, the association could invite representations on the premise or hypothesis that the debt is due, and then bear the onus of proving the debt if challenged in spoliation proceedings or in proceedings seeking authorization to restrict supply. He disagreed that a debtor who wrongfully disputes liability should be granted a period of grace denied to one who admits default. Heher JA suggested that water user associations might be better advised to rely on properly prepared assessment rolls (as contemplated in paragraph 18 of Schedule 5 and their constitutions) which could have a value akin to liquid documents for obtaining judgment. The court noted that the dam financing component was not meaningfully distinguished by counsel from other water use charges, creating an inconsistency in the farmers' position since they conceded liability for R240 per hectare "water use charges" but disputed the dam component.

This case is significant in South African water law as it clarifies the powers of water user associations under the National Water Act 36 of 1998 to levy and collect water use charges, including for waterworks such as dams. It establishes important procedural requirements for the restriction of water supply under s 59(3) and (4), particularly the requirement that debt must be established with certainty (by admission or judicial determination) before the coercive remedy of water restriction can be invoked. The case demonstrates judicial vigilance in ensuring strict compliance with statutory procedures before permitting exercise of draconian self-help remedies. It also provides guidance on evidentiary standards for proving water use charges. The case illustrates the hierarchy and functions of water management institutions under the Act, including the relationship between catchment management agencies and water user associations.