The second applicant, Haasfontein Beleggings (Pty) Ltd, erected weirs in the Waterval River and Kolspruit without proper authorization, preventing the flow of water downstream to the fifth respondent, Springbokdraai Boerdery (Pty) Ltd. Both parties conducted farming activities and depended on the Waterval River for irrigation, with the fifth respondent's farm situated downstream from the second applicant's property. The fifth respondent lodged a complaint with the Department of Water and Sanitation, which issued a directive on 12 February 2016 in terms of section 53(1) of the National Water Act No. 36 of 1998. The directive required the second applicant to: (a) cease all water use activity immediately and provide proof within five working days; (b) appoint an independent environmental consultant to assess impact and compile a rehabilitation plan within 30 days; and (c) implement all recommendations in the rehabilitation plan. The fifth respondent had previously obtained court orders from Mabuse J (7 September 2016) and Barn J (2 November 2016) directing the removal of the obstruction. The applicants challenged the constitutionality of section 148(2)(a) of the National Water Act, which provides that an appeal does not suspend a directive given under section 53(1).
The application was dismissed with costs, including costs of three counsel for the first, second and third respondents.
Section 148(2)(a) of the National Water Act No. 36 of 1998, which provides that an appeal does not suspend a directive given under section 53(1), does not infringe constitutional rights under sections 25, 33, or 34 of the Constitution. Water is a shared resource over which no one can claim ownership, and therefore the enforcement of water use regulations does not constitute deprivation of property under section 25. The availability of recourse to courts under section 7(2) of PAJA (allowing exemption from exhausting internal remedies in exceptional circumstances where it is in the interest of justice) and section 149 of the Water Act (appeal to High Court on questions of law) ensures access to courts under section 34. The internal appeal mechanism under section 148(1) read with the PAJA review procedures provides fair, cheap and speedy administrative justice as required by section 33. The Department of Water and Sanitation acts lawfully when exercising its statutory enforcement powers under the National Water Act to ensure compliance and protect the constitutional right of access to sufficient water under section 27 of the Constitution.
The court questioned whether the phrase 'unless the Minister directs otherwise' at the end of section 148(2) applies only to paragraph (b) or to both paragraphs (a) and (b), suggesting the Minister might have power to suspend directives under paragraph (a) as well. However, the court made no final determination on this interpretive question as counsel for the respondent appeared to concede the Minister was not entitled to intervene under paragraph (a). The court expressed disagreement with this concession but did not decide the issue definitively. The court also observed that the applicants appeared to turn a blind eye to the wrongfulness of their water use and ignored the rights of the fifth respondent to use water from the shared stream, noting that their right to access water must be lawful and within limits.
This case affirms the constitutional validity of section 148(2)(a) of the National Water Act, which permits immediate enforcement of directives issued under section 53(1) without suspension pending appeal. The judgment clarifies the relationship between administrative law remedies, constitutional rights, and water law. It confirms that internal appeal mechanisms under sectoral legislation (read with PAJA section 7) do not violate constitutional rights to access to courts or just administrative action, provided alternative recourse exists in exceptional circumstances. The case emphasizes that the National Water Act implements the constitutional imperative in section 27 (right to access to sufficient water) and that the state's enforcement powers are necessary to protect shared water resources and ensure equitable access. It reinforces that water is a shared resource over which no private ownership can be claimed, distinguishing property rights from water use rights. The judgment demonstrates the balance between individual rights and the public interest in water resource management, confirming broad regulatory and enforcement powers of the Department of Water and Sanitation.