Stephanus de Lange NO v The Minister of Water and Environmental Affairs

The appellant was the executor in the estate of the late Petrus Willem Terblanche, who owned Portion 97 of the Farm Cornelia in the district of Koppies. The deceased had exercised lawful water use rights under the National Water Act 36 of 1998 to irrigate five hectares of his farm from the Koppies Dam via the Rhenoster River Government Water Scheme. By 2003, irrigation had ceased due to drought and water restrictions. The irrigation canals fell into such disrepair during 2003 that they could no longer supply water. From 2004-2005, no water was available in the dam due to drought. Even after the drought ended in early 2005 and water became available, the respondent did not resume water supply as the Scheme had effectively ended and the canals were inoperable. The deceased stopped paying water use charges (accumulating arrears of R44,000 by January 2005) and never requested water during 2007-2010. In 2009, the deceased and other water users applied for a mandamus to compel repairs, which was settled with the Scheme being discontinued and compensation paid by 6 October 2010. Shortly thereafter, the deceased instituted action claiming damages for alleged losses from 2007-2010 due to inability to irrigate.

• Whether the deceased's water use right was an unrestricted real right that entitled him to ongoing water supply
• Whether there was a continuing or ongoing breach of the deceased's water use right that would avoid prescription
• Whether the deceased's delictual claim for damages arising from the respondent's failure to maintain the irrigation canals had prescribed
• When did the debt arise for purposes of prescription under section 12(3) of the Prescription Act 68 of 1969

The appeal was dismissed with costs, including the costs of two counsel.

A water use right under the National Water Act 36 of 1998 is not an unconditional or unrestricted real right, but is subject to statutory preconditions including applying for water allocations and paying prescribed charges. There is no actionable ongoing breach of a water use right where the right holder has failed to exercise the right by complying with statutory requirements. For prescription purposes under the Prescription Act 68 of 1969, a delictual cause of action arising from failure to maintain water infrastructure arises when the infrastructure becomes inoperable due to lack of maintenance, not when subsequent damages are suffered. The debt is deemed to arise when the creditor has knowledge of the debtor's identity and the facts from which the debt arises - in this case, when the appellant knew of the canal degradation and the State's role in allowing it to happen (2003), not when damages were later calculated (2007-2010).

The Court noted, without deciding, that even if the respondent's omission to maintain the water canal was assumed to be negligent, this did not affect the outcome on prescription. The Court also observed that it would be appropriate for the respondent to require water users to indicate their water needs in advance to enable proper management of the scarce water resource. The judgment noted the apparent inconsistency between the deceased's pleaded case (claiming loss of grain sorghum production) and his testimony (claiming loss from dairy farming operations), though this inconsistency did not need to be resolved given the prescription finding.

This case clarifies the nature and limits of water use rights under the National Water Act 36 of 1998. It establishes that such rights are not unrestricted real rights but are conditional upon compliance with statutory requirements including applications for water and payment of charges. The case is significant for its application of prescription principles to water use disputes, establishing that a delictual cause of action for failure to maintain water infrastructure arises when the infrastructure becomes inoperable, not when damages are later suffered or calculated. It demonstrates that water users cannot claim ongoing breaches of water rights when they themselves have failed to exercise those rights by complying with statutory preconditions. The judgment reinforces the principle that water is a scarce national resource subject to State control and management, and that water use rights exist within a comprehensive regulatory framework that imposes obligations on users.