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

The appellant was executor in the estate of the late Petrus Willem Terblanche, who owned Portion 97 of the Farm Cornelia in the district of Koppies. The farm was downstream of Koppies Dam and within the Rhenoster River Government Water Scheme established under the Water Act 54 of 1956. The deceased held lawful water use rights under the National Water Act 36 of 1998 to irrigate five hectares of his 457-hectare farm. By 2003, due to drought and cessation of maintenance by the respondent, irrigation canals became inoperable. Water restrictions were imposed on 20 January 2003, and maintenance ceased during that year. From 2004 to 2005, no water was available in Koppies Dam due to drought. Rain resumed in February 2005, but water supply was not resumed. The deceased ceased paying water use charges, accumulating arrears of R44,000 by January 2005. In February 2009, the deceased and other water users applied for a mandamus to compel repairs; this was settled with the Scheme being discontinued and water users compensated for deregistration by 6 October 2010. Summons was issued shortly thereafter claiming damages of R250,000 for lost grain sorghum production for the period 2007-2010.

• Whether the water use right constituted a real right or statutory right that was not subject to prescription
• Whether there was an on-going or continuous breach of the water use right during 2007-2010
• When the debt (cause of action) arose for purposes of prescription under the Prescription Act 68 of 1969
• Whether the claim for damages had prescribed before the issue of summons
• Whether the respondent had an on-going statutory duty to maintain the canal and distribute water

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

1. Water use rights under the National Water Act 36 of 1998, while having statutory character, are conditional rights subject to compliance with preconditions including proper application procedures and payment of prescribed charges. 2. A water user cannot claim damages for breach of water use rights during a period when the user failed to exercise those rights by requesting water allocation or paying required charges. 3. For prescription purposes, a delictual cause of action arising from failure to maintain water infrastructure accrues when the infrastructure becomes inoperable, not continuously thereafter. 4. Under section 12(3) of the Prescription Act 68 of 1969, a debt is deemed due when the creditor has knowledge of the debtor's identity and the facts from which the debt arises; in the context of deteriorating infrastructure, this occurs when the infrastructure becomes inoperable. 5. The three-year prescriptive period for delictual claims applies to claims for damages arising from failure to maintain water infrastructure.

The Court noted the preamble to the National Water Act, emphasizing that water is a scarce and unevenly distributed national resource, and that national government has responsibility and authority over water resources including equitable allocation and redistribution. The Court observed that the ultimate aim of water resource management is to achieve sustainable use for the benefit of all users. The Court accepted for purposes of the case (without deciding) that the water use right did not constitute a mere contractual right, referencing Impala Water Users Association v Lourens NO & others 2008 (2) SA 495 (SCA) para 18. The Court also assumed without deciding that the respondent's omission to maintain the canal may have been negligent. The judgment noted that there was a discrepancy between the deceased's pleaded claim (regarding grain sorghum production) and his testimony (regarding dairy farming), though this was not determinative of the appeal.

This case clarifies important principles regarding water use rights under the National Water Act 36 of 1998 and their relationship with the law of prescription. It establishes that water use rights under the NWA, while not mere contractual rights, are not unconditional real rights that can ground claims for damages without the right holder having taken steps to exercise those rights. The case affirms that water use rights are subject to statutory conditions and regulatory requirements, including applications for water and payment of charges. It confirms that a failure to maintain infrastructure giving rise to inability to supply water constitutes a once-off delictual event for prescription purposes, not an on-going breach. The judgment reinforces the principle that prescription runs from when the cause of action arises, being when the creditor has knowledge of the debtor's identity and the facts from which the debt arises. The case is significant for water law, particularly in relation to discontinued water schemes, and for the law of prescription in the context of statutory rights.