The Federation for Sustainable Environment v The Department of Water Affairs and Others

On 11 June 2010, the Department of Water Affairs (1st Respondent) issued an integrated water use licence to Chemwes (Pty) Ltd (2nd Respondent) for impeding or diverting the flow of water in a watercourse, disposing waste in a manner which may detrimentally impact on a water resource, and altering the bed, banks, course and characteristics of a watercourse. The licence application was launched in January 2010. The 1st Respondent did not require the 2nd Respondent to give suitable notice in newspapers and other media as contemplated in section 41(4) of the National Water Act 36 of 1998 (NWA), and no such notice was given. On 8 March 2011, the Federation for Sustainable Environment (Appellant) lodged an appeal with the Water Tribunal in terms of section 148(1)(f) of the NWA against the issuing of the licence. The Appellant had not lodged written objections during the licence application process as required by section 41(4)(a)(ii) of the NWA.

• Whether the Water Tribunal has jurisdiction to hear an appeal lodged by a person other than the licence applicant where the Responsible Authority did not require suitable notice to be given under section 41(4) of the NWA
• Whether the Appellant has locus standi to lodge an appeal under section 148(1)(f) of the NWA without having lodged written objections during the application process
• Whether the Water Tribunal has incidental and ancillary powers to extend its jurisdiction beyond the statutory provisions of the NWA
• Whether the interpretation of section 148(1)(f) should be informed by constitutional rights in sections 9, 24, 27, 33 and 34 of the Constitution
• Whether there is an anomaly between sections 41(2)(c) and 41(4) of the NWA regarding comments versus objections

The Water Tribunal ruled that it has no jurisdiction to hear the appeal. The appeal was dismissed and the file was closed. It was not necessary to determine whether the appeal was lodged late or whether there were grounds to condone any late lodging.

The Water Tribunal has no jurisdiction to hear an appeal by a person other than the applicant for a water use licence where the Responsible Authority (Department of Water Affairs) did not require the applicant to give suitable notice in newspapers and other media as contemplated in section 41(4) of the National Water Act 36 of 1998. Section 148(1)(f) of the NWA limits the right to appeal to persons who have timeously lodged written objections against the licence application. The Water Tribunal is a creation of statute and only possesses powers, functions and duties assigned to it by the Legislature through the NWA. While the Tribunal may have incidental and ancillary powers, these must be derived from the provisions of the NWA itself and cannot extend the Tribunal's jurisdiction beyond what is statutorily conferred.

The Water Tribunal observed that its decisions are administrative rather than judicial in nature, applying section 33 (administrative justice) rather than section 34 (access to courts) of the Constitution. The Tribunal makes administrative decisions within the framework of the law by deciding on appeals concerning the wisdom of the Responsible Authority's conduct on the merits, rather than applying law to disputes. Consequently, the doctrine of precedent does not apply to the Tribunal as it would to a court of law. The Tribunal noted that comments and objections are not the same and play different roles in the licence evaluation process. The Tribunal observed that constitutional duties to give effect to the Bill of Rights, particularly sections 24, 27 and 33 of the Constitution, only arise once the Tribunal has established it has jurisdiction to hear a matter. The Tribunal commented that water use is often ancillary to another process, and there is usually extensive public participation under the National Environmental Management Act, so public participation should not necessarily be duplicated under the NWA.

This case reinforces the strict jurisdictional limits of the Water Tribunal as a statutory body. It establishes that the Tribunal cannot exercise powers beyond those conferred by the National Water Act, even when constitutional arguments are raised. The case clarifies that the public participation requirements under section 41(4) of the NWA are substantive prerequisites to appeal rights under section 148(1)(f), not merely procedural formalities. It demonstrates that where the Department of Water Affairs fails to require public notice of a water use licence application, third parties are effectively precluded from appealing the licence decision. The ruling has significant implications for environmental justice and public participation in water resource management decisions, as it limits access to the Water Tribunal's appellate jurisdiction. The case also distinguishes between the administrative nature of the Water Tribunal's functions (governed by section 33 of the Constitution) and judicial functions (governed by section 34).