The Applicants are trustees of a trust and a farming company owning farms in Mpumalanga. The Third Respondent (Kangra Coal) operates an underground coal mine in the area and obtained a water use licence (WUL) on 25 October 2021. The Applicants were informed on 3 December 2021 and requested reasons for the decision on 14 December 2021, stating they would appeal within 30 days of receiving reasons. After receiving no response despite follow-ups on 19 January 2022 and 13 April 2022, the Applicants lodged an appeal on 12 July 2022 without reasons, reserving the right to supplement. The Department provided reasons (record of decision) on 17 November 2022, and the Applicants supplemented their appeal on 31 January 2023. Kangra wrote on 21 July 2022 stating the appeal was out of time and of no force and effect. In June 2023, the Applicants noticed mining activity and sought an urgent interdict on 14 July 2023, arguing the mining was unlawful as their valid appeal suspended the WUL. The Applicants rely on expert evidence that mining will negatively affect 24 natural springs on their properties, impacting their farming operations.
1. The forms and service provided for in the Rules of Court are dispensed with and the matter is heard as an urgent application. 2. The Third Respondent is interdicted from undertaking any water use in terms of section 12 of the National Water Act at the Balgarthen A Adit. 3. The interdict operates until either: (a) The Minister uplifts the suspension of Kangra's Water Use Licence; or (b) The Applicants' appeal is dismissed by the Water Tribunal. 4. Costs are to be paid by the Third Respondent.
Section 148(3) of the National Water Act requires an appeal to be commenced within 30 days after the most recent of three events: publication, notice of decision, or provision of reasons. The emphasis is on "within" not "after" - the provision sets the latest time by which an appeal must be lodged, not the earliest time. An appeal lodged before receiving reasons for the decision but within 30 days of when reasons are eventually provided constitutes substantial compliance with section 148(3). A valid appeal lodged in terms of section 148(1)(f) automatically suspends a water use licence pursuant to section 148(2)(b) of the NWA. Water use conducted while a licence is suspended by a valid appeal is unlawful. The NWA must be interpreted in light of the public trust doctrine and the state's fiduciary responsibility to regulate water use in the public interest. Section 32 of NEMA confers standing on persons to seek relief for breaches of the NWA as a "specific environmental management Act".
The court noted that the "record of decision" provided by the Water Tribunal Registrar constitutes "reasons" as referred to in section 148(3)(c), not the internal "record of recommendation" prepared before the decision. The court observed that reasons for administrative decisions serve two purposes: allowing an appellant to decide whether to challenge the decision, and determining grounds for appeal. The court cautioned against strict mechanical approaches to statutory compliance, favoring purposive interpretation aligned with the provision's purpose. The court commented that environmental damage to water resources, while potentially mitigated, cannot be undone, and such disturbances should only be tolerated where proper permissions exist and no valid suspensive appeal is pending. The court noted Cameron J's warning in Giant Concerts to be hesitant to dispose of cases on standing alone where broader accountability concerns require determination of merits. The judgment emphasized the policy-laden nature of water licence decisions requiring administrators to weigh public interests (distribution and conservation) above private commercial interests.
This case establishes important principles regarding the interpretation of section 148(3) of the National Water Act concerning appeal timeframes. It confirms that appeals may be lodged before receiving reasons for a decision, provided they fall within 30 days of the most recent triggering event (publication, notice, or provision of reasons). The judgment adopts a purposive interpretation focused on substantial compliance rather than strict mechanical compliance with statutory timeframes. It prevents administrative inaction from defeating appeal rights. The case also clarifies the automatic suspensive effect of valid appeals under section 148(2)(b) of the NWA and confirms that section 32 of NEMA provides standing to enforce provisions of the NWA as a "specific environmental management Act". The judgment reinforces environmental protection principles by preventing mining activity where a water use licence is suspended pending appeal, recognizing that environmental harm may be irreversible.