West Coast Environmental Protection Association v Minister: Department of Water and Sanitation and Others

The third respondent, Kropz Elandsfontein (Pty) Ltd (formerly Elandsfontein Exploration and Mining), was granted a prospecting right in 2013 and a mining right in 2014 to mine phosphate on Elandsfontein Farm. Kropz applied for an integrated water use licence (IWULA) on 26 February 2016, which was granted on 7 April 2017 by the Department of Water and Sanitation. The appellant, West Coast Environmental Protection Association (WCEPA), submitted objections to the IWULA on 10 February 2017. WCEPA requested a copy of the water use licence and reasons for the decision on 21 April 2017, and only received the reasons on 24 May 2017. WCEPA lodged an appeal with the Water Tribunal on 26 June 2017, serving the appeal papers on Kropz's attorneys the same day. Kropz contended the appeal was filed late, as the 30-day appeal period under section 148(3) of the National Water Act expired before 26 June 2017. WCEPA applied for condonation of the alleged late filing in August 2017. Kropz had been granted temporary permission to dewater the mining pit and recharge the aquifer on 22 December 2016, and continued these water use activities despite the appeal.

• Whether the appeal was lodged within the 30-day period prescribed in section 148(3) of the National Water Act and Rule 4(1) of the Water Tribunal Rules
• Whether the reckoning of the 30-day period should exclude weekends and public holidays in terms of section 4 of the Interpretation Act
• Whether condonation should be granted for the late filing of the appeal
• Whether the appeal raises grounds with prospects of success including substantive and procedural challenges to the granting of the water use licence
• Whether section 148(2)(b) of the National Water Act operates to suspend the water use licence pending determination of the appeal

The Tribunal granted condonation of the two-day delay in lodging the appeal. The appeal lodged on 26 June 2017 was declared valid and pending before the Water Tribunal.

The binding legal principles established are: (1) In calculating the 30-day appeal period under section 148(3) of the National Water Act, section 4 of the Interpretation Act applies, excluding the first day and including the last day, and excluding weekends and public holidays when they fall on the last day; (2) For condonation applications, the Melane factors apply (degree of delay, reasons for delay, prospects of success, prejudice to respondent, and importance of case), but these are interrelated and not necessarily cumulative; (3) A delay of two days falling over a weekend when the Tribunal office is closed is insignificant and can be condoned where there are prospects of success; (4) Appeals with prima facie grounds raising substantive challenges regarding scientific uncertainty, non-compliance with statutory obligations, and procedural irregularities such as inadequate public participation carry prospects of success warranting condonation; (5) Section 148(2)(b) of the National Water Act automatically suspends a water use licence upon lodging of an appeal unless the Minister directs otherwise; parties cannot unilaterally determine the validity of appeals and act contrary to the suspension provision; (6) Prejudice created by an applicant's own decision to proceed with activities before securing all necessary authorizations is self-imposed and not a decisive factor against granting condonation.

The Tribunal made several non-binding observations: (1) The 'temporary permission' granted by the Deputy Director-General: Regulation on 22 December 2016 appears questionable as only a water use licence or general authorisation under sections 22, 39, and 40 allows lawful water use, and there is no provision for 'temporary consent' in the National Water Act; (2) Kropz's expert claims of 'no impact' or 'no environmental damage' from water use activities appeared unrealistic on their face and required further scrutiny at a full appeal hearing; (3) The interpretation that public participation should only occur when the responsible authority issues a directive under section 41(4) was absurd and arbitrary, as clarified by the High Court in Escarpment Environment Protection Group v Department of Water Affairs; (4) Kropz's refusal to apply for environmental authorisation was a matter subject to separate proceedings; (5) Environmental protection could be ensured during the appeal through sections 19 and 20 of the National Water Act and section 28 of NEMA, which create obligations on Kropz to prevent pollution and environmental degradation; (6) Kropz's petition under section 148(2)(b) to uplift the suspension, filed on 27 September 2017, remained pending before the responsible authority; (7) The Water Use Licence Application and Appeal Regulations (2017) requiring appeals to the Minister rather than the Tribunal did not apply to this case as the IWULA was applied for before the regulations came into force.

This case clarifies important principles regarding appeals to the Water Tribunal under the National Water Act. It confirms that the Interpretation Act applies to the reckoning of time periods under the National Water Act, excluding weekends and public holidays. The decision reinforces that public participation is an essential element of fair environmental decision-making in water use licensing, even when not specifically directed by the responsible authority. The Tribunal emphasized that section 148(2)(b) operates to automatically suspend water use licences upon lodging of an appeal unless the Minister directs otherwise, and that parties cannot unilaterally determine the validity of appeals. The case also underscores that the precautionary principle and proper consideration of scientific uncertainty are critical factors in water use licensing decisions. It demonstrates the interplay between water law, mining law, and environmental law, particularly regarding the integration of authorizations under different legislative frameworks. The decision affirms that applicants who proceed with activities before securing all necessary authorizations assume the risk of regulatory challenges and cannot rely on self-imposed prejudice to defeat procedural rights of objectors.