Witzenberg Properties (Pty) Ltd v Bokveldskloof Boerdery (Pty) Ltd

Witzenberg Properties and Bokveldskloof Boerdery are neighbouring commercial farming enterprises in the Prince Alfred Hamlet winter rainfall area. Witzenberg sought an interdict preventing Bokveldskloof from taking water from three boreholes on its property in close proximity to Witzenberg's dam, except for Schedule 1 uses under the National Water Act 36 of 1998. On 24 April 2018, the Minister's delegate issued a determination under s 35(4) of the NWA limiting Bokveldskloof's groundwater use to 161,400 cubic metres per annum. Bokveldskloof appealed this determination under s 148, which suspended its operation. Over 19 weeks (December 2017 to April 2018), Bokveldskloof abstracted 458,430 cubic metres from the three boreholes (82.8% of its total abstraction). Witzenberg alleged this exceeded lawful entitlement and was siphoning water from its dam. Bokveldskloof maintained it was entitled to irrigate 201 hectares using surface and groundwater in combination, and was only using 112 hectares (55.5% of entitlement). The core dispute involved interpretation of 'existing lawful water use' under the NWA and whether this was determined by volume or irrigable hectares.

• Whether Witzenberg had locus standi to bring the application for interdictory relief
• Whether the requirements for a final interdict were established: (a) a clear right; (b) injury actually committed or reasonably apprehended; and (c) absence of similar protection by other remedy
• Whether it was appropriate for the High Court to determine the merits while an internal appeal to the Water Tribunal was pending
• The proper interpretation of 'existing lawful water use' under the National Water Act
• Whether provisions of the NWA were enacted in the interests of a particular class of persons (conferring standing without proof of harm) or in the public interest generally (requiring proof of actual harm)
• Whether Witzenberg established actual harm or reasonable apprehension of harm from Bokveldskloof's water abstraction

The application was dismissed with costs, including any reserved costs orders and costs of two counsel where employed.

A private party seeking interdictory relief for alleged contraventions of the National Water Act must establish locus standi by proving actual harm or reasonable apprehension thereof, as the NWA was enacted in the public interest generally rather than for a particular class of persons. Section 155 of the NWA limits applications for interdicts to the Minister or water management institutions, and no comparable provision exists for private enforcement as in environmental legislation. Where an administrative determination under s 35(4) of the NWA is subject to an internal appeal under s 148 (which suspends the determination's operation), it is inappropriate for the High Court to determine the substantive merits of issues that form the subject matter of that appeal, as doing so would encroach on the tribunal's jurisdiction and potentially pre-empt the appeal decision. To establish injury actually committed or reasonably apprehended for purposes of interdictory relief, an applicant must prove harm on a balance of probabilities through credible scientific evidence; speculative expert reports containing material contradictions and establishing mere theoretical possibility are insufficient.

The court observed that the concept of 'existing lawful water use' introduced by the NWA represents a fundamental reform moving from riparian preferential rights to an administered authorization system in the public interest. The court noted that the nub of the dispute concerned whether existing lawful water use is determined by specific volumes per water source or by the area of land lawfully irrigated using multiple water sources in combination - an interpretative issue requiring determination by the Water Tribunal. The court commented that even if it were an exceptional case where the public interest cried out for determination despite lack of standing (per Giant Concerts CC v Rinaldo Investments), this was not such a case, as the challenge was already subject to internal appeal. The court noted Myburgh's caution that eliminating a borehole based solely on proximity to surface water without examining specific on-site conditions could create a precedent negatively impacting numerous groundwater users in the area. The judgment also referenced that no criminal charges had been laid by the Department against Bokveldskloof, making it inappropriate to assume a statutory contravention and criminal offense for purposes of applying the doctrine of legality.

This case is significant for clarifying the locus standi requirements for private parties seeking to enforce water law provisions under the National Water Act. It establishes that the NWA's water use provisions are enacted in the public interest generally, not for a particular class of persons, requiring private litigants to prove actual harm rather than presuming it from statutory breach. The judgment reinforces the principle that courts should not prematurely intervene in disputes subject to internal administrative appeal processes, respecting the separation of powers and specialized tribunal jurisdiction. It also demonstrates the evidentiary burden on applicants for final interdicts - speculative desktop studies and theoretical possibilities are insufficient; scientific evidence on a balance of probabilities is required. The case illustrates the fundamental shift in South African water law from riparian private rights to an administered public law system, with enforcement primarily vested in public authorities rather than private parties. It has implications for water disputes in drought-affected areas where multiple users draw from connected surface and groundwater sources.