Cape Town - Agri SA will be in the Constitutional Court on Thursday as the court hears an application for leave to appeal a significant water rights judgment delivered the Supreme Court of Appeal (SCA).
The application has been brought by the Department of Water and Sanitation after the government lost its bid in relation to the rights of farmers’ water use entitlements under the National Water Act.
The case came about as the result of a circular issued by the department in January 2018 in which it sought to remove the right of water use entitlement holders to transfer the entitlements.
The case was brought to the SCA after the North Gauteng High Court in Pretoria dismissed applications for a declaratory order on the legality of the circular.
On November 8, 2021, the SCA ruled that water rights holders are entitled to transfer such rights in accordance with the provisions of the National Water Act, and that trading in such rights is neither prohibited nor unlawful.
The department has chosen to appeal this decision, which will be heard by the Constitutional Court on Thursday.
Agri SA said the ability to transfer water use entitlements is vital, particularly for irrigation farmers.
“This was initially recognised by the department, which supported the current framework from the outset.
“However, the department subsequently attempted to unlawfully strip water rights holders of this entitlement and will tomorrow seek leave to appeal the SCA judgment,” Agri SA said.
They added that the Constitutional Court hearing is of great significance to the agricultural sector in South Africa as water use entitlements constitute a vital asset for the nation’s farmers.
Agri SA has therefore funded two of the farmers’ legal costs from its Voluntary Water Fund.
“The SCA judgment was an important victory for the agricultural sector, and Agri SA is optimistic that it will be upheld.
“This is the only way to protect and promote South Africa’s ability to continue to sustainably produce food locally.
“If the department’s application for leave to appeal is denied, farmers will be able to continue their operations with a degree of legal certainty.
“But should leave to appeal be granted, Agri SA will continue to support the nation’s farmers in the Constitutional Court to ensure that the department is not allowed to extinguish the crucial water rights that farmers rely on,” said Agri SA legal and policy executive Janse Rabie.
Cape Times