AGRI SA says that the agricultural sector has had to resort to litigation as the Constitutional Court granted the Department of Water and Sanitation (DWS) an application for leave to appeal against a decision by the Supreme Court of Appeal (SCA) on the transferability and trading of water rights.
Agri SA law and policy executive Janse Rabie said that as an organisation they were confident rule of law would prevail, and that the nation’s farmers would be able to continue to do the crucial work of ensuring food security for the country at this especially difficult time.
According to Rabie the outcome of the judgment would have significant consequences for the agricultural sector, both in terms of investor confidence and access to capital.
“The case came about as the result of a circular issued by the DWS in January 2018 in which the department sought to remove the right of water use entitlement holders to transfer the entitlements.
“The case was brought to the SCA after the Pretoria High Court dismissed applications for a declaratory order on the legality of the circular,” said Rabie.
Last year the SCA ruled that water rights holders were entitled to transfer such rights in accordance with the provisions of the National Water Act, and that trading in such rights was neither prohibited nor unlawful.
“The department has chosen to appeal this decision, and the chief justice has directed that the appeal will be heard by the Constitutional Court on 25 August, 2022,” added Rabie.
Rabie said that the stewardship of water involved not only the efficient use of scarce water resources but also the legal protection of water use entitlements which were not only essential for access to water but also a valuable asset for South Africa’s farmers.
“The ability to lawfully transfer water use entitlements in accordance with the provisions of Section 25 of the National Water Act (NWA) is vital, particularly for the irrigation agricultural sector. The transferability of water use entitlements in terms of the NWA was envisaged from the outset, and this was actively endorsed and supported by the DWS.,” said Rabie.
He added that the unlawful circular by the DWS constituted a threat to the sector’s sustainability as government was once again attempting to effect an arbitrary deprivation of property, this along with the ongoing debate around the Expropriation Bill. This could only further erode investor confidence in the agricultural sector and the broader economy.
“To uphold these vital rights of farmers, Agri SA funded the legal costs in two of the three cases leading to the SCA judgment from its Voluntary Water Fund,” he said.
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