Con Court to consider government appeal of vital Supreme Court water rights judgment

Agri SA will be in the Constitutional Court tomorrow, 25 August 2022, as the Court hears an application for leave to appeal on a vital water rights judgment delivered by the Supreme Court of Appeals (SCA). The application has been brought by the Department of Water and Sanitation after government lost its bid to water down the rights of farmers’ water use entitlements under the National Water Act.

The hearing comes after the Supreme Court of Appeal ruled against the Department on 8 November 2021. The Supreme Court held 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 not prohibited or unlawful. 

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.

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 Constitutional Court’s decision on the appeal will be of equal significance to the sector. 

“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 Janse Rabie. 


Janse Rabie
Agri SA, Legal and Policy Executive

076 451 9601