State appeals to constitutional court in water rights case

The Department of Water and Sanitation (DWS) has filed an appeal to the Constitutional Court against a recent decision by the Supreme Court of Appeal (SCA) which held that water rights’ holders are entitled to transfer such rights in accordance with the provisions of the National Water Act and that the trading in such rights are not prohibited or unlawful.

The SCA judgement followed from three appeals in the Lötter, Wiid and South African Association of Water Users Associations (SAAFWUA) concerning a declaratory order on the correctness of a circular by the Department of Water and Sanitation (DWS) dating from January 2018 in which the DWS determined that water use entitlements could not be transferred.

“The decision of the DWS to appeal against the SCA ruling to the Constitutional Court is not entirely unsurprising, given the fact that the SCA itself was divided on the matter”, said Janse Rabie, Head Agri SA’s Natural Resources Centre of Excellence. “Agri SA maintains that the ability to legally be able to transfer water use entitlements in accordance with the provisions of section 25 of the NWA is vital, particularly for the irrigation agricultural sector”, Rabie continued.

The effect of the DWS’s appeal means that applications for transfers of water use entitlements will not be entertained pending the outcome of the Constitutional Court process.



Janse Rabie Agri SA Head of Natural Resources C: 076 451 9601