CONSEQUENCES FOR JUMPING THE GUN
THE CHILLING EFFECT OF AN APPEAL AGAINST A WATER USE LICENCE
What happens when a developer decides to commence development after an appeal has been lodged against a water use licence ?
In terms of the National Water Act, whenever a person lodges an appeal against a decision to issue a water use licence (WUL), the decision of the department and thus the WUL is suspended.
This means that the licence is of no force and effect, as if it had not been issued at all.
This situation (the suspension) persists for as long as the appeal is pending, and comes to an end once the appeal has been disposed of or decided by the Appeal Authority or the Water Tribunal.
However, it is possible for an applicant (developer) to commence development despite a pending appeal, only if he or she has been directed to commence development by the Minister for Water and Sanitation. This is usually in response to an application by the developer to the Minister to uplift the suspension.
So, when a developer decides to commence development while an appeal is still pending, and there being no directive from the Minister to uplift the suspension on the WUL, the development or activity is prima facie unlawful.
And when a developer engages in an unlawful activity, the affected parties (usually those who have opposed the issuing of the WUL) have grounds to bring a halt to the unlawful commencement.
Corneels Greyling Trust & Kangra
This is exactly what happened in Trustees for the time being of the Corneels Greyling Trust and Another v Minister of Water and Sanitation and Others (2023 / 069111) [2023] ZAGPJHC 898 (11 August 2023), which was decided at the South Gauteng High Court, Johannesburg.
Around 2020, Kangra applied for a Water Use Licence (WUL), which the Applicants opposed. Notwithstanding, the WUL was granted on 25 October 2021.
The Applicants informed the Department of Water and Sanitation on 14 December 2021 that they intended to appeal the granting of the licence and requested reasons for issuing the WUL. None were forthcoming from the department.
The Applicants then appealed against the granting of the WUL on the 12 July 2022.
Kangra’s approach was that the Applicants had filed their appeal out of time and that they were allowed to mine. Kangra then commenced mining.
The Applicants thereafter launched urgent proceedings in the South Gauteng High Court where they sought a final interdict to prevent Kangra from conducting mining activities pending the finalisation of the appeal by the Water Tribunal.
The court held that the Applicants had complied with the provisions of the Water Act insofar as requirements (and deadlines) for the lodging of appeals were concerned. The court did so after interpreting s148(3) of the Water Act.
The court further concluded that the WUL was therefore suspended.
Kangra did not show any evidence that it had sought and received a directive from the Minister to lift the suspension on the WUL.
The court eventually concluded that Kangra was conducting mining activities unlawfully.
The interdict against Kangra was accordingly granted by the court. Kangra was directed to pay the legal costs.
This is another example of why it is important to understand the legal consequences of an appeal lodged against a WUL.
The development or activity can only commence once the appeal process has been concluded, or once the suspension on the WUL has been lifted by the Minister.