The Supreme Court of Appeal in this case, had to decide an important issue - whether a decision of the Water Tribunal can be taken on review.
Makhanya v Goede Wellington Boerdery (Pty) Ltd (230/12) [2012] ZASCA 205 (30 November 2012)
APPEALS FROM THE WATER TRIBUNAL
Section 148(1)(f) of the NATIONAL WATER ACT 36 OF 1998 provides for an appeal to the Water Tribunal. Once the Tribunal has issued a decision on the appeal, s149(1)(a) of the Act provides that a litigant may, on a question of law, appeal to a High Court against that decision. The appeal must be noted in writing within 21 days of the date of the decision of the Tribunal.
What is not clear from the legislation is whether the decision of the Water Tribunal can be taken on review. An appeal differs from a review in many ways.
APPEAL V REVIEW
An appeal seeks to challenge only the correctness of a decision. It is a rehearing of the matter on the merits and is limited to the evidence in the record. In the case of Water Tribunal decisions, appeals are restricted to questions of law. The appeal must be noted in writing within 21 days of the date of the decision of the Tribunal, as per the Act.
A review on the other hand seeks to challenge the lawfulness or regularity of a decision, such as whether the decision was taken in a procedurally fair manner, or whether there was any bias on the part of the decision-maker. A review is not restricted to the evidence in the record. A review must be instituted without unreasonable delay and not later than 180 days from the date of the internal appeal decision, as per PAJA.
Makhanya v Goede Wellington Boerdery
In this case, the Water Tribunal dismissed an appeal against the refusal of the Department of Water & Sanitation (DWS), of an application for a water use licence (WUL) for farming purposes from the Berg River in the Wellington area of the Western Cape.
The dismissal of the appeal was thereafter taken on review, whereupon the North Gauteng High Court reviewed and set aside the Tribunal’s dismissal of the appeal.
The High Court further substituted the Tribunal’s decision by upholding the appeal and granted the WUL.
One of the issues to be decided by the Supreme Court of Appeal (SCA) was:
Whether the Tribunal’s decision constitutes administrative action reviewable under the Promotion of Administration Justice Act (PAJA)
The DWS argued that the decision of the Tribunal did not constitute administrative action reviewable under PAJA.
It further argued that the Tribunal sits as an appellate body, exercising what are in effect judicial functions akin to that of a court; and that the Act does not make an express reference to any right of review, instead it provided for an appeal directed to the high court only on an issue of law.
DOES THE DECISION OF THE WATER TRIBUNAL CONSTITUTE ADMINISTRATIVE ACTION ?
The SCA found that the High Court was correct in finding that a decision of the Water Tribunal constituted administrative action, for the following reasons:
The Tribunal effectively had to rehear the application for the water licence, placing itself in the shoes of the Department or the Director-General.
Members of the Tribunal do not have the same security of tenure as judicial officers. The Act provides that a member is appointed for a specified period and may be terminated by the Minister for Water Affairs. The uncertain tenure of the office of those selected to comprise the Tribunal, is not compatible with judicial independence.
Some members of the Tribunal have no legal training or expertise.
The nature of the power exercised by the Tribunal was no less and no more than a consideration of whether a water use licence should be granted or not.
Makhanya v Goede Wellington Boerdery therefore confirms that a decision of the Water Tribunal constitutes administrative action.
A litigant is therefore not restricted to bringing a High Court appeal under the Water Act, but may also institute a review application under PAJA.