Centre for Environmental Rights – Advancing Environmental Rights in South Africa

While today’s judgement of Exxaro v Minister of Water Affairs and the JSC by the North Gauteng High Court makes important points about the Water Tribunal and the Minister’s failure to comply with her duties under the National Water Act, the court also inexplicably gave assistance to a mining company that has both ample resources and other legal remedies, at the expense of the environment.

The judgement of the North Gauteng High Court confirms our and other civil society organisations’ concerns about the Minister’s decision not to reconstitute the Water Tribunal pending promulgation of amendments to the National Water Act. The Tribunal is an important part of the National Water Act architecture, and the only way for civil society organisations and communities to challenge decisions without the costs and risks associated with court proceedings.

However, the Water Tribunal stopped operating optimally a long time ago, and the quick and cheap remedy that the Water Tribunal was supposed to provide ceased being available long before this latest decision by the Minister. In addition, the Tribunal’s recent rulings have undermined civil society’s access to this remedy. Not all these problems will go away by appointing new Tribunal members.

While the court was quite clear in finding that the Minister was acting ultra vires by effectively disbanding the Water Tribunal until amendments to the National Water Act had been promulgated, it stopped short of actually ordering the Minister to reconstitute the Tribunal. Instead, the court decided to do what not even the National Water Act itself does: suspend the operation of the directives issued against Exxaro – directives issued to compel Exxaro to comply with the National Water Act – pending the final determination of Exxaro’s appeals to the Water Tribunal. This means that Exxaro can now proceed with its water use activities without complying with the DWA’s directives, until their appeals can be decided by a reconstituted Water Tribunal. That process entails, inter alia, publication in the Government Gazette, and a recruitment process by the Judicial Services Commission and the Water Research Commission.

While the Minister clearly flouted her duties in relation to the Water Tribunal, one has to ask why Exxaro has been given an advantage it would never have had if the Water Tribunal were functioning (that is, in the absence of a successful interim interdict granted by the High Court), while the environment now has to bear the brunt of the Minister’s decision. It was not as if Exxaro was without remedy: it could still bringing a review application in the High Court to set aside the directives.

Rumour has it that the DWA will appeal the judgement. It is not at all certain that the Minister will get kinder treatment from the SCA, but perhaps the SCA can at least also take into account the provisions of s.148(2)(a) of the National Water Act (which stipulates that an appeal to the Water Tribunal does not suspend a directive), and the importance of our wetlands and water resources.

More recent media coverage: Myn lê pan droog vir ontginning, Beeld, 11 July 11 2013