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Witzenberg Properties (Pty) Ltd v Bokveldskloof Boerdery (Pty) Ltd and another

28 June 2018

High Court of the Republic of South Africa, Western Cape Division, Cape Town 

Case No. 20765/2017

Date: 28 June 2018

Judge: Cloete J

This matter concerned an application for an interim interdict by Witzenberg Properties (Pty) Ltd (Witzenberg) restraining Bokveldskloof Boerdery (Pty) Ltd (Bokveldskloof) from taking water from three boreholes situated on Bokveldkloof’s property for any purpose other than uses permissible under Schedule 1 to the National Water Act, 1998 (NWA) pending the outcome of an internal appeal by Bokveldkloof to the Water Tribunal against a decision by the Department of Water and Sanitation to make a final determination of the extent and lawfulness of Bokveldskloof’s existing water uses in terms of s 35(4) of the NWA, limiting its use of groundwater to 161 400 cubic metres per annum.

In terms of section 148(2)(b) of the NWA, certain decisions, including final determination contemplated in section 35(4) of the NWA, which are subject to an internal appeal to the Water Tribunal are suspended pending the outcome of that appeal.

The Court refused the interim interdict application. It held that it was not competent to pronounce on any issues that were the subject of an internal appeal and may in future be subject to a judicial review. It found that the abstraction of water from the relevant boreholes is inextricably linked to whether or not Bokveldskoof is entitled to abstract groundwater exceeding 161 400 cubic metres per annum – and that that is an issue that is currently before the Water Tribunal.

The Court furthermore held that Witzenberg did not have standing to bring the application in question, principally because it could not show that it has sustained or foresees actual harm.

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Section 24 of the Constitution of the Republic of South Africa, 1996

Everyone has the right to an environment that is not harmful to their health or well-being; and to have the environment protected, for the benefit of present and future generations, through reasonable legislative and other measures that prevent pollution and ecological degradation; promote conservation; and secure ecologically sustainable development and use of natural resources while promoting justifiable economic and social development.

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