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De Lange NO v Minister of Water and Environmental Affairs

17 April 2019

Supreme Court of Appeal

Citation: Stephanus de Lange NO v The Minister of Water Environmental Affairs (81/2018) [2019] ZASCA 59 (17 April 2019)

Date: 17 April 2019

Judge: Leach JA and Mokgohloa AJA (Navsa AP, Mocumie JA and Dlodlo AJA concurring)

This matter concerned the prescription of a claim for damages against the Minister of Water and Environmental Affairs for loss suffered as a result of an alleged unlawful failure by the latter to maintain infrastructure through which the Mr de Lange was supplied with water. The Supreme Court of Appeal upheld a ruling by the High Court that Mr de Lange’s claim has prescribed.

Of importance in this judgment is the Court’s conceptualisation of a right to use water in terms of the National Water Act, 1998 (NWA) The appellant argued that a right to use water was a real or statutory right, which did not prescribe (as a personal right would have). The Supreme Court of Appeal pointed out that the right in question (an existing lawful water use) was a conditional right. While the court was unwilling to spell out the exact nature of the right, it distinguished the right from a “mere contractual right” which would prescribe in the event that it there is a failure to exercise such as a right. The Court found that the failure of the appellant to make an effort to meet the preconditions for an entitlement to his right to water (and in particular, an application for a right to use water and the payment of a levy) meant that the claim prescribed, as envisaged in the Prescription Act, 1969.

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Section 24of 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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