By Lehlohonolo Lehana.
The Constitutional Court has conclusively ruled that water rights holders are entitled to transfer such rights in accordance with the provisions of the National Water Act, dismissing the appeal by the Department of Water and Sanitation (DWS).
The unanimous verdict, of the Constitutional Court delivered by Judge Mbuyiseli Madlanga, follows the November 2021 victory by the applicants in the Lötter, Wiid and SAAFWUA matters in the Supreme Court of Appeal.
The matter emanated from a circular issued in January 2018 in which the DWS determined that water use entitlements could not be transferred. The circular contradicted the provisions of Section 25 of the National Water Act as well as the DWS’s own interpretation of the law and its established practices in water use entitlement transfers, dating from 1998 when the Act came into effect.
The Democratic Alliance (DA) has lauded a recent judgment by the Constitutional Court as a victory for the country’s farmers.
The party says that the alienation of water use entitlement and lawful transfer of such ownership to a third party has been contentious for some time.
In 2013, the Department of Water and Sanitation issued a circular barring farmers from transferring and trading in water use rights.
“A fair and transparent water rights system is the cornerstone of any successful agriculture and commercialisation of the sector, especially for emerging farmers,” says DA’s Noko Masipa.
“The Concourt ruling ensures that farm sale transactions will allow the purchaser to become the successor in title of lawful water uses associated with the farm operation, post-closure of the transaction.
“The DWS’s interference with water rights use was particularly hard on our irrigation-reliant agricultural sector.
“Most farmers had to jump through hoops to obtain the bare minimum supply of water for their operations.
“In the current high inflationary environment where food prices have shot through the roof, the government should be making it easy, for farmers to grow their produce without interference.”
The favourable ruling by the Constitutional Court will now enable WUAs and Irrigation Boards to manage water effectively and sustainably at the local level.