n Tydskrif vir die Suid-Afrikaanse Reg - Non-performance of constitutional obligations and the demise of the water tribunal - access to justice denied? : regspraak

Volume 2014, Issue 1
  • ISSN : 0257-7747
  • E-ISSN: 1996-2207



This note focuses on two decisions of the North Gauteng high court ( (56628/2010) (2011) (ZAGPPHC 141) and (63939/2012) (2012)) and a decision of the supreme court of appeal ( (230/2012) [2012] ZASCA 205 (30-11-2012)) (unreported) on the role and manner of functioning of the water tribunal established by the National Water Act 36 of 1998. The water tribunal's main purpose is to adjudicate upon appeals lodged against decisions made and directives issued in accordance with the provisions of the National Water Act. In the high court case, a decision of the water tribunal was set aside on the basis of non-compliance with the rules of natural justice, which decision was confirmed on appeal. In the supreme court of appeal case as well as the North Gauteng high court case, it was determined that there was no legal basis for the minister of water affairs to direct that an appeal against a decision or directive must be referred to a mediation panel (as provided for in s 150), as the nature of appeals required that the matter could only be heard and finally adjudicated by the water tribunal. In the case the failure of the minister to reconstitute the water tribunal was found to be unconstitutional and a contravention of the National Water Act. In conclusion a number of implications of the failure of the water tribunal to comply with the principles of administrative law as well as the refusal of the minister to reconstitute the water tribunal are highlighted.

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