Water right not unconditional
For more than a decade Free State dairy farmer Petrus Willem Terblanche battled the Minister of Water & Environmental Affairs in a test case that continued even after his death. But now, two years after his death, he has lost.
A Times Select report notes the case revolved around the accountability of the department in supplying farmers with water during drought and maintaining canal systems.
After his death one of his legal claims was still being heard at the SCA. It came to an end last month when the judges ruled against him.
The final proceedings saw Terblanche’s situation being used as a test case, where he had been trying to sue the Environmental Affairs Minister for damages, alleging the department had failed to maintain the area’s irrigation channels.
This, he claimed, had led to him being unable to water his farm’s crops, forcing him to switch to a different type of feed for his cattle, and milk production plummeted.
The SCA ultimately decided that the National Water Act of 1998 dictated Terblanche was under an obligation to formally request the water he needed, and paying various charges for this service.
The SCA judges said that while they would not rule on whether or not the right to abstract water was a statutory right, ‘whatever its precise nature may have been, such right to use water was not unconditional’. Rather, the judges ruled, it was dependent on Terblanche following the bureaucratic processes to acquire it.
‘The appellant’s submissions that the (department) bore an ongoing statutory duty to maintain the canal and distribute water, and that its failure to do so was an ongoing wrong ... falls to be rejected,’ the court ruled.
Terblanche’s case was rejected, the prescription ruling was upheld, and the farmer’s side was ordered to pay the costs of both counsel.
© Juta and Company (Pty) Ltd 2016
Article disclaimer: Juta expressly reserves the right, in its sole and absolute discretion, to alter or amend any criteria or information set out in this article without notice. Accordingly, any information, including journalistic articles, are not intended to constitute legal, financial, accounting, tax, investment, consulting or other professional advice or services. Before making any decision or taking any action based on the information contained in this article, which decision or action might affect your personal finances or business, you should consult a qualified professional advisor.