Mzansi’s agriculture sector is waiting with bated breath for South Africa’s highest court to rule in favour of farmers when it comes to the transferability and trading of water rights.
This after the Constitutional Court granted the department of water and sanitation’s application for leave to appeal against a decision by the Supreme Court of Appeal (SCA) on the transferability and trading of water rights.
The Supreme Court of Appeal (SCA) ruled on 8 November 2021 that water rights holders are entitled to transfer such rights in accordance with the provisions of the National Water Act (NWA), and that trading in such rights is neither prohibited nor unlawful.
The matter before the courts sprung from a circular that the department had issued in January 2018 determining that water rights could no longer be transferred. Farmer’s body Agri SA funded a legal challenge of this determination.
Agri SA has maintained that the right to legally transfer water use entitlements in accordance with the provisions of section 25 of the NWA is vital, particularly for the irrigation agricultural sector.
Investor confidence shaken
The department has, however, chosen to appeal this decision, and the Chief Justice has directed that the appeal will be heard by the Constitutional Court on 25 August 2022.
“The outcome of this judgment will have significant consequences for the agricultural sector, both in terms of investor confidence and access to capital,” Agri SA wrote in a media release.
According to Agri SA, stewardship of water involves not only the efficient use of scarce water resources, but also the legal protection of water use entitlements.
“[These are] not only essential for access to water, but are also an asset for South Africa’s farmers,” Agri SA said.
The organisation considers the department’s Constitutional Court approach on the matter a threat to the sector’s sustainability, as “government is once again attempting to affect an arbitrary deprivation of property”.
“Coupled with the ongoing debate around the Expropriation Bill, this action can only further erode investor confidence in the agricultural sector and in the broader economy,” the organisation added.
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