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Agriculture awaits final decision on water rights transfers

The Constitutional Court has granted government leave to carry on its attempt to prohibit the transfer and trading of water rights. Agri SA has funded a year-long court challenge on behalf of farmers that has thus far been successful.

by Vateka Halile
13th April 2022
Water rights: Here's what farmers should know

Farmers should be aware of water rights on a farm. Experts say you need to apply to the department of water and sanitation for a water use license and therefore permission to use that water for irrigation. Photo: Supplied/Food For Mzansi

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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.

ALSO READ: Is groundwater a solution to Mzansi’s water shortages?

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Vateka Halile

Vateka Halile grew up in rural areas of Cofimvaba in the Eastern Cape. She was raised in a traditional family setting and found writing to be a source of comfort and escape. Vateka participated in an online citizen journalism course through Food For Mzansi, and her passion for health and medicine-related stories was born. Her dedication to community work and love for social justice and solidarity spaces is evident in her quality time with the community when she isn't working.

Tags: Agri SACourt rulingICYMIwater rights
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