For civil society groups hoping to turn to the water tribunal for relief over miners’ water licence applications, the outcome of last month’s high court action is just a Pyrrhic victory reports BD Live.

Water and Environmental Affairs Minster Edna Molewa and her Department of Water Affairs have yet to appoint a new tribunal a year after the previous one was suspended.

Gauteng Judge Neil Tuchten ruled in November that civil society groups that object to water licences granted by the department will not have to go to the expense of taking the department and the licence holders to court.

Instead they can appeal to the Water Tribunal, the statutory body that has jurisdiction over water disputes in South Africa. This is a far cheaper, simpler option.

For months the tribunal’s status was caught up in a legal tangle as Ms Molewa tried to change the legislation governing it. This included her objection that its chairman is appointed by the Judicial Service Commission instead of being nominated by a minister and then appointed by the president.

Judge Tuchten said it was “constitutionally offensive” to interpret the National Water Act as stipulating that objections to water licence applications filed late, but ahead of a final decision, should be ignored.

His ruling exonerated the Escarpment Environment Protection Group and the Langkloof Environmental Committee’s lateness in turning in written objections to three miners’ water licence applications, saying they still arrived at the tribunal “in good time to be dealt with during the decision-making process”.

The miners in question were Xstrata Alloys, Exxaro Coal and junior miner WER Mining.

The situation had been caused by the Department of Water Affairs, the recipient of water licence applications, said Judge Tuchten.

It had failed to direct the three miners to publish notices regarding their applications in the media. This is not a requirement in law, but it is preferable.

Because the department did not demand the publication of notices, the miners did not publish them. This meant that the two civil society organisations only came to know of the applications through their own vigilance, Judge Tuchten said.

They collectively represented farmers, ecotourism operators, land claimants and occupiers and farm workers in the catchment areas — not people who have an expert understanding of intricate legal procedure.

Despite the organisations’ objections, the miners still got their water licences. The civil society organisations then appealed to the Water Tribunal (before its suspension), but the tribunal refused to hear them, ruling that they did not have the right standing to do so. Judge Tuchten ruled that this argument did not hold water either.

The department’s spokesman Mava Scott says Ms Molewa and the department are still considering nominations, made by the Judicial Services Commission, for the tribunal’s chairperson, who must be a lawyer.

Mr Scott says also under consideration are nominations to the Water Research Commission, for additional members, who have to be professionals such as engineers, water resource experts or technicians.

“The previous Water Tribunal’s term of office came to an end in August last year and could not be extended as they had already served one full term and a further year extension,” Mr Scott says.

The fact that the tribunal is still not up and running is disappointing to environmental lobby groups.

Escarpment Environment Protection Group chairman Koos Pretorius says mines often do not consult with affected people and organisations when applying for water licences. On account of this the group has resolved to appeal against “each one as we become aware of it”.

Without Judge Tuchten’s ruling this would have meant going to court on each one — an expensive undertaking, especially for a group chiefly comprising farmers and ecotourism operators

Mr Pretorius, says his organisation is waiting for the festive season to close before “stepping on their case” in the new year if there was no appointment, especially as the nominations had been “sitting on the minister’s desk” for two months.

Following Judge Tuchten’s ruling against Xtrata Alloys, Exxaro Coal, WER Mining and the tribunal, Xstrata has indicated it will apply for leave to appeal.

Mines require water licences, and these applications were for access to water in Mpumalanga, a prime source of much of South Africa’s water. The area also has much fertile farmland and is one of the world’s richest coalfields.

While Mpumalanga is the venue for much dispute over water, it is not the only one — there are also disputes in the Waterberg coalfields and elsewhere in the country.

South Africa is a water-scarce country, with half the globe’s average annual rainfall. Tussles over access to the resource, vital for life and for many industrial processes, including mining and the coal-fired power generation on which South Africa still depends for more than 90% of its power, are becoming heated as water becomes scarcer.

Source: BDLive