Non-performance of constitutional obligations and the demise of the water tribunal - access to justice denied?

Abstract

This note focuses on two decisions of the North Gauteng high court (Goede Wellington Boerdery (Pty) Ltd v Makhanya NO (56628/2010) (2011) (ZAGPPHC 141) and Exxaro Coal (Mpumalanga) (Pty) Ltd v Minister of Water Affairs (63939/2012) (2012)) and a decision of the supreme court of appeal (Makhanya NO and Minister of Water and Environmental Affairs v Goede Wellington Boerdery (Pty) Ltd (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 Goede Wellington 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 Goede Wellington supreme court of appeal case as well as the Exxaro 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 Exxaro 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.