By Carien Kruger
The Department of Water and Sanitation has rejected an application to transfer a black farmer’s water rights to a white farmer. The department wants to keep these specific rights in the hands of a previously disadvantaged person for transformation.
AfriForum’s legal team is appealing to the water tribunal against this ruling, arguing that it contradicts the National Water Act (Act 36 of 1998) and is based on court rulings stating that the department cannot consider only one factor, in this case, transformation, when evaluating such an application. It must also account for other substantial factors.
Marais de Vaal, an environmental consultant for AfriForum, says the black farmer does not require the water rights and wishes to sell them to a white farmer who needs them.
Both farmers will now have to wait for plans that are dependent on the transfer. De Vaal says the tribunal could take up to two years to hear the case. Meanwhile, the black farmer is not utilising the water.
The irony of the department’s paternalistic attitude toward transformation is that a black farmer who wants to relinquish his water rights based on commercial considerations is being prevented from exercising his free will.
De Vaal says the white farmer wants to expand his farming and utilise the water rights for irrigated crop farming. “The black farmer is not currently using the water rights for his farming, but because they have monetary value, it makes commercial sense for him to sell them.”
Along with its media statement regarding its appeal, AfriForum also released the department’s written notification about its decision. The details that could identify the involved farmers have been redacted to protect them.
According to this, the black farmer’s water rights are part of specific water rights that became available through savings and were designated for historically disadvantaged people.
De Vaal states in the notification that the legal technical term “donor” refers to the person who owns the rights, while “recipient” refers to the person who wishes to acquire them. He mentions that the “recipient” will compensate the “donor” at a market-related price.
Other factors must be considered
African Farming quoted attorney and water rights expert Adriaan Groenewald in an article early last year. In it, he said Section 27 of the National Water Act contains 11 factors that the minister must consider when evaluating a license application.
“The appeal court ruled in the well-known Goede Wellington case that all these factors must be considered together and that no one, for example, BEE, should be elevated as more important than the rest of the factors or considerations,” Groenewald said.
AfriForum states that by rejecting the black farmer’s application, the department overlooked other significant factors that it is legally required to consider when assessing the water license application. These include:
- Whether the water will be used efficiently and to benefit the public interest.
- Whether the water use will promote socio-economic development.
- Whether the water use is per the applicable catchment area’s management plan.
- How will water use affect the quality of the relevant water resource?
- What investments has the water user already made to use the water?
None of these factors is more important than others; therefore, race is not a standalone factor,” says AfriForum. “By elevating race to the determining factor, white farmers are consequently automatically discriminated against.
Francois Rossouw, executive director of the family farmers’ network Saai, states in the statement that the narrow application of the department’s racial policy does not contribute to meaningful rectification of historical racial discrimination in agriculture. It undermines the employment of both full-time and seasonal black workers and the development of the local economy and enterprises within the value chain.
Previous decision reversed
African Farming reported last year on a case < https://www.africanfarming.com/2024/07/16/court-to-decide-on-water-rights-racial-issue/> where the department rejected the temporary transfer of a water use license based on race, prompting AfriForum to take the case to court. De Vaal states that the department reversed its decision to reject the application before the case proceeded to court.
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