Department of Water and Sanitation vindicated by the Water Tribunal South Africa
The Department of Water and Sanitation (DWS) has welcomed a ruling by the Water Tribunal of South Africa to dismiss an application for leave to appeal made by Corona Farm Trust. The farm trust had sought an appeal to continue to unlawfully build a dam at Bergview Farm, situated at Winterton under uThukela District Municipality in the Province of KwaZulu-Natal.
In 2016, a farmer and a trustee of Corona Farm Trust, Mr David Gace, made an application for a water use license to build a new dam on Bergview Farm, but continued with the construction of the dam on 10 January 2019 despite not having been granted a Water Users License to build the dam.
DWS’ Dam Safety Section followed up and made a site inspection on 30 January 2019 and held further meetings with the farmer on 01 February 2019, resulting in the Notice to Issue a Directive in terms of Section 53 (1) of the National Water Act issued against the farmer. The notice advised the farmer of the contravention of Section 22 (1) of the NWA which stipulated that the farmer unlawfully commenced with water uses of storing water in the dam, impeding, or diverting the flow of water in a watercourse, and to alter the bed, banks, course, or characteristics of a watercourse.
Following the Notice of Intention to issue a Directive by DWS, the farmer made presentations to the DWS, but these were rejected. This led to a second issuing of a directive in terms of Section 53 (1) of the NWA on 13 March 2019.
The Directive required that the farmer and Corona Farm Trust cease all unlawful water uses and activities, including the construction of the unlawful dam, and to also compile a Decommission and Rehabilitation Plan for the Department to approve prior to commencing with the demolition and rehabilitation of the dam under construction.
The farmer prepared and submitted the Decommission and Rehabilitation Plan required by the directive but refused to demolish the dam wall.
The farmer subsequently lodged an appeal with the Water Tribunal South Africa against the directive issued in terms of section 148 (1) (j) of the NWA, citing the directive to be irrational, unreasonable, and unconstitutional. The appeal also claimed that the demolition of the dam amounted to deprivation of property.
The Water Tribunal South Africa made the findings that the dam is an illegal structure, and it cannot be retrospectively authorised. It has also made the findings that the conduct of the farmer was in violation of the good environmental governance and the rule of law, making it a criminal offence. The findings also established that the unlawful water use is potentially threatening to ecological needs downstream, and any water captured by the dam impacted on the water balance and availability in the ecosystem, as the water cycle is connected to rain run-off and feeds into surface and ground water.
The Water Tribunal South Africa has given an order that the application for leave to appeal by the Corona Farm Trust is dismissed, and that the Directive issued by the Department of Water and Sanitation on 13 March 2019 is still confirmed and needs to be complied with within 14 days.
DWS would like to advice the public not to construct dams illegally, but they should approach the nearest DWS offices or to contact the Dam Safety Office through damsafety@dws.gov.za for guidance on the requirements for applications for licenses to construct new dams and to alter or enlarge a dam.
The Department’s Enforcement Unit (the blue scorpions) will continue to enforce compliance to dam owners who contravene the law. It is a criminal offence to construct a dam without the required Water Use and Dam Safety licenses.
For more information, contact Sputnik Ratau, Spokesperson for the Department of Water and Sanitation on 082 874 2942
Source: Government of South Africa