Government bungling and “material deficiencies” in decision-making processes have dealt a severe blow to the ability of the department of water affairs to enforce the law. Despite acting in what observers have called “good faith” in its attempts to stop a Western Cape farmer diverting water away from his neighbours, water affairs officials have had their directives slapped down by the high court, sitting in the Western Cape.
At stake is the 1998 National Water Act, which sought to enforce the equal sharing of the country’s water. This also became the first of its kind to guarantee an “ecological reserve” in rivers to ensure that enough water flowed to keep ecosystems functioning. But the water department has struggled to implement it locally. Instead, farmers and other water users are applying a mix of the new Act and the now defunct water legislation of 1956.
A precedent ensuring the new Act was the only applicable water law should have been set this year in the Western Cape.
A commercial farmer outside Ladismith in the Western Cape contested a directive issued against his apparently illegal water use by the water department.
This followed a 2012 visit by the head of the Blue Scorpions – water affairs’ enforcement arm – to his farm. The team found the farmer was diverting water from the Huis River, a 5km river that supplies other farmers in the valley with irrigation water, to his dam on the adjacent Doring River.
The accused farmer, Jan Crafford, had built the dam in 1998. A weir in the Huis River diverted water along a pipeline across another farmer’s property to his dam.
Under the 1956 water legislation, this sort of activity was normal. Upstream farmers were allowed to take as much water as they deemed “reasonable”.
These users were not “compelled” to share water with downstream users, unless they agreed to. This law also ignored the need for a minimum flow of water in a river to keep ecosystems working.
Under the new Act, the water department should have conducted a reserve determination on the two rivers in the Lemoenshoek Valley. This would have established how much water could be taken out for different activities, and how much needed to remain.
An emergency determination was completed last year, which the Mail & Guardian has seen. But it has remained unused and was not submitted when the water department was taken to court. It shows that excess water cannot be taken from the Lemoenshoek Dam.
As a result of the diversion and the dam, the aggrieved farmers who had asked water affairs for assistance said to the department that by 2010 no water was flowing past the weir. A virtual drought had been created in the valley.
The water affairs directive ordered Crafford to “cease to discharge water from the Lemoenshoek Dam within two calendar days” and provide an engineer’s report detailing how he would “restore and/or reinstate all the downstream users’ access to water”. Their right to access to water, enshrined in the Constitution, had been “detrimentally impacted” by the construction of the new dam and its extension.
Crafford allegedly did not act on the directive. Water flow in the valley only improved when a 2012 flood destroyed the weir and pipes moving water to his dam. In August 2014, the water department issued another directive to the Klein Karoo farmer.
He responded by taking them to court to have the directive thrown out. He also applied for permission to get access to the land of his neighbour, Richard Butt, to fix the pipes and weir that had been damaged by flooding in 2012.
In their opposing heads of argument, the water department warned that if Crafford succeeded it would “mean that the applicant will be allowed to continue with his water use, diversion and storage, without being compliant with the law”.
But this ardent opposition seems to have collapsed by the time the water department arrived this year to defend its directives before the court. They lost, with costs. The directives were overturned and Crafford was given access to his neighbour’s farm to mend his pipes. In his ruling, Judge André Blignaut repeatedly noted the lack of any explanation or in-depth opposition on the part of the department.
Dealing with the central issue of the illegal transfer of water from one river to another, he said: “The department did not explain the significance of this concept, nor the grounds for its objection.”
He continued by trying to draw from other cases to explain his interpretation of what the department wanted to say, but concluded: “The department has no law or common law principle argued in support of the view that this practice would be illegal.”
By not explaining the reasoning of the directives, the judge said the water department had failed to show how Crafford had broken the law.
He then went on to slam the department’s directives: “The issue of the directives was the result of material deficiencies in the department’s decision-making process.”