- Department granted a 20-year water use licence without listening to affected farmers.
- Landowners successfully challenged the approval after being excluded from the decision-making process.
- The municipality can submit a new application while the current licence stays temporarily valid
Farmers who challenged the Department of Water and Sanitation's decision to grant Cederberg Municipality a long-term water use licence have won a significant legal victory after a judge found they were denied an opportunity to be heard before the licence was approved.
The High Court in the Western Cape ruled that the department acted unfairly when it granted the municipality permission to abstract groundwater from three boreholes on privately owned farmland near Lambert's Bay without first notifying the affected landowners or inviting them to make representations.
The licence, granted in March 2023, allows the municipality to abstract a combined 567 648 cubic metres of groundwater each year for 20 years.
Farmers challenge licence process
The applicants, the trustees of the ISW Van Zyl Trust and neighbouring farmer Hendrick Gideon Louw, approached the court after discovering that the licence had already been issued even though the boreholes are situated on their land.
The municipality had previously drawn groundwater from the boreholes under agreements with the landowners. Those agreements expired after the parties failed to agree on new compensation, but the municipality continued abstracting water while applying for a long-term water use licence.
The farmers argued that the department should never have approved the application without first consulting them and considering the effect continued groundwater abstraction could have on their farming operations.
Judge finds farmers were denied a fair hearing
Justice M Sher agreed, finding that the department failed to follow a fair administrative process before granting the licence.
The judge said, "A responsible authority may not dispense with a landowner's consent without them being notified of the application and being given a reasonable opportunity to make representations or submissions."
The department argued that the farmers were not entitled to be consulted because they were not registered lawful water users.
The court rejected that argument, holding that ownership of the land gave the applicants a direct interest in the licence application and that they should have been allowed to participate in the decision-making process.
Justice Sher said, "The responsible authority's failure to provide the applicants with a reasonable opportunity to make representations constituted a breach of the applicants' rights to procedurally fair administrative action."
Groundwater concerns should have been considered
The farmers also argued that continued groundwater abstraction had already affected their farming activities. They said several boreholes had failed since 2021, and increasing salinity had reduced water quality.
The court found that these concerns were relevant to the licence application and should have been considered before the department reached its decision.
Justice Sher said, "Common sense and fairness dictate that before granting a water use licence these steps should have been taken."
The judgment also noted that other nearby groundwater users may have been affected and should be considered if a fresh application is submitted.
Fresh application may be submitted
The court reviewed and set aside the water use licence but suspended its order for 18 months, or until the Department of Water and Sanitation decides a fresh application, whichever happens first.
This means the municipality may continue abstracting groundwater for Lambert's Bay while a new application is processed. If the municipality reapplies, the department must notify the affected farmers and consider any representations they make before deciding whether to grant another water use licence.
The respondents were ordered to pay the applicants' legal costs, including the costs of two counsel.
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