1 Portfolio Committee on Water and Environmental Affairs WATER TRIBUNAL 16 APRIL 2013

WATER TRIBUNAL CHALLENGES Inform the Portfolio Committee on the current status of Water Tribunal Inform PC that the Minister has invoked the alternative dispute resolution process provided for in terms of section 150 of the NWA as an interim measure whilst the Water Tribunal is not in operation. Inform PC that Minister and DWA have already embarked on process of appointing a new Water Tribunal in terms of the existing National Water Act for a period deemed prudent, whilst the amendments in the draft National Water Act Amendment Bill is being done. 1

PROBLEMS AND CHALLENGES The Water Tribunal (Tribunal) faced numerous problems and challenges as set out below: The Chairperson Mr Lekala resigned in November 2011 to take up an appointment as a judge in Bloemfontein. The NWA provides that the Chairperson must be a person with practical legal experience. The Water Tribunal was operating with Deputy Chairperson and who is a psychologist not a legal practitioner. The other members of the Tribunal where engineers and also not legal practitioners. The term of office of the Deputy Chairperson and members came to an end in August

Problems and Challenges cont... Whilst the Tribunal was operating since the end of 2011 there were arguments that the Tribunal was not legal competent and therefore not properly and legally constituted. This point was argued in The Goede Wellington case and the court ruled that the Tribunal was not properly and legally constituted. In all subsequent matters before the Water Tribunal, both the appellants and the respondents continued to challenge the composition and the legal competency of the Tribunal and also raised the valid point that the Water Tribunal did not have a proper set of rules of procedure. 3

Problems and Challenges cont... The Water Tribunal also adopted an incorrect judicial philosophy and approach in dealing with the appeals. The appellants were dissatisfied with the manner in which the Water Tribunal were adjudicating the disputes. An illustration of this issue is found in the Draft paper entitled “Legal Competence and Regulation” by the Water Research Commission dated March It was found in this paper that the Water Tribunal has adopted a narrow approach on who these interested and affected parties may be that are entitled to bring appeals before it. This paper notes further that the Water Tribunal has dismissed around 15% of the cases on jurisdictional grounds and this raises the question as to whether its mandate is being interpreted to be too narrow. This paper concludes that as the Water Tribunal dismisses more and more cases on jurisdictional grounds, it is likely that many potential appellants will bypass the Water Tribunal and go straight to the High Court. The paper argues that this indirect result does not conform to the intention of having a functional and efficient administrative tribunal in place. A copy of the final paper is not yet available. 4

Problems and challenges cont.. The DWAwas of the opinion that the current Tribunal is not legally competent. This opinion is reinforced by the legal opinion of Adv Paul Kennedy SC, who has concluded as follows in his opinion “I accordingly conclude that in the absence of a replacement person being appointed validly by the Minister (on the recommendation of the Judicial Service Commission as required in the legislation), no other Tribunal member can lawfully be designated to preside over any specific appeal or application. If they were to do so and to purport to make a decision on such appeal or application, they would be acting without authority. In consequence any decision they make would be ultra vires and liable to be set aside on review”. From the above it was clear to the Department that Water Tribunal was in desperate need of legal reform. The draft amendments to the National Water Act have been completed and the Amendment Bill will be taken to Cabinet in

Status... There are currently forty four (44) appeals that are pending in the Water Tribunal. These appeals are being handled in terms of section 150 NWA (round table negotiations and mediation ) NWA Amendment Bill will amend provisions relating to WT substantially A new Water Tribunal in line with Minister’s and DWA’s vision, policy and legislative review and reform Bring WT in line with other tribunals such as Competition Tribunal and Consumer Protection Tribunal New process of appointment of WT as recommended by Minister and appointed by President ( no JSC and WRC involvement) Clothed with wider powers such as review, imposition of fines and penalties Enhance confidence of appellants in coming to WT 3

THANK YOU 13