1. K Ellis IUCNAEL Water Colloquium 5 July 2011

2. Judicial review By a High Court Promotion of Administrative Justice Act (PAJA) Administrative action (includes failure to take a decision) Review of decision after internal remedies are exhausted Court must give deference to decisionmaker Appeal to Supreme Court of Appeal or Constitutional Court Appeal or application By the Water Tribunal National Water Act (NWA) Directives, decisions, preliminary allocation schedules, amendments to licences, claims for costs Catchment management agencies, water management institutions, Department of Water Affairs, Minister of Water and Environmental Affairs Rehearing of decision taken Can gather further evidence using statutory powers Appeal to High Court on question of law Subject to PAJA review by High Court etc. 2

3. Composition At least two members (currently five) qualified in: Law Engineering Water resource management Related fields of knowledge Powers Hear appeals specified in s 148(1) of National Water Act (NWA) Receive evidence in the course of hearing an appeal Oral testimony Documentary evidence Subpoena evidence Oral testimony Documentary evidence Conduct investigations in loco in advance of hearing an appeal Contempt 3

4. Jurisdictional limits of the Tribunal Powers set out in the NWA or necessary ancillary powers No appeal until a decision has been rendered No review of its own decisions No review of internal strategic perspectives or catchment management strategies No ability to address apparent gaps within the NWA Inconsistencies within the jurisprudence Rehearing vs review/PAJA Importance of Section 27(1)(b) redress factor Decisions of the Tribunal indicating a need for greater legislative clarity within or judicial interpretation of the NWA Ability to consider questions of law Issues of locus standi in Section 148(1) Proper place for PAJA review? 4

5. Shortcomings Inconsistencies Failure to use all statutory tools and to take full advantage of the specialised knowledge of the members Successes Two recent full rehearings Development of a body of jurisprudence 5

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