IN THE WATER TRIBUNAL 
HELD AT PRETORIA

CASE NO: WT 03/06/2010

In the matter between:-

ESCARPMENT ENVIRONMENT PROTECTION GROUP 	1ST APPELLANT 

WONDERFONTEIN ENVIRONMENTAL COMMITTEE	2ND APPELLANT 
and

EXXARO COAL (PTY) LTD 	2ND RESPONDENT

APPEAL RULING : 2011-07-21
APPEARANCES:
Coram:	LJ Lekale (Mr) - Chairperson 
Mr H Thompson - Member 
Mr A.S Makhanya – Member

Legal Resources Centre -Johannesburg

Services Directorate - Pretoria 

[1]     The appeal hearing was held on the 11  July 2011 at Pretoria.

[5] In the event of the aforegoing question being decided in the negative, the Tribunal is in law obliged to non-suit the appellants and to dismiss the appeal accordingly.

BACKGROUND TO THE ISSUE:

[6] In 2008 the Second Respondent applied for a water use licence after it had secured a mining right in Belfast from the Department of Minerals and Energy to which the appellants had objected.

[7] The appellants engaged with the Second Respondent in a series of meetings over the application for a water use licence until they lodged a written objection to the grant of the said licence with the First Respondent on the 2 September 2008.

[9]     The appellants felt aggrieved by the decision to grant the relevant licence and lodged an appeal with the Tribunal.

SURVEY OF EVIDENCE AND ARGUMENT:

[11]    No oral evidence was tendered. The parties made verbal submissions and the appellants further relied on Heads of Argument delivered on their behalf.

(a)	the First Respondent failed to exercise the discretion bestowed upon it by section 41(2)(c) of NWA when it did not call for comments on the Second Respondent's application;
(b)	in terms of the Constitution the appellants have the right to an environment that is not harmful to health or well being, among others;
(c)	the Constitution further grants the appellants the right to administrative action that is lawful, reasonable and procedurally fair;
(d)	the Tribunal is constitutionally obliged to promote the spirit, purport and objects of the Bill of Rights when it interprets NWA;
(e)	an interpretation which does not recognise the appellants' standing as appellants does not fall within the constitutional bounds and should not

participation process;

(b) the appellants are non-suited on the aforegoing ground alone;

[16] The question is, therefore, whether or not the said objection is the one contemplated by section 148(1 )(f) of NWA for the purposes of clothing the appellants herein with the requisite status of persons who have lodged an objection timeously.

[17] The parties are further in agreement that a strict literal interpretation of the relevant provisions of NWA results in the appellants not having the requisite standing to commence the present proceedings.

[18] Mr. Wilks contends that the strict interpretation is not in conformity with the Constitution as read with the provisions of NEMA.

[19] Mr Wilks, however, correctly concedes that the said literal interpretation does not limit any of the appellants' rights of recourse to courts of law and further that a liberal interpretation may lead to the opening of a floodgate which could not reasonably possibly have been intended by the legislature when it enacted section 148(1 )(f) of NWA.

[20] In the Tribunal's view the literal construction of the relevant provisions does not offend the Constitution and only serves to recognise and implement the extension of the right to appeal to the Tribunal by only those persons who have been identified by the legislature as deserving of such a right.

[21] The construction which the appellants advocate for can, with respect, not reasonably be ascribed to section 148(1)(f) read with the provisions of section 41 of NWA insofar as:

[22] The appellants are, therefore, not the kind of objectors contemplated by section 148(1 )(f) of NWA for the purpose of lodging appeals with the Tribunal and are, as such, non-suited to bring the present appeal.
[23]    In the light of the aforegoing finding it is not necessary, in the Tribunal's view,   to determine whether or not the appellants are "persons" in terms of section 1 (xiv) of NWA.

DECISION:
[24] In the result the appellants have no standing to lodge the present appeal. [25]   [25] The appeal is, therefore, dismissed.

L.J. LEKALE
(CHAIRPERSON)