Following only two weeks after a High Court Judgement found that the Minister of Water and Environmental Affairs had irregularly approved the waste tyre plan of the Recycling and Economic Development Initiative in July 2012, the Minister's refusal to appoint a new Water Tribunal has been determined as being ultra vires by the North Gauteng High Court. This is a major blow to the Minister, whose officials have sought to defend a process in recent months of mediating disputes between the Department of Water and water users. The DA welcomes the Court's view that the Minister has acted illegally, and urges the Minister to rectify the situation as soon as possible.
Among other things the:
• The Court found that it is incumbent on the Minister to uphold the rule of law and perform her constitutional obligations, and that she cannot mero motu decide to do away with the Water Tribunal and replace it with a panel of mediators;
• The Court found that the Department of Water had no authorisation to issue a directive compelling the applicant, Exxaro, to participate in a mediation process.
The Democratic Alliance has been raising concerns about the Minister allowing the Water Tribunal to lapse in dysfunctionality since early September. We have constantly questioned the legality of the mediation process in the portfolio committee as no binding ruling can be made through mediation and we have previously expressed the view that no applicant could be compelled to participate in mediation. It is now evident the Court concurs with this view.
The Minister said in reply to a DA parliamentary question asked on 24 August 2012 that the chairperson of the Water Tribunal, Mr Lekala resigned as far back as November 2011 to take up a position as a Judge. The Tribunal then operated with the Deputy Chairperson assuming the Chairperson role, despite that person not having a legal background. The individual was a psychologist. The term of the deputy chairperson and the other members then lapsed at the end of August.
The Minister made absolutely no attempt to reappoint a Chairperson with the required legal competence in 2012, despite the Judicial Service Commission (JSC) meeting twice this year, with the last occasion being in October, nor did she attempt to appoint the rest of the required members after their term ended. The National Water Act prescribes that the Chairperson, Deputy and the members are appointed by the Minister on the recommendation of the JSC.
It is common knowledge that the Department of Water has been reviewing possible amendments to the National Water Act with regards to the Water Tribunal. This was noted in the Minister's parliamentary reply and more recently by the DG of the Department in a meeting of the portfolio committee. Contemplating possibility amendments is the right of the Department, but it does not take away the fact that the Minister had a legal responsibility to reconstitute the Water Tribunal. The proposed mediation process was simply absurd.
As recently as 21 November 2012 I personally berated the DG of the Department in the portfolio committee for the Minister not bringing an amendment act to Parliament in 2012. Any proposed amendments, and it is not evident they actually exist in draft form, did not need to be held up by other amendments to the Water Act, which are only expected to come before Parliament in the last quarter of 2013. The DG had no answer to this.
Instead the Minister has made a mockery of the dispute process in her Department by actively allowing the Water Tribunal's existence to lapse. The applicant in this matter in the High Court, Exxaro, had the directives issues against them by the Department of Water for alleged transgressions, suspended by the Court because there is no Water Tribunal in place.
It is now incumbent on the Minister to reappoint a competent Water Tribunal immediately after the first sitting of the JSC in 2013.
Gareth Morgan, Shadow Minister of Water and Environmental Affairs