Strengthening the recognition of strategic water source areas in decisions on water use licences [Discussion of Endangered Wildlife Trust v Director-General, Department of Water and Sanitation (WT 03/17/MP) [2019] ZAWT 3 (22 May 2019)

Abstract

There has been increasing recognition of the importance and value of strategic water source areas (“SWSAs”). SWSAs form about 10% of South Africa’s landscape and provide 50% of the country’s water. Their strategic importance lies in their significant ability to provide for the country’s economic, agricultural and basic human needs. One such SWSA has been at the centre of various court hearings, due to proposed mining activities in the Mabola Protected Environment – which falls squarely within the Enkangala Drakensberg SWSA. In May 2019, the Water Tribunal handed down a judgment pertaining to the water use licence application for these proposed mining activities in Endangered Wildlife Trust v The Director-General, Department of Water and Sanitation (WT 03/17/MP) [2019] ZAWT 3 (22 May 2019). The applicants challenged the decision to grant the water use licence on seven grounds, all revolving around how public authorities should exercise their statutory mandates when dealing with the country’s most scarce natural resource – water. As important as the judgment is for underscoring the balance between the use of natural resources and economic gain, it also highlights a trite point – SWSAs are not regulated in South Africa’s environmental legislation and as such, their legal protection is questionable. Although various scientific research documents and guidelines point to the need to protect SWSAs, the Tribunal insisted that these do not meet the “relevant considerations” requirement as per the National Water Act 36 of 1998 and could thus not be taken into account when coming to its final decision. This case note has three objectives. First, to provide a summary of the case and the Tribunal’s findings. Secondly, to reflect critically on the lessons learned from the Tribunal’s consideration of the scientific reports calling for SWSA protection. Thirdly, to suggest a way forward for promoting the protection of SWSAs in environmental law.