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      Water Security and Judicial and Administrative Confusion in South Africa: The Trustees of the Time Being of the Lucas Scheepers Trust, IT 633/96 ν MEC for the Department of Water Affairs, Gauteng 2015 ZAGPPHC 211(17 April 2015)

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          Abstract

          One of the gravest constraints which South Africa faces in its efforts to promote development and to lift much of its population out of poverty is the relative scarcity of its water. Significant changes were made to South Africa's water law in the 1990s, especially with the promulgation of the National Water Act 36 of 1998. In terms of this Act a Water Tribunal was created which ought to have enhanced water security and to have provided a settled forum to adjudicate disputes and to assist in developing the jurisprudence of water law. Instead the Tribunal appears to have created almost as much confusion as clarity before it was dissolved in much uncertainty over whether it would continue in existence or not. A recent judgment in the Gauteng High Court (Trustees of the Time Being of the Lucas Scheepers Trust, IT 633/96 v MEC for the Department of Water Affairs, Gauteng) has created uncertainty by departing from the precedent of a relatively recent judgment in the North Gauteng High Court (Escarpment Environment Protection Group and Wonderfontein Community Association v Department of Water Affairs and Xstrata Alloys (Pty) Ltd and The Water Tribunal). In the context of the uncertainty created by the falling into desuetude, at least between 2011 and 2016, of the Water Tribunal, and contradictory indications from National Government, litigants have been forced to seek other fora for remedies. On occasion, courts have been sympathetic and given sensitive judgments -on occasion they have not. Against this background of inconsistent jurisprudence, it is important that there be greater clarity of rights, duties and institutions, and that institutions become settled as soon as possible so that a consistent jurisprudence can begin to emerge in the water rights field. While the situation stabilises, which it is hoped that it will soon begin to do, it is suggested that both courts and government act with circumspection in considering applications concerning water use rights; and be sensitive of the current uncertain circumstances when making decisions. The difficulties of ensuring water security and administrative fairness in South Africa demand nothing less.

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          Most cited references 18

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          Administrative law in South Africa

           C Hoexter (2012)
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            Environmental Law

             M Kidd (2011)
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              Water Law: A Practical Approach to Resource Management and the Provision of Services

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                Author and article information

                Contributors
                Role: ND
                Role: ND
                Role: ND
                Journal
                pelj
                PER: Potchefstroomse Elektroniese Regsblad
                PER
                Publication of North-West University (Potchefstroom Campus) (Potchefstroom, North-West Province, South Africa )
                1727-3781
                2017
                : 20
                : 1
                : 1-26
                Affiliations
                orgnameUniversity of Sydney Australia
                orgnameUniversity of KwaZulu-Natal South Africa ed.couzens@ 123456sydney.edu.au
                orgnameUniversity of Sydney Australia
                orgnameUniversity of KwaZulu-Natal South Africa bellengerea@ 123456ukzn.ac.za
                orgnameUniversity of Sydney Australia
                orgnameUniversity of KwaZulu-Natal South Africa maduramuthu@ 123456ukzn.ac.za
                Article
                S1727-37812017000100010
                10.17159/1727-3781/2017/v20n0a1686

                This work is licensed under a Creative Commons Attribution-ShareAlike 4.0 International License.

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                Figures: 0, Tables: 0, Equations: 0, References: 18, Pages: 26
                Product
                Product Information: SciELO South Africa

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