Must state supply water to farms during drought? Dead farmer finds out
Decade-long case grinds on for two years after his demise - and it all ended on a technicality
For more than a decade Free State dairy farmer Petrus Willem Terblanche battled the ministry of water and environmental affairs in a test case that continued even after his death.
But now, two years after his death, he has lost.
The case revolved around the accountability of the water affairs department in supplying farmers with water during drought and maintaining canal systems.
As one of the owners of the 457,000-hectare Farm Cornelia, which lies downstream of the Koppies Dam, Terblanche had repeatedly been involved in legal battles over the area’s water resources and water infrastructure.
After his death one of his legal claims was still being heard at the Supreme Court of Appeal (SCA) in Bloemfontein. It came to an end last month when the judges ruled against him.
The final proceedings saw Terblanche’s situation being used as a test case, where he had been trying to sue the environmental affairs minister for damages, alleging the department had failed to maintain the area’s irrigation channels.
This, he claimed, had led him to being unable to water his farm’s crops, forcing him to switch to a different type of feed for his cattle, and milk production plummeted.
But he eventually failed on a technicality and his estate was ordered to pay the costs.
In its ruling by five judges, the SCA detailed Terblanche and his fellow farmers’ issues in the area, which stemmed from as far back as the early 2000s.
In 2002, the area began suffering from a severe drought, with water restrictions put in place a year later.
“During the course of the year, the operation and maintenance of the irrigation canals ceased. As a result, during the course of that year they reached such a state of dilapidation that they could no longer be used to supply water to the deceased’s (Terblanche’s) farm,” the ruling read.
As the drought tightened its grip throughout 2004, no water was available in the Koppies Dam to be delivered – which was the department’s usual contingency plan – and even when the rain returned the following year, the water services from the dam never returned.
In 2005, the Free State Agriculture Association, acting on behalf of Terblanche and other farmers in the area, applied to the department of water and forestry for drought relief for the 2003/4 and 2004/5 financial years. The application was approved, with a rebate granted for all water used in the area’s scheme.
“However, (Terblanche) had already accumulated an account of almost R44,000 for unpaid water use charges by January 2005,” the ruling read.
Four years later, Terblanche and his fellow farmers launched an application for an order that forced the department to repair the canals, and to maintain them so that farmers could resume using them for their water supply.
The application was later settled on the basis that the government water scheme for the area be discontinued, with “certain amounts of money” paid out to the aggrieved farmers, and the water use rights of each member deregistered.
However, after the agreement was settled in 2010, Terblanche’s lawyers launched further civil proceedings against the department of water, “claiming damages allegedly sustained as a result of the (department) not having supplied water to the farm from 2007 to 2010”.
Terblanche claimed his water rights had been infringed, and that because of his inability to sustain his crops, he had suffered R250,000 in damages.
But the department argued that the case had prescribed, meaning it had run beyond the three-year limit that a case can be instituted.
The High Court in Pretoria initially agreed with this and dismissed the case based on prescription, resulting in Terblanche’s attorneys taking it to the SCA for their now-dead client.
However, Terblanche’s legal team had argued that the right to abstract water, as a farmer, was a real or statutory right, not a personal right, and thus could not prescribe, as well as the fact that it had been a continuous breach of his rights over several years.
The SCA ultimately decided that the National Water Act of 1998 dictated that not only was Terblanche’s argument flawed, he was also under an obligation to formally request the water he needed, and paying various charges for this service. While the SCA judges said that while it would not rule on whether or not the right to abstract water was a statutory right, “whatever its precise nature may have been, such right to use water was not unconditional”.
Rather, the judges ruled, it was dependent on Terblanche following the bureaucratic processes to acquire it.
“The appellant’s (Terblanche’s) submissions that the (department) bore an ongoing statutory duty to maintain the canal and distribute water, and that its failure to do so was an ongoing wrong ... falls to be rejected,” the court ruled.
Terblanche’s case was rejected, the prescription ruling was upheld, and the farmer’s side was ordered to pay the costs of both counsel.