On 9 July 2026, the Western Cape Division of the High Court handed down judgment in Van Zyl and Others v Minister of Water and Sanitation and Others (Van Zyl Judgment), reviewing and setting aside the decision by the Department of Water and Sanitation (DWS) to issue a water use licence (WUL) to the Cederberg Municipality (the Municipality). The WUL allowed the Municipality to abstract a combined total volume of 567 648 m³ of groundwater per annum from three boreholes on the applicants’ land for a period of 20 years.
The dispute arose against the backdrop of earlier groundwater abstraction agreements between the Municipality and the relevant landowners, which had ended by 2021. In April 2019, while those arrangements were still in place, the Municipality applied to the DWS for a WUL to authorise abstraction from the three boreholes. The DWS later requested a landowner consent form signed by the relevant landowner, but the record did not show that the DWS formally sought such consent nor did it show that any equivalent steps were taken in relation to the second landowner.
The WUL was ultimately issued to the Municipality on 23 March 2023, allowing the abstraction of groundwater from the three boreholes for a period of 20 years. The applicants challenged the WUL on procedural grounds, arguing that despite having an interest as landowners, they were not formally notified of the WUL application and were not given an opportunity to object, provide input or appeal the issuing of the WUL. This was important because section 24 of the National Water Act 36 of 1998 (NWA) provides that a “licence may be granted to use water found underground on land not owned by the applicant if the owner of the land consents or if there is good reason to do so.” The Court accepted that the Municipality did not formally engage the applicants, request their consent, or give them notice that their consent may be dispensed with under section 24 of the NWA.
The Court rejected the respondents’ argument that the applicants had no relevant interest because they were not existing lawful water users. Section 24 of the NWA focuses on the owner of the land from which groundwater is to be abstracted, not only on registered water users. The Court also held that section 27 of the NWA requires a responsible authority to consider all relevant factors, including the likely effect of the proposed water use on the water resource, “other water users” and persons with interests in the land.
The Van Zyl Judgment is significant because the Court held that section 24 of the NWA requires prior notice and engagement with the landowner before a WUL is issued for the abstraction of water on that land. Landowner consent cannot be dispensed with unless the landowner has first been notified of the application and given a proper opportunity to consider it, engage with the applicant and make representations. Without that process, the responsible authority cannot rationally determine whether there is “good reason” to issue the WUL despite the absence of consent. The Court therefore held that the responsible authority was not entitled to summarily dispense with the applicants’ consent. This duty applies to the landowner and is not limited to existing lawful registered water users under Part 3 of the NWA.
The Court also considered section 41(4) of the NWA, which provides that a responsible authority “may” require an applicant to give suitable notice of a WUL application to interested persons, invite objections, and consider whether other interests in the land may be adversely affected. Although section 41(4) is phrased in permissive terms, the Court did not hold that “may” literally means “must”. Rather, it held that the power to require notice may be coupled with a duty to exercise that power in appropriate circumstances. In the context of a section 24 licence involving groundwater abstraction from another person’s land without consent, the notice provisions cannot be construed to be purely discretionary, as a failure to notify resulted in the landowners being deprived of the opportunity to consider and or object to an application and, consequently, to have the right to pursue the NWA appeal process. The Court held that the failure to afford them a reasonable opportunity to make representations breached their right to procedurally fair administrative action under the Promotion of Administrative Justice Act 3 of 2000.
In practical terms, the Van Zyl Judgment confirms that where a WUL application concerns groundwater abstraction from third-party land, interested and affected persons should be given a reasonable opportunity to consider, engage with and respond to the application. This is especially important where the abstraction may affect landowners, nearby borehole users, farming operations or the sustainability of the water resource. Although the WUL was reviewed and set aside, the Court suspended the order for 18 months, or until the fresh application is reconsidered. The Municipality may resubmit the application, which must be reconsidered with regard to the Van Zyl Judgment and the applicants’ submissions.
