Partial relief for farmers on unlawful billing by Department of Water and Sanitation

The High Court in Pretoria has granted partial relief in a case by Sakeliga and agricultural co-applicants against the Department of Water and Sanitation (DWS) for its unlawful water-charge practices.

Sakeliga, TLU SA, and six farming operations took the DWS to court to dispute the Department’s unlawful practice of demanding that farmers pay for non-itemised accounts, as well as the Department’s attempt to collect decades-old lapsed and disputed water charges for which it cannot even provide itemised statements.

In a judgment following the hearing on 11 August, the court ordered the DWS to provide, within 60 days, complete, itemised statements, with the relevant invoices, for all amounts the Department claims are owed by the commercial farmers who were co-applicants. It clarifies the state's obligations when it collects statutory charges and the information water users must receive to verify the amounts claimed from them.

However, the court erroneously declined the declaratory relief sought by the applicants, which would have prevented the Department from the general practice of unlawful collection attempts of disputed water charges that have lapsed. The court argued that this should be dealt with at another time and under different circumstances.

Sakeliga will appeal this erroneous aspect of the judgment.

Prescription: Sakeliga to appeal

In dismissing the application for a declaratory order that water-use charges for commercial irrigation and other commercial purposes are subject to the three-year prescription period in the Prescription Act, the court has unfortunately made a judgment of limited application.

Sakeliga contends that water-use charges are ordinary debts and, as such, are subject to the three-year prescription period under section 11(d) of the Prescription Act – an interpretation the Department itself accepted in October 2021 before later contradicting its earlier position. The National Water Act expressly provides that no charge under the Act may operate as a tax, levy or duty, which reinforces the conclusion that such charges are ordinary debts subject to prescription.

Absent sound jurisprudence, the DWS’s unlawful collection practice leaves commercial water users exposed to open-ended claims by state entities, without the discipline of itemised billing and of collecting debts and resolving account disputes within reasonable time, as provided by the statutory provisions on prescription of debts.

Why this matters

For years, the Department has pursued farmers for disputed water-use charges for which it cannot provide itemised statements. Some of these predate the National Water Act of 1998.

Sakeliga and our co-applicants’ position is straightforward: farmers, companies, or other entities must receive clear and verifiable itemised water bills, and uncollected amounts cannot be pursued indefinitely.

Sakeliga thanks its co-applicants, TLU SA and the six farming businesses, for their collaboration on the court application.

Resources

• Court Order