The Water Tribunal has ruled, in Canyon Resources (Pty) Ltd v Chief Director: Water Use Licensing and Others, that a landowner's refusal to sign a consent form cannot, on its own, bar a mining company from obtaining an integrated water use licence (IWUL). Licensing and Others, that a landowner's refusal to sign a consent form cannot, on its own, bar a mining company from obtaining an integrated water use licence (IWUL).
The dispute
Canyon Resources (Pty) Ltd (Canyon Resources) holds a mining right for its proposed Driefontein Mine near Middelburg, Mpumalanga, and applied for an IWUL. The Department of Water and Sanitation (DWS) refused the application for one reason only: Canyon Resources had not obtained a signed DW902 consent form from the private landowner.
Canyon's case
Canyon Resources argued that DWS had exceeded its powers under the National Water Act 36 of 1998 (NWA) by treating landowner consent as a precondition for an IWUL. The consent form, it argued, is included in Annexure C to the Water Use Licence Application and Appeals Regulations, 2017, as part of a checklist, rather than as a substantive requirement under the NWA. The Department's own Record of Recommendation also supported the granting of the licence.
Canyon Resources further argued that, if consent genuinely could not be obtained, the appropriate mechanisms to invoke are the statutory servitude provisions in sections 126 to 131 of the NWA, or compensation under section 54 of the Mineral and Petroleum Resources Development Act 28 of 2002 (MPRDA), after the licence had been granted, not before.
DWS argued that section 41(1)(a) of the NWA, read with section 24 (which concerns landowner consent for water found underground on land that the applicant does not own), made consent a non-negotiable requirement. It further argued that granting a licence without consent could amount to an arbitrary deprivation of property under section 25 of the Constitution. DWS relied heavily on the Tribunal's earlier decision in
Labonte 5 (Pty) Ltd v Minister of Water and Sanitation, in which a failure to meet consent requirements had proved fatal.
The Tribunal's findings
The Tribunal sided with Canyon Resources. It found that the substantive administrative information required for the application had been provided and that the landowners had participated in the public participation process without objecting.
Labonte 5 did not assist DWS, as that case concerned an ordinary water use licence rather than one linked to an existing mining right. A mining right holder can invoke the servitude mechanism in sections 126 to 131 of the NWA or the section 54 compensation regime under the MPRDA once the IWUL has been granted. DWS's refusal was accordingly set aside and the IWUL was granted, subject to outstanding land access issues being resolved by agreement or through the applicable servitude mechanism.
What this means, and why DWS may not be finished yet
For mining right holders navigating the IWUL process, the judgment has two immediate implications:
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Landowner consent is not a gatekeeping requirement: A responsible authority cannot lawfully refuse an IWUL solely because a landowner has withheld consent or is unreachable, where the application otherwise meets the applicable statutory and technical requirements.
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Licensing sequencing now favours applicants: Access and servitude disputes may be resolved after licensing rather than being treated as a precondition to the granting of an IWUL. This may unblock projects stalled solely because of land access negotiations.
This may not be the final word, however. Under section 149 of the NWA, a party may appeal a Water Tribunal decision to the High Court on a question of law within 21 days. DWS has not indicated whether it will do so. Mining right holders facing delays or refusals in the IWUL process because of landowner consent requirements should therefore monitor whether DWS appeals the decision, while reassessing their own application strategy in light of the Tribunal's ruling.
