OVERVIEW

Since the 2017 Water Use Licence Application and Appeals Regulations (“WULA Regulations”) were introduced, confusion has persisted: Is landowner consent always required to get a water use licence?

Annexure C to the WULA Regulations made it seem like the answer was yes. It included a checklist item suggesting that, without a signed consent form from the landowner, no application could proceed. This created the impression that landowners had a veto, particularly in mining and infrastructure projects.

The Supreme Court of Appeal has now clarified the position. Its recent judgment in Endangered Wildlife Trust and Another v Director-General, Department of Water and Sanitation and Another [2025] ZASCA 69 (“EWT”) confirms that landowner consent is not an absolute requirement.

PRIOR REGULATORY CONFUSION

The WULA Regulations came with various forms and checklists. Annexure C was among them. It stated that landowner consent was mandatory where the applicant was not the landowner. The result? Legal uncertainty.

Many believed that the Department of Water and Sanitation (“Department”) could not approve a water use licence unless consent was granted. This was particularly problematic for mining companies or developers needing access to land owned by third parties, especially where landowners were unresponsive or opposed to the project in principle.

Section 24 of the National Water Act, 36 of 1998 (“NWA”) was at the centre of the confusion. How much discretion did it really give the Department?

Until now, no court had clarified this. The EWT case has changed that.

WHAT THE EWT CASE DECIDED

The case concerned a statutory appeal under section 149(1) of the NWA. The challenge was brought by the Endangered Wildlife Trust, opposing a water use licence granted to Atha-Africa Ventures for its Yzermyn underground coal mine in Mpumalanga.

The key issue? The Department had issued the licence without the landowner’s consent. The affected land, the Zoetfontein farm, was situated above the proposed underground operations. The landowner had not signed any consent form. EWT argued this was fatal to the validity of the licence.

But the Department had included a condition: no mining could start until the company proved it had lawful access. Was that enough? The appellants said no. In their view, consent could only be dispensed with where the water use served the “public interest”. A private mining company, they argued, didn’t qualify.

THE SCA’S INTERPRETATION OF SECTION 24

The Supreme Court of Appeal disagreed, firmly.

It found that the phrase “good reason” in section 24 must be interpreted using its ordinary meaning. It is not limited to the public interest. If Parliament had wanted to impose that restriction, it would have said so.

The Court emphasised the broader goals of the NWA: environmental protection, efficient water use, and socio-economic development. A narrow interpretation, it said, would undermine those objectives.

The judgment also reinforced the role of the state as public trustee of the nation’s water resources under section 3 of the NWA. The Minister’s responsibility is to regulate water use in the public interest, and to make decisions that serve broader social and economic goals.

APPLYING THE PRINCIPLES TO THE FACTS

The authorised water use involved underground activities under section 21(c) and (i) of the NWA, not surface infrastructure. The landowner had been notified. Documents were shared. Invitations to meet were sent. But no response came.

The Tribunal (and later the SCA) found that the landowner had been adequately informed. The public participation process had been followed. No objection was received.

Critically, the Department had required proof of lawful access before any mining could begin. This protected the landowner’s property rights, while still allowing the licence to be issued in the interim.

Based on this, the Tribunal held that there was good reason to dispense with consent. The SCA agreed. The decision was supported by evidence: ecological studies, socio-economic benefits, and the need for efficient resource use.

WHY THIS MATTERS

The judgment settles long-standing legal uncertainty. It confirms that landowner consent is not a jurisdictional requirement for a water use licence.

Instead, regulators may dispense with consent, if there’s a good reason. That reason may be legal, technical, economic, or environmental. It does not have to be “public interest” in a narrow sense.

For regulators, this means more flexibility. For developers, especially in mining and infrastructure, it reduces the risk of being blocked by absent or obstructive landowners.

Prior authorisations, where the Department followed due process and provided a reasoned justification, are now on firmer legal ground.

KEY TAKEAWAYS   

• Landowner consent is not absolute under section 24 of the NWA.
  
  
• The Department can dispense with consent, where justified by facts and context.
  
  
• Especially relevant for underground mining and non-surface water uses.
  
  
• Landowners cannot veto projects by simply withholding consent.
  
  
• Environmental safeguards and public consultation still apply.

CONCLUSION

The Supreme Court of Appeal’s decision in the EWT case brings much-needed clarity to the role of landowner consent in water use licensing. It confirms that while landowner participation is a valued part of the process, consent is not a legal prerequisite. The law permits regulators to issue licences without consent, where justified,  provided procedural safeguards and environmental responsibilities are respected.

Importantly, the case also raises broader considerations about underground water and how it is regulated under the NWA. While the facts involved an underground coal mine, many licensed water uses, including discharges, dewatering, infiltration, storage, and abstraction, affect subsurface water systems, even without obvious surface activity. Section 21 of the NWA captures a wide array of water uses, many of which have indirect or cumulative impacts on groundwater or aquifers.

The judgment serves as a reminder: regulators and applicants must assess whether a water use affects underground water, even where the impact is less visible or less immediate. Simply because a pipeline or discharge occurs above ground does not mean it escapes the regulatory framework for subsurface water.

In this light, the ruling has far-reaching implications. It affirms a functional and pragmatic approach to water licensing, where the discretion to waive landowner consent is exercised in context, with reference to hydrological realities, project-specific facts, and the broader objectives of sustainable development.

It’s a significant step toward legal certainty for all stakeholders. And it underscores the principle that while land rights are protected, they do not create a veto over lawful and environmentally regulated water use.