Case Overview

On 14 July 2025, the Gauteng Division of the High Court handed down judgment in Barnard and Another v Minister of Environmental Affairs and Others (Case No. 9952/2019).

The case arose after the State’s Working for Water programme (WfW) applied a herbicide, Kaput 100 Gel (containing picloram), in and around irrigation dams on a Limpopo farm. The herbicide contaminated the farm’s water supply, destroying commercial crops.

The Court found the State liable for damages, a ruling with major implications for how environmental programmes are conducted and how contracts with the State are interpreted.

The Facts

• Farmers in Limpopo participated in WfW’s alien vegetation clearing programme.
• Initial work in 2015 was incident-free.
• In 2016, WfW applied the herbicide directly in a catchment and irrigation dam.
• The herbicide is highly toxic to crops such as tomatoes, pumpkins, and tobacco, and its use near water bodies is prohibited.
• The contamination destroyed crops and rendered the dam unusable.
• The State argued it was indemnified under a landowner agreement and that an independent contractor performed the work.

Key Court Findings

1. Duty of Care in Environmental Programmes

• The Court confirmed that the State has a constitutional and statutory duty of care when carrying out environmental programmes.
• Agencies must ensure workers are qualified, trained, and supervised.

2. Indemnity Defences Rejected

• The Court ruled that the State cannot contract out of statutory obligations, even through indemnities or disclaimers.
• Constitutional and legislative duties override private contracts.

3. Contractors Do Not Remove Liability

• Because WfW directed the herbicide choice, training, and supervision, the contractor was not independent.
• The State remained liable despite outsourcing the work.

4. Contributory Negligence Dismissed

• Farmers were not at fault. It was reasonable to rely on the State’s oversight and competence.

Why This Matters to You

Although this case involved farming and herbicides, its principles affect every business that contracts with the State or participates in government-led programmes.

• Indemnity clauses are not bulletproof. If a statutory duty is breached, no contract can shield an organisation from liability.
• Oversight cannot be outsourced. Even when contractors are involved, the party exercising control and decision-making remains accountable.
• Clients can challenge negligence. Businesses, landowners, and investors can hold the State (or counterparties) accountable when harm flows from unlawful conduct.

Key Takeaways for Businesses

• Review your contracts. Don’t assume indemnities protect you; ensure agreements align with statutory obligations.
• Audit your compliance frameworks. Proactively verify that both your team and contractors are following environmental and governance laws.
• Strengthen governance. Build oversight structures that reflect constitutional and legislative duties.
• Know your rights. Participation in State programmes or public-private partnerships doesn’t mean forfeiting your protections.

The Barnard judgment confirms that environmental and constitutional duties cannot be contracted away. For businesses, this means that accountability remains central, whether you’re a farmer, a mining house, an energy project developer, or a corporate engaging with the State.

At Bishop Fraser Attorneys, we specialise in environmental, mining, governance, and commercial law. Our goal is to help clients anticipate risks, structure contracts responsibly, and navigate disputes when obligations are breached. We help clients understand the complex relationship between law, compliance, and operations.

If you would like to learn how a particular ruling might impact your contracts, compliance obligations, or risk profile, please get in touch with our team at info@bishopfraser.co.za.