The order would force Minister Nomvula Mokonyane to "do her duty" as minister of Water and Sanitation.
The Water Tribunal is an independent body which has jurisdiction in all the provinces and consists of a chairperson, a deputy chairperson, and additional members. It has jurisdiction over water disputes. Members of the Water Tribunal must have knowledge in law, engineering, water resource management or related fields of knowledge. They are appointed by the Minister on the recommendation of the Judicial Service Commission, the body which chooses judges. The Water Tribunal replaced the Water Court in 1998.
The Minister’s refusal to appoint a new Water Tribunal has been determined as being ultra vires by the North Gauteng High Court in 2012 already. The Department had adopted a process of mediating disputes between itself and water users, and the last time a dispute was heard by the Water Tribunal was in 2011. The Court found that the Minister had acted illegally, and urged the Minister to rectify the situation as soon as possible.
The Court found that it is incumbent on the Minister to uphold the rule of law and perform her constitutional obligations, and that she cannot mero motu decide to do away with the Water Tribunal and replace it with a panel of mediators. Also, the Court found that the Department had no authorisation to issue a directive compelling water users to participate in a mediation process.
Koos Pretoria from the EEPOG says that the people are the real losers in this scenario. The Blue Scorpions are being hamstrung in the execution of their enforcement duties as they are obliged to wait for a non-existent tribunal to hear matters.
In the application to the court, the two environmental organisations are asking that the court order that the Water Tribunal be established within 90 days.