Business organisation Sakeliga and farmers organisation TLU SA, together with various farmers in Limpopo, have filed an application at the Gauteng High Court in Pretoria, to stop the department of water and sanitation from “unlawfully collecting expired water-use debts”.
The application against water and sanitation minister Pemmy Majodina and her director-general, Sean Phillips, effectively seeks a declaratory order that water use charges for commercial and agricultural purposes are subject to a three-year prescription.
The organisations are also seeking an order compelling the department to provide complete itemised statements to affected farmers. They argue that unless the court intervenes, agricultural water users would continue to face demands for payment of prescribed debts, a move that could disrupt business planning, threaten food security and risks job losses.
Prescribed debts could be described as debts that are no longer legally enforceable because a certain period of time has passed, usually three years in SA, without the debtor acknowledging the debt or making any payment. Once a debt has prescribed, creditors cannot force payment through legal action.
In a joint statement, Sakeliga and TLU SA said the water and sanitation department admitted in October 2021 that water use charges lapsed after three years under the Prescription Act, but had now “changed their stance, apparently to unlawfully increase revenue collection”.
The department is at the forefront of several water infrastructure projects costing the fiscus billions of rand.
They include, among others, phase 2 of the Lesotho Highlands Water Project (R53bn), Clanwilliam Dam project (R7bn), Tzaneen Dam project (R760m), Mzimvubu water project (R8.1bn), and phase 2 of the Mokolo and Crocodile River (West) Water Augmentation Project (R12.4bn).
In a parliamentary debate on her budget vote last week Wednesday, Majodina said the problem of water debt, “which is about R24bn”, was detrimental to water security in the country.
According to the Blue and Green Drop reports, 105 out of the 144 water services authorities in SA are experiencing a water service delivery crisis. These municipalities were unable to provide basic service delivery and the management of critical infrastructure such as water treatment plants and wastewater treatment plants.
Sakeliga and TLU SA said for years the department had been attempting to collect “decades-old water use charges, some dating back to before the National Water Act came into effect in 1998”.
“Commercial farmers have been subjected to harassment and intimidation by debt collectors, demanding payment for amounts that have long since been prescribed, threats of legal action, and demands for payment without proper itemised billing statements showing how the amounts are calculated,” they said.
They argued in the application water use charges were not taxes and were therefore ordinary debt subject to three-year prescription under the Prescription Act.
“This case is of utmost importance to commercial farmers, who seek legal certainty on the prescription of water use debt. This application is a critical test case for the proper application of prescription law to statutory charges and the limits of state revenue collection powers.”
Water expert Dr Ferrial Adam bemoaned the state of nonpayment for water in this country, saying it was "appalling".
“Our water boards are collapsing, they are not being paid, people must pay for water they are using, especially agriculture and business, because they can. Most of these [industries] can afford to pay for water they are using,” Adam said.
She questioned why the government had taken so long to go after non payers: “What have they been doing that they are not collecting bills?”
Departmental spokesperson Wisane Mavasa did not immediately respond to a request for comment.
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