Leadal Investments Properties (PTY) LTD v Inkomati – Usuthu Catchment Management Agency and others
In this matter, the Applicant, Leadal Investments (“Leadal”) approached the Mpumalanga High Court seeking an order reviewing and setting aside a decision by the First Respondent (IUCMA) to issue a directive in terms of section 53(1) of the National Water Act No. 36 of 1998 (“the Act”).
The directive relates to water use activities which were not permitted by the IUCMA on one of its properties. Leadal, citing a myriad of reasons and sections, based their challenge and subsequent request for the Court to set aside the IUCMA’s decision on the provisions of the Promotion of Administrative Justice Act No. 3 of 2000 (“PAJA”).
The basis of the IUCMA’s defence was a preliminary one, namely that Leadal had not exhausted internal remedies provided for by the Act.
Leadal also raised two preliminary issues, namely; that the CEO of IUCMA lacked the authority to depose to the affidavit on behalf of the IUCMA and the Department, and that the evidence of two witnesses of the IUCMA should not be considered by the Court.
Leadal also raised substantive issues, namely; the IUCMA had already taken a decision at one of the meetings between the parties and the IUCMA thus became disempowered to change its own decision in the circumstances, it would have served no purpose for Leadal to take the matter on appeal to the Water Tribunal and lastly, Leadal contended that the circumstances in this matter are so extraordinary that they justify the Court exempting them from exhausting internal remedies.
The Court found that:
Leadal completely misinterpreted the purpose of the rule on which it relied. It also found that Leadal did not comply with the provisions of PAJA in that it failed to exhaust internal remedies envisaged in the Act and further failed to apply to Court for an exemption to do so.
Leadal also did not demonstrate that its attempt to exhaust internal remedies had somewhat been frustrated. The application was thus dismissed with costs to be paid by Leadal.
