JSC recommends candidates for Water Tribunal

The Judicial Service Commission (JSC) on Friday recommended two candidates for chairperson of the Water Tribunal, the body that adjudicates appeals against directives and decisions made in terms of the National Water Act.  

After interviewing four candidates, advocate Puseletso Loselo and attorney Thembelani Nkele were recommended for the post. Water affairs minister Senzo Mchunu will make his choice from the two.  

During interviews, candidates were asked how they would deal with a five-year backlog at the tribunal and other challenges, including structural problems created by legislation and rules causing bottlenecks.  

These included adjudication which the decision maker, who was often situated in provincial offices, had to deliver to the tribunal as a record of the decision, which Loselo said held up its ability to make decisions, and the fact that the tribunal had no budget of its own, but was allocated its budget by the department, and this was inadequate.  

Loselo, who had worked in the water and sanitation department previously and had been part of the drafting team of much of the water legislation and regulations, said the first thing he would do if appointed would be to ascertain how many of those cases were still live disputes, as it may be that were “completely dormant”, in the sense that nobody is pursuing them.  

He also said a possible way forward would be rejigging the legislation and rules of the tribunal so a record must be provided within a specific period of time instead of “within a reasonable time”, as is currently the case. He said there should be recourse if that record is not provided, including that the tribunal could press ahead with a hearing without it. 

Another suggestion by Loselo was case management to narrow down the issues in dispute before the appeal is heard.  

Nkele, who has experience as an arbitrator, presided in other tribunals and had litigated in the area of water law, also said the first job in dealing with the backlog would be to ascertain which cases were “still active”. He said he would then manage cases and put in place a timeline “about what needs to be done, when” to ensure the case proceeds to finality. This may require amendment of the tribunal’s rule, he said. 

Nkele said in addition to resolving appeals and applications as quickly as possible, the role of the chairperson would be to raise public awareness about the role of the tribunal.

He said where he came from, in the Eastern Cape, he did not think emerging farmers knew they needed to apply for water licences or permits for the drilling of boreholes.

“But they need water for what they set out to do,” he said.  

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