Court rules against Basarwa’s right to access to water
The long wait for access to a water borehole ended on a depressing note for Basarwa of Central Kalahari Game Reserve (CKGR) after a Lobatse High court dismissed their application.
Justice Lakvinder Singh Walia on Wednesday ruled that the applicants were not entitled to access the borehole at Mothomelo or to drill a new one inside the CKGR.
The ruling follows an eight-year long wait by the Basarwa after the government closed and capped the borehole in 2002. In 2006 the High Court declared illegal and unconstitutional, government’s decision to evict Basarwa from the CKGR. The government have since maintained their stand that should the Basarwa who returned to the CKGR suffer acutely from shortage of water they have only themselves to blame as they have chosen to stay in a place where there is no water.
Ever since the 2006 court ruling Basarwa have been looking to the outcome of this week’s ruling for permission to draw water from the borehole in the reserve.
When passing judgement on Wednesday Justice Walia pointed to Sections 6 and 9 of the Water Act that he said were riddled with inconsistencies that failed the applicants’ efforts. While lawyers representing Basarwa had relied on Section 6 for authority to abstract water without approval, Justice Walia said Section 9 prohibits abstraction without a water right granted under the Act.
“If Section 6 of the Act is construed as contended by the applicants, Section 9 becomes entirely superfluous. On a proper construction of Section 6, the applicants face an immediate difficulty they have not even attempted to overcome. Section 6, even on the interpretation contended for by the applicants does not permit the abstraction of unlimited quantities of water from an unlimited number of boreholes at unidentified locations,” he said.
While Section 6 states that water may be abstracted for domestic use only, depending on the area that the borehole is situated, Justice Walia said there was no prescription regarding the quantities required. He said the applicants did not specify, in the event their application succeeded, the quantity they would extract. “I am therefore being asked to declare that the applicants have the right to abstract water at will, in unlimited quantities from an unspecified number of boreholes. I am clearly prevented by Section 6 (1) (a) of the water Act from doing so. I find therefore that the applicants do not have the right even in their own interpretation of Section 6, to abstract water in excess of the quantities, if any, prescribed in respect of the various areas of the CKGR,” he said.
Justice Walia, however, said although the papers presented in court did not reveal any express refusal on the part of the Government, to allow Basarwa their right to extract water in the CKGR, he considered the Government’s failure to respond within a reasonable period as tacit refusal.
Walia further said in his judgement that the correct interpretation of Section 6 favoured the Government refusal, as the applicants had not been granted water rights under the Act. “The respondent’s refusals or failures referred to in the notice of motion are therefore neither unlawful nor unconstitutional,” he said.
When dismissing the case Justice Walia said the Water Act needed to be reviewed as it had too many inconsistencies. “I ask the respondent to urgently address the ambiguities and inconsistencies in the Water Act so vividly exposed in this case and take such steps as may be necessary to effect the necessary amendments.”
The application was dismissed and each party was ordered to pay its own costs.