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[2021] ZAWCHC 164
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Forestry South Africa v Minister of Human Settlements, Water & Sanitation and Others (19684/2019) [2021] ZAWCHC 164; [2022] 1 All SA 169 (WCC) (23 August 2021)
IN
THE HIGH COURT OF SOUTH AFRICA
[WESTERN CAPE
DIVISION, CAPE TOWN]
Case No:
19684/2019
Before
the Honourable Mr Acting Justice Hockey
Hearing:
15 – 26 February 2021
Judgment
Delivered: 23 August 2021
In
the matter between:
FORESTRY
SOUTH
AFRICA
Applicant
and
MINISTER
OF HUMAN SETTLEMENTS, WATER &
First Respondent
SANITATION
DEPARTMENT
OF HUMAN SETTLEMENTS, WATER
Second Respondent
&
SANITATION
INKOMA
THI-USUTHU CATCHMENT MANAGEMENT
Third Respondent
AGENCY
BREEDE-GOURITS
CATCHMENT MANAGEMENT
AGENCY
Fourth Respondent
THE
CHAIRMAN OF THE WATER TRIBUNAL
Fifth Respondent
JUDGMENT
HOCKEY
AJ:
Introduction
[1]
Afforestation, in
common parlance, is the planting of trees or the establishment of a
forest on land which had not previously been
forested. Section 36 (1)
of the National Water Act No. 36 of 1998 (“the NWA”)
declared, for the first time, the use
of land for afforestation for
commercial purposes as a “
stream
flow reduction activity”.
Section 32 of the NWA, in turn, included a “
stream
flow reduction activity”
as an “
existing
lawful water use
”.
[2]
The reason for the
above is clear. Afforestation uses soil water and groundwater within
a catchment area, thereby reducing the flow
of water which would
otherwise have run into streams and eventually to other users
downstream who are dependent on water
from the catchment area.
[3]
The essence of this
matter revolves around the interpretation of the concept “
existing
lawful water use”
in the context of a “
stream
flow reduction activity”
in relation to the use of land for commercial afforestation purposes.
These concepts are found in section 32 of the NWA, which
warrants
being quoted in full:
“
32.
Definition of existing lawful water use
(1)
An
existing lawful water use means a water use –
(a)
which has taken
place at any time during a period of two years immediately before the
date of commencement of this Act and which
–
(i)
was authorised
by or under any law which was in force immediately before the date of
commencement of this Act;
(ii)
is a stream flow
reduction activity contemplated in section 36(1); or
(iii)
is a controlled
activity in section 37(1); or
(b)
Which has
been declared an existing lawful water use under section 33.
(2)
In the case of –
(a)
a stream flow
reduction activity declared under section 36(1); or
(b)
a controlled
activity declared under section 38;
existing lawful
water use means a water use which has taken place at any time during
a period of two years immediately before the
date of the
declaration.”
[4]
For present
purposes, section 32 must be read with 36 of the NWA which declares
the use of land for afforestation which has been,
or is being
established for commercial purposes is declared to be as a stream
flow reduction activity. What is meant by “
stream
flow reduction activity”
is revealed in section 36(2) which states:
“
The
Minister may, by notice in the Gazette, in relation to a particular
area specified in that notice, declare any activity (including
the
cultivation of any particular crop or other vegetation) to be a
stream flow reduction activity
if
that activity is likely to reduce the availability of water in a
watercourse to the Reserve, to meet international obligations,
or to
other water users significantly.”
(My
underlining).
[5]
A correct
interpretation of section 32 and 36 will determine much of the
disputes between the parties and the outcome of the relief
sought by
the applicant, which is contained in its amended notice of motion as
follows:
“
TO TAKE
NOTICE
THAT
the applicant intends to make application to this Court on
20
NOVEMBER 2019
at 10h00 for the
following relief:
PART A
1.
In respect of both the order for an interim
interdict as set out in Part B and the final relief as set out in
Part C, an order dispensing
with the usual forms and requirements for
service and directing that the applications be heard on an urgent
basis in terms of the
provisions of Rule 6(12) of the Uniform Rules
of Court.
2.
In the event of Part B and/or Part C of this
notice of motion, including the concomitant prayers in respect of
Part B and/or C contained
in Part A being opposed, an order in terms
of which the Honourable Court determines the hearing date(s) of Part
B and/or C and
the dates for the filing of further affidavits and
other steps in respect of the proceedings.
3.
An order that the costs in respect of the
relief sought in Part A, B and C, shall be paid by the respondents
jointly and severally.
4.
Further and/or alternative relief in respect
of Part A, B and C.
PART B
5.
Pending the determination of the final relief
sought in Part C of this notice of motion, a temporary interdict
prohibiting the respondents
from applying a definition of existing
lawful water use in respect of stream flow reduction activities
contemplated in section
36(1) of National Water Act 36 of 1998, (“the
Act”), and section 32(1)(a)(ii) in respect of verification
under section
35 and licence applications under section 41 thereof,
in conflict with the declaratory orders set out in Part C hereunder.
PART C
6.
Review of the administrative actions which underpin the decisions to
which the
following declaratory orders relate, by declaring that:
6.1
An existing lawful water use in respect of a stream flow reduction
activity referred to
in section 32(1)(a)(ii) of the Act, in respect
of the use of land for afforestation which had been or was being
established for
commercial purposes as contemplated in section
36(1)(a) of the Act, is not subject to the requirement of
authorisation “by
or under any law which was in force
immediately before the date of commencement of this Act”, as
provided for in section
32(1)(a)(i) of the Act;
6.1A
In the event of the Honourable Court granting the declaratory relief
claimed in prayer 6.1:
The obligations
and conditions referred to in section 34(1)(a) of the Act do not
limit existing lawful water uses in respect of
stream flow reduction
activities for commercial afforestation to the planting of specific
genera of trees.
6.1B
In the alternative to prayer 6.1, and in the event of the Court
concluding that the Applicant is not entitled
to an order in terms of
prayer 6.1:
Authorisation
under any law as contemplated in section 32(1)(a)(i) in relation to
stream flow reduction activities claimed as existing
lawful water
uses need not be proven in respect of any other legislation save for
the 1984 Forest Act in so far as it is applicable.
6.2
In the process of verifying existing water use as provided for in
section 35 of Act, the
current water use cannot be utilised to reduce
the “existing lawful water use” which had taken
place during the
qualifying period set out in section 32(2) of the
Act;
6.3
In the process of verifying existing water use as provided for in
section 35 of Act,
the application of the “Use-it or Lose-it”
policy position is ultra vires the provisions of the Act, and
cannot
be utilised to reduce the “existing lawful water use”
which had taken place during the qualifying period set out in
section
32(2) of the Act;
6.4
In the process of verifying existing water use as provided for in
section 35 of the Act,
that the interpretation of “use of land
for afforestation which has been or is being established for
commercial
purposes” is not restricted to “trees
in the ground” during the qualifying period;
6.5
In the process of verifying “existing lawful water use”
in respect of stream
flow reduction activities as provided for in
section 35 of the Act, the qualifying period is 1 October 1997 to 30
September 1999;
and
6.6
In respect
of genus of species of trees on
land used for afforestation:
6.6.1
In the event of an order in terms of prayer 6.1 above, being granted:
The genus or
species of trees utilised for commercial afforestation, which
afforestation had been established prior to the commencement
of the
qualifying period or was in the process of being established at any
time
during the qualifying period
,
cannot be taken into consideration to determine the extent of
existing lawful water uses relating to stream flow reduction
activities.
6.6.2
In the event of the Court refusing the relief sought in
Prayers
6.1, 6.1A and/or 6.1B
:
6.6.2A
For the purposes of determining whether the water use was authorised
as contemplated
by section 32(1)(a)(i) of the Act and
the
extent of existing lawful water uses in respect of stream flow
reduction activities in terms of the provisions of the
National Water
Act:
a
)
on a proper interpretation of the 1984
Forest Act, alternatively the 1984 Forest Act and the 1968 Forest Act
as amended in 1972
and of the planting permits issued in terms
thereof, any reference to genera or species of trees in the planting
permits does not
limit such existing lawful water use to such genera
or species;
b)
the genus or species of trees utilised for
commercial afforestation, which afforestation had been established
prior to the commencement
of the qualifying period or was in the
process of being established at any time
during
the qualifying period
, cannot be taken
into consideration.
6.6.2B
The
order as set out in prayer 6.6.2A above will not affect specific
permits containing provisions expressly therein described as
conditions prohibiting genus exchange without written approval from
the relevant authority and shall not
be
regarded as a review of any such permits.
6.6.3
Since the promulgation of the Act, in respect of an application for a
licence in terms of section 41 of the Act
for the water use of
engaging in a stream flow reduction activity, contemplated in section
36(1)(a) of the Act, the responsible
authority has not been entitled
to and is still not entitled to validly impose any condition
prohibiting the exchange of genera,
species or clones of trees in the
absence of regulations prescribing methods for making a volumetric
determination of water to
be ascribed to a stream flow reduction
activity as provided for in section 26(1)(m) of the Act.
6.6.3A
The
order set out in prayer 6.6.3 above will not automatically affect
existing licences containing conditions prohibiting genus
exchange
without written approval from the relevant authority and is not to be
regarded as a review of such licences.
6.6.4
Whenever genera or species of trees used for commercial afforestation
are changed, the respondents are not entitled
to insist, during the
verification process, that the area of land authorised for commercial
afforestation be reduced in extent.
6.6.5
The exchange of genera or species of trees does not constitute a
water use as envisaged in section 21 of the Act
and genera, species,
and clones of trees used for commercial afforestation may be
exchanged without the need for authorisation
in terms of the Act.
7.
To the extent that it might be held that the Applicant is possessed
of a competent
internal remedy/appeal, an order directing and
declaring that the Applicant is exempted, under the provisions of
section 7(2)(c)
of PAJA, from the obligation to first proceed with
the internal remedy of an appeal to the Fifth Respondent under
section 148(1)
of the NWA.”
[6]
As can be gleaned from
the notice of motion, section 35 of the NWA, which provides for the
verification of existing water use also
requires consideration. In
terms of this section, the responsible authority, in order to verify
the lawfulness or extent of an
existing water use, may require a
person claiming entitlement to a water use to apply for verification
of that use. The responsible
authority, in relation to a specific
power or duty in respect of water use is defined in section 1 of the
NWA as meaning –
“
(a)
if that power or duty has been assigned by the Minister to a
catchment management agency, that catchment management agency;
or
(b)
if that power or duty has not been so assigned, the Minister”.
The
relevant portions of section 35 reads as follows:
“
35
Verification
of existing water uses
(1)
The responsible
authority may, in order to verify the lawfulness or extent of an
existing water use, by written notice require any
person claiming an
entitlement to that water use to apply for a verification of that
use.
(2)
…
(3)
A responsible
authority –
(a)
may require the
applicant, at the applicant's expense, to obtain and provide it with
other information, in addition to the information
contained in the
application;
(b)
may conduct its
own investigation into the veracity and lawfulness of the water use
in question;
(c)
may invite
written comments from any person who has an interest in the matter;
and
(d)
must afford the
applicant an opportunity to make representations on any aspect of the
application.
(4)
A responsible
authority may determine the extent and lawfulness of a water use
pursuant to an application under this section, and
such determination
limits the extent of any existing lawful order use contemplated in
section 32(1).
(5)
No person who
has been required to apply for verification under subsection (1) in
respect of an existing lawful water use may exercise
that water use –
(a)
after the
closing date specified in the notice, if that person has not applied
for verification; or
(b)
after the
verification application has been refused, if that person applied for
verification.”
The
parties
[7]
The applicant in
these proceedings is Forestry South Africa, a voluntary association
registered as a non-profit organisation in
terms of the Non-Profit
Organisation Act No.71 of 1977. The applicant was established on 1
January 2002 as a result of the unification
of three bodies which
represented timber growers in South Africa. The applicant represents
93% of all planted afforestation in
South Africa. Its membership
includes corporate forestry companies as well vast numbers of
commercial timber farmers and emerging
small-scale growers. The
applicant represents its members and interacts on behalf of the
timber industry through a host of committees
and bodies within and
outside the timber industry, in order to promote the interests of its
members and those of the industry in
general.
[8]
The first respondent is
the Minister of Human Settlement, Water and Sanitation, (“the
Minister”) who is the Minister
responsible for water affairs in
terms of the NWA. The duties of the Minister include exercising the
powers and duties of the responsible
authority in relation to “water
uses” as per the NWA, where such power had not been assigned to
a catchment management
agency. In terms of section 3 of the
NWA, the National Government as the public trustee of the nation’s
water resources
acts through the Minister who must ensure that water
is protected, used, developed, conserved, managed and controlled in a
sustainable
and equitable manner for the benefit of all persons and
in accordance with its constitutional mandate. The Minister is
ultimately
responsible to ensure that water is allocated equitably
and used beneficially in the public interest, while promoting
environmental
values. The Minister has the power to regulate the use,
flow and control of all water in the Republic in terms of section
3(3)
of the NWA.
[9]
The second respondent
is the Department of Human Settlement, Water and Sanitation (“the
Department”), whose officials
have delegated powers to act on
behalf of the Minister, or the Department whose powers
include the verification of
existing water uses. Where I refer to
“the Department”, it includes any department (under a
different name) which was
previously responsible for the country’s
water resources.
[10]
The third and fourth
respondents are responsible authorities as defined in section 1 of
the NWA. They have powers or duties assigned
to them by the Minster
in terms of section 63 of the NWA, or by the Department under section
75.
[11]
The fifth respondent is
the chairperson of the Water Tribunal established in terms of section
146 of the NWA whose duties include
the hearing of appeals against
any decisions of a responsible authority on the verification of a
water use under section 35 by
a person affected thereby. One of the
preliminary points raised by the respondents is that the applicant
and/or its members adversely
affected by decisions of a responsible
authority should have exhausted internal remedies, by referring those
decisions to the Water
Tribunal chaired by the fifth respondent.
The
history of litigation in this matter
[12]
This application was
launched on 6 November 2019 when the applicant requested temporary
relief against the respondents to interdict
them from making
determinations under section 35(4) of the NWA in respect of the
extent and lawfulness of a water use.
[13]
The respondents, via
the state attorney, filed a notice to oppose the entire application,
but on 20 November 2019, when the matter
came before Savage J, the
parties agreed to an order (“the first court order”) in
terms of which a temporary interdict
as requested in the notice of
motion was granted. The matter was postponed to 27 and 28 May 2020
for determination of Part C of
the notice of motion.
[14]
Thereafter it came to
the applicant’s notice that the third respondent continued to
make determinations and issued notices
in terms of section 35(4) of
the NWA against some of the applicant’s members in
contravention of the first court order.
[15]
The applicant wrote to
the state attorney on more than one occasion requesting the
withdrawal of the section 35(4) notices. When
no response was
received, the applicant launched an interlocutory application (“the
first interlocutory application”)
to enforce compliance with
the first court order.
[16]
After first
interlocutory application was launched, the state attorney proposed
that same be withdrawn and indicated that their
clients would
undertake to comply with the first court order and write to officials
of the Department instructing them to strictly
comply with the first
court order. This was not agreed to by the applicant and on the
proposal of the applicant, and by agreement
between the parties, a
second court order was granted on 6 February 2020, (“the second
court order”) in terms of which
the first to fourth respondents
would withdraw all section 35(4) notices which were issued in
contravention of the first court
order.
[17]
Notwithstanding the
second court order and letters from the applicant’s attorney
requesting compliance therewith, the section
35(4) notices which were
issued in contravention of the first court order were not withdrawn.
The applicant also became aware that
the Department had also made
determinations in terms of section 35(4) of the NWA in contravention
of both the first and second
court orders.
[18]
The applicant launched
a second interlocutory application on 12 March 2020 (“the
second interlocutory application”).
The matter was set down for
25 March 2020. On that day the parties agreed to an order (“the
third court order”) in
terms of which (a) the section 35(4)
notices annexed to the second interlocutory application were declared
to be invalid and of
no force and effect, and (b) all section 35(4)
notices in relation to stream flow reduction activities issued
subsequent to the
first court order (after 20 November 2019) were
declared invalid and of no force and effect.
[19]
The question of costs
in respect of both the first and second interlocutory applications
stood over for later determination, as
well as the question of
contempt in respect of the second interlocutory application. In terms
of the third court order, the respondents
were to file opposing
papers to the question of penalties for contempt which they failed to
do and became
ipso
facto
barred from
doing so.
[20]
I must raise at this
juncture, that when this matter came before me, both on 27 October
2020, and thereafter, when the matter was
argued during February
2021, I discussed the question of contempt with the parties and the
applicant agreed not to pursue the question
of penalties for
contempt, but asked this court to consider the question of costs in
respect of the two interlocutory applications,
with a request that
costs for these applications should be granted on a punitive scale. I
agree with counsel for the applicant
that the conduct of the second
and third respondents is such that whatever the outcome of this
matter, they should be held liable
for the costs of the first and
second interlocutory applications on a punitive scale.
[21]
In terms of the first
court order, the respondents were to file answering papers by 21
February 2020, but did so only on 29 April
2020. Due to the late
filing of the answering affidavit, the matter was by agreement again
postponed on 21 May 2020 for hearing
on 27 October 2020.
[22]
The order of 21 May
2020 provided for the applicant to serve and file its amended notice
of motion and supplementary affidavit for
a further declaratory order
in respect of genus exchange by 30 June 2020 and for the respondents
to file opposing papers by 31
July 2020.
[23]
The respondents only
filed their opposing papers on 2 September 2020. This became of no
relevance when the matter came before me
on 27 October 2020, as the
respondents have accepted that the proposed amendments are in order,
and the amendments were accordingly
effected by the order granted by
me on that day.
[24]
In terms of the order
dated 27 October 2020, the matter was postponed for hearing to 15
February 2021, when the matter was argued
over two weeks, from 15
February until 26 February 2021.
[25]
A reason why the matter
was further postponed on 27 October 2020, is that on the eve of the
date of hearing, the applicant brought
an application to further
amend its notice of motion by the addition of prayer 7, requesting
exemption from having to exhaust internal
remedies in terms of
section 7(2)(c) of PAJA in the event of the court finding that such
internal remedy was competent for the
applicant.
[26]
When the matter came
before me on 15 February 2020, there were several matters relating to
the pleadings that needed attention.
These relate to the two contempt
applications, the late filing by the respondents of various
affidavits, and their application
for leave to file a further
answering affidavit to the applicant’s replying affidavit of 17
November 2020. During a discussion
with the parties, I indicated that
given the importance of this matter, it was important to have a full
ventilation of the issues.
Agreeing with the sentiment expressed, the
parties gave no further attention during argument to any of the
condonation applications.
The matter was fully ventilated on the
basis of the record before me.
[27]
It is opportune at this
juncture to mention that during the proceeding in February 2021, the
applicant further amended its notice
of motion, which the respondents
agreed to.
Background
facts to commercial forestry practices in South Africa
[28]
The following
background facts relating to commercial afforestation are set out in
the founding affidavit and are common cause:
[11.1] The
silviculture (the science of growing and cultivation of trees) system
used is that of “
even-aged
” stands, or a clear
felling system as a way to achieve unform growth and regeneration of
trees and allowing for a uniform
harvesting system. The silvicultural
regime can be described as a planned programme implemented during the
life of a stand of trees.
[11.2] Growth
performance in plantations is influenced by the quality of sites, the
species planted and silvicultural management.
The management
interventions include site species matching, soil preparation,
fertilization, weed control, thinning and pruning.
[11.3] The land
available for commercial forestry in South Africa is limited. It is
therefore important to ensure maximum timber
production on available
land, thus reducing the need for more land for this purpose.
[11.4] Rotation,
i.e. the period in years between the establishment of a stand of
timber and harvesting thereof, depend on various
factors but is often
driven by market demands. Rotation can vary from 6 to 14 years for
hardwood, such as eucalyptus trees, whereas
the rotation age for
softwood such as pine species can vary from 14 to 20 and up to 30
years.
[11.5] Hardwood
(eucalyptus) trees may be allowed to coppice (i.e. allowed to regrow
after having been cut down to near ground level)
and then managed for
12 to 20 years. After coppicing, the plantation is normally replanted
and a new rotation process commences.
Pine plantations do not coppice
and are replanted every 20 to 30 years.
[11.6] After
harvesting, there is always some management activity taking place on
the land, such as residue management, weed control,
soil preparation,
pitting and watering. The land lies fallow between harvesting and
replanting – this period varies, depending
on a number of
factors including weather conditions.
[11.7] The above
clearly shows that management of timber plantations is an ongoing
process. After harvesting and before replanting,
it is obvious that
there are no “trees in the ground”, although the land is
still being used for afforestation.
Genus exchange
[29]
An issue to be
determined in this matter is whether the imposition of conditions in
the permits for the planting of trees for commercial
purposes under
the various Forest Acts (which are dealt with below) which were
applicable at various points in the past, were permissible
in the
event of a forester wanting to change from one genus of trees to
another. To put it another way, this court must determine
whether the
imposition of conditions or obligations by the responsible
authorities before the exchange of genus or species of trees
is
invalid and of no force or effect. Another issue which is to be
determined is whether the genus exchange constitute water use
as
contemplated under the NWA and whether the responsible authorities
may insist on a reduction of the extent of land used for
afforestation as a result of genus exchange from a genus with a lower
water consumption to a genus with a higher water consumption
level.
[30]
Genus exchange is a
form of crop rotation in the timber industry whereby eucalyptus, pine
and wattle trees, which are the main genera
of trees used for
commercial afforestation, are rotated on the same piece of land.
[31]
Genus exchange is done
for a number of reasons, including to avoid a decrease in soil
fertility, to control pests and diseases,
to prevent the spread of
alien and invasive species and to meet market requirements. In terms
of the Agricultural Pests Act 36
of 1993, the Department of
Agriculture may require a farmer to destroy crops to prevent the
spread of disease. In the forestry
industry, as an example, the
Department of Agriculture could require pine trees to be destroyed
and replaced with another genus
to prevent the spread of the Sirex
wasp which has a serious impact on pine trees.
[32]
In South Africa, the
genus
Eucalyptus
(eucalyptus trees) comprise 43% of the commercial forestry species.
There are five main species within the genus as well as multiple
other species, hybrids, varieties and clones thereof. They are used
for wood chips, pulp and paper, mining poles, transmission
poles,
building poles, furniture and cellulose (used
inter
alia
for textiles,
clothing, recycling of paper, tissue paper, personal hygiene products
and thickeners in the food industry).
[33]
There are three main
species of genus
Pinus
(pine trees) as well as multiple other species, hybrids, varieties
and clones thereof that are used for commercial forestry. Pine
trees
comprise 49% of commercial forestry in South Africa, and are used for
structural timber, construction, mining poles, veneer,
pulp and
paper, saw logs, woodchips, furniture, pallets, cellulose and cable
drums.
[34]
There is only one
species of wattle tree in South Africa and it comprises of 7% of the
commercial forestry species. Wattle is used
for tannin, wood chips,
adhesives and tannin extracts.
[35]
Internationally, the
demand for timber products has been shifting away from paper which is
used in magazines and newsprint towards
timber-based products like
chemical cellulose (pulp) used in the clothing and textile industry,
pharmaceuticals, food, bio-plastics,
green chemicals and high value
and renewable products. This high value pulp and the multitude of
products manufactured from it,
require as their feedstock, timber
from eucalyptus trees (including their various species, hybrids,
varieties and clones). As timber
growers want to take advantage of
the shifting demands in the market, some of them are systematically
converting their plantations
from pine trees to eucalyptus trees, and
in some instances from eucalyptus to pine trees.
[36]
It is not disputed that
the conversion from pine trees to eucalyptus trees has a number of
important benefits for South Africa.
The shorter rotation years of
eucalyptus as opposed to that of pine trees means larger and more
frequent investments, more employment
is created and higher volumes
of timber are produced. The high value pulp attained from eucalyptus
trees is mostly produced for
export which has a positive benefit to
South Africa’s foreign exchange earnings.
[37]
The respondents do not
dispute the commercial motivation for the genus exchange from pine
trees to eucalyptus trees, but take issue
that such genus exchange
must take place unregulated. Their concern being that it is to the
detriment of ecological sustainability
of the water resource and the
economic benefit of the genus exchange alone should not override the
ecological impacts.
[38]
A critical question,
therefore, is whether genus exchange was permitted without more under
legislation which existed prior to the
relevant provisions of the NWA
coming into effect and whether this position is retained under the
NWA. For this purpose it is necessary
to consider the history of
legislation governing Forestry in South Africa.
The
history of forestry legislation
[39]
Because this matter
concerns the interpretation of an “
existing
water use
” as
defined in section 32 of the NWA, where such a water use is
referenced to an existing lawful water use which “
was
authorised by or under any law which was in force immediately before
the date of commencement of [the NWA]”
,
it is necessary to have regard to a brief history of forestry
legislation in South Africa in addition to whether genus exchange
is
permissible.
[40]
Before 1972, the
establishment of commercial timber plantations did not require any
authorisation from any government department,
and approximately 70%
of all commercial timber plantations did not require any permits or
water use licences in order to be established.
The Forest Act 72 of
1968 (“the 1968 Act”) primarily dealt with the harvesting
of timber plantations.
[41]
The 1968 Act was
amended with effect from 26 May 1972 (“the 1972 amendment”)
by amongst other, the introduction of what
was known as the
Afforestation Permit System (“the APS”) which required
prior written approval to be obtained from
the then Secretary for
Forestry for the planting of trees (excluding fruit or fodder trees)
for commercial or industrial purposes,
on land which had not
previously been afforested (section 4A of the 1972 amendment). These
authorisations were known as “
afforestation
permits
” or
“
planting
permits
” and
did not affect then existing timber plantations, which did not
require to be registered nor did they require any approval.
In terms
of subsection 4A(3), the Secretary could withhold or grant approval
for the planting of trees, and if granted, he could
impose such
conditions as he deemed fit.
[42]
Regulations under the
1968 Act were promulgated on 8 September 1972 which stipulated the
form and procedure for the application
for the planting of trees for
commercial or industrial purposes under section 4A. The
pro
forma
form
contained in the regulations required an applicant to state what
species were to be planted as well as the object of the management
of
the timber plantation.
[43]
Annexure “ABS12”
attached to the respondents’ papers is a typical permit which
was issued in terms of section
4A of the 1968 Act as amended. The
permit specifically records for the area approved for the plantation
to the extent of 320 hectares,
and for the coniferous species to be
“
Broad-leaved
species
”.
Condition 3 of the permit states that the permit was valid for a
period of five years from the date of issue.
[44]
The 1968 Act was
repealed by Forest Act 122 of 1984 (“the 1984 Act”) which
came into effect on 27 March 1986. Section
89 of the 1984 Act falls
under the heading “Repeal of laws, and savings”, and
subsection 89(4) provides that “
anything
done under a power conferred by or in terms of a provision of a law
repealed in subsection (1), is deemed to have been
done under a power
conferred by or in terms of the corresponding provision of this Act”
.
It needs be mentioned that a similar provision was contained in the
1968 Act, namely in section 34 thereof.
[45]
Section 7(1) of the
1984 Act prohibited the use of land (a) which had not previously been
used for the establishment and management
of a commercial timber
plantation; or (b) which had not been used for a period of five years
after the removal, harvesting or destruction
of a commercial timber
crop, for the planting of trees to produce timber for commercial or
industrial purposes without the prior
written approval of the
director general.
[46]
The effect of the 1984
Act, therefore, was to allow for the continuation of the APS in that
no approval under that Act was required
for timber plantation already
in existence at the date of its commencement, or for new commercial
timber plantations that were
being established on land previously
used for commercial forestry provided that such land had not lain
fallow for more than five
years.
[47]
The 1984 Act did not
apply to a vast area of land currently part of the Republic of South
Africa, including the TBVC states where
commercial forestry
activities were already being undertaken.
[48]
Regulations (‘the
1984 Regulations”) were promulgated in terms of section 73 of
the 1984 Act and remained in place,
with subsequent amendments, until
repealed on 29 April 2009, long after the NWA was promulgated.
Importantly, these regulations
were in place during the qualifying
period referred to in the NWA which I will discuss later.
[49]
The 1984 Regulation
principally dealt with state forests, but like the 1968 Regulations,
provided for the procedure for the application
by an owner of land to
apply for the establishment of a commercial timber plantation. The
application form provided for this purpose
is virtually identical to
the application form under the 1968 Act.
[50]
The only other
reference to private commercial timber plantations in the 1984
Regulations is that found in regulation 16 which provided
for data
requirements to be submitted to the Minister by way of a return. Such
data included data as to the different timber species,
the area of
the plantation, the quality of the land, etc.
Forestry
legislation in the TBVC states and self-governing territories
[51]
Due to the policy of
apartheid, the TBVC “states” were created in 1976, 1977,
1979 and 1981, respectively. These “states”
were the
balkanised states of Transkei, Bophuthatswana, Venda and Ciskei which
were granted “independence” by the apartheid
government.
In addition, six “self-governing territories” were
created which remained under the political control
of the South
African government. The TBVC states could and did pass their own
legislation. Laws of the Republic of South Africa
applied to all the
areas and states until amended or repealed by the competent
authority, i.e. either the states themselves or
the legislative
authority of the self-governing territory, depending on whether the
latter had jurisdiction over the relevant matters
or not.
[52]
With the advent of
democracy and with the promulgation of the Constitution of the
Republic, Act 200 of 1993 (“the interim
Constitution”)
which came into force during 1994, the TBVC states and homeland
system were abolished and all these areas
became part of the Republic
of South Africa. Section 229 of the interim Constitution provided
that all laws which were in force
in any area which form part of the
national territory continued to be in force in such areas until they
were repealed or amended.
[53]
Pursuant to section 229
of the interim Constitution, Parliament passed the Forestry Laws
Rationalisation and Amendment Act, Act
51 of 1994 (“the
Rationalisation Act”). The Rationalisation Act amended or
repealed several pieces of legislation which
applied in the TBVC
states and self-governing territories. The main effect of the
amendments was that with effect from 7 December
1994, the 1984 Act
became applicable throughout the Republic of South Africa.
[54]
The Rationalisation Act
amended section 2 of the 1984 Act by deleting subsection (1) thereof
which previously provided that that
Act did not apply in respect of
land contemplated in section 25 of the Black Administration Act, 1927
(Act 38 of 1927) and also
section 21(1) of the Development Trust and
Land Act, 1936 (act 18 of 1936) in terms whereof the self-governing
areas were created.
[55]
As a result of the
provisions in the Rationalisation Act, and with effect from 7
December 1994, the provisions of the 1984 Act became
applicable
throughout the Republic of South Africa. This act was also applicable
during the qualifying period, i.e. a period of
two years before the
commencement of the NWA in terms of section 32 thereof.
[56]
The implications of
what is set out above are that different pieces of legislation may
have to be considered for the determinations
of “
existing
lawful water use
”
as defined in section 32 of the NWA, as the rights in respect of
water use were obtained in such various pieces of legislation
and
carried through under the 1984 Act which became applicable in terms
of the Rationalisation Act. In the light of the nature
of relief
sought in the present matter, it is not necessary to pronounce on the
rights carried through from the different pieces
of legislation which
existed in the TBVC states and the self-governing territories, but
these may become important on a case by
case basis.
Preliminary
Points raised by the respondents.
[57]
The respondents
raised several points
in
limine
. Some of
these were abandoned during the course of the hearing. I only deal
with those with which the respondents persist and do
so not
necessarily in the order in which they were raised in the papers.
The first point
in limine: Lack of locus standi
[58]
In their heads of
argument filed on the eve of the hearing originally scheduled for 27
October 2020, the respondents raised that
the applicant lacks
locus
standi
. This
argument is based on the supposition that the applicant is acting in
its own interest and is therefore relying solely on
section 38(a) of
the Constitution of the Republic of South Africa, 1996 (“the
Constitution”). Counsel for the respondents
place reliance on
decisions of the Constitutional Court in
Giant
Concerts CC v Rinaldo Investments (Pty) Ltd and Others
2013 (3) BCLR 251
(CC) and
Areva
NP Incorporated in France v Eskom Holdings SOC Ltd and Another
2017
(6) SA 621
(CC). In the
Areva
matter, the court
cited with approval the matter of
Giant
Concerts
, and held:
“
[32]
This court held in
Giant
Concerts
that,
‘where a litigant acts solely in his or her own interests,
there is no broad or unqualified capacity to litigate against
illegalities’. We said that ‘(t)he own interest litigant
must therefore demonstrate that his or her interests or potential
interests are directly affected by the unlawfulness sought to be
impugned’.”
[59]
Further, the
respondents’ counsel cites the following extract from
paragraphs 40 of the
Areva
judgment:
“
It
was said in Giant Concerts that the issue of
locust
standi
is separate
from the merits and will usually be dispositive of an own-interest
litigant’s claim. The court went on to say
that –
‘
an
own-interest litigant may be denied standing even though the result
could be that an unlawful decision stands. This is not illogical.
As
the Supreme Court of Appeal pointed out, standing determines solely
whether this particular litigant is entitled to mount the
challenge:
a successful challenge to a public decision can be brought only if
“the right remedy is sought by the right person
in the right
proceedings”.’”
[60]
Respondents’
counsel also relies on the following extract from paragraph 41 of
Giant Concerts
:
“
These
cases make it plain that constitutional own-interest standing is
broader than the traditional common low standing, but that
a litigant
must nevertheless show that his or her rights or interests are
directly affected by the challenged law or conduct. The
authorities
show:
(a)
To establish
own-interests standing under the Constitution a litigant need to show
the same ‘sufficient, personal and direct
interest’ that
the common law requires, but must also show that a contested law or
decision directly affects his or her rights
or interests, or
potential rights or interests.”
[61]
It is so that the
applicant, in its founding affidavit, asserted that it has the
necessary legal standing because the applicant
itself has a
substantial interest in the proper interpretation of the provisions
of the NWA, given its objectives and its responsibilities
to assist
its members who are holders of water use entitlements under the NWA.
This assertion may lead to a conclusion that the
applicant is
litigating in its own interest. However, the applicant further states
in paragraph 21 of its founding affidavit “
that
[it] has the necessary standing to bring this application by virtue
of section 38 of the Constitution for appropriate relief,
including
declaratory orders and associated relief regarding the proper
interpretation of sections 4, 22, 32, 34 and 35 as read
with sections
and 21 and 36 of the [NWA], as it is a party:
21.1 acting in
its own interest;
21.2 acting in
the interest of a group or class of persons;
21.3 acting in
the public interest; and/or
21.4 acting as an
association in the interest of its members;
under
circumstances where a number of fundamental rights are being
infringed or threatened…”.
[62]
The rights which the
applicant alleges are being threatened are noted in the founding
affidavit as; (i) the right to just administrative
action in terms of
section 33 of the Constitution; (ii) the right to property in terms
of section 25(1) of the Constitution (with
the assertion that a water
entitlement under the NWA is property under a legal dispensation
which allows for protection under the
NWA, and in respect of which
holders of such rights may not be arbitrarily and irrationally be
deprived of such rights; (iii) the
right to equality under section
9(1) of the Constitution; (iv) the right to the environment in terms
of section 24(b)(iii) of the
Constitution; and (v) the right to
choose a trade, occupation or profession freely in terms of section
22 of the Constitution.
[63]
Section 38 of the
Constitution brought about a completely new dispensation on
locus
standi
, far beyond
that as was available under the common law. The section provides:
“
Enforcement
of rights
38
Anyone listed in this section has the
right to approach a competent court, alleging that a right in the
Bill of Rights has been
infringed or threatened, and the court may
grant appropriate relief, including a declaration of rights. The
persons who may approach
a court are—
(a)
anyone acting in their own interest;
(b)
anyone acting on behalf of another person
who cannot act in their own name;
(c)
anyone acting as a member of, or in the
interest of, a group or class of persons;
(d)
anyone acting in the public interest; and
(e)
an association acting in the interest of
its members.”
[64]
The judgments of the
Constitutional Court in
Giant
Concerts
and
Areva
are clearly cases
where the parties, whose standings were challenged, acted in their
own interests in terms of section 38(a) of
the Constitution and not
under any of the other grounds listed in that section. In
Areva
,
the court made it clear that WEBSA, the party whose standing was
impugned, was the wrong litigant to challenge the impugned decision
and it was on that basis that it was held not to have standing (at
para 45). The court noted (at para 42):
“
In
the circumstances I conclude that WEBSA had no locus standi to
institute the review proceedings in its own right to have the
award
of the tender to Areva set aside.
It
would have been entitled to do so as an agent of Westinghouse USA
,
but it did not do so. Indeed, it insisted that it instituted those
proceedings in its own name because it had submitted the tender
in
its own right which I have found not to have been the case.”
(my underlining)
[65]
The above is a clear
indication that the Constitutional Court recognised that a party may
act as an agent of another. More specifically,
section 38 of the
Constitution permits an association to act on behalf of its members.
This was the case in
Polokwane
Local and Long Distance Taxi Association v Limpopo Permissions Board
and Others
(490)/2016)
[2017] ZACSA 44 (30 March 2017), where a taxi association acted on
behalf of its members alleging that their members’
constitutional rights to freedom of association has been infringed or
threatened. The court held that “
[i]n
terms of these provisions [i.e. section 38 of the Constitution] an
association acting in the interest of its members has the
right to
approach a competent court, alleging that a right in the Bill of
Rights has been infringed or threatened, and the court
may then grant
appropriate relief.”
[66]
This is clearly not a
case akin to that of
Giant
Concerts
where the
court held (at para 55):
“
The
inference that Giant was merely toying with process, or seeking to
thwart a propitious public development because it had been
made
available to someone else, is therefore one the Court is entitled to
draw. The consequence is that Giant lacks standing, since
its
interests remains incipient and has never become direct or
substantial.”
In the present
matter, in my view, the applicant, as a role player in the forestry
industry where it has a substantial membership,
not only has a real
and substantial interest in its own right, but is also acting in the
public interest and in the interest of
its members. Sections 38(d)
and (e) of the Constitution therefore find application.
[67]
There are further
reasons raised by the applicant why the respondents’ attack on
the applicant’s standing should fail,
but I find it unnecessary
to deal with them. The reasons dealt with above sufficiently show
that the attack on standing is without
merit and falls to be
dismissed.
The
second point in limine: Failure to exhaust internal remedies.
[68]
The relief sought by
the applicant is pursuant to section 6(1) of the Promotion of
Administrative Justice Act No. 3 of 2000 (“PAJA”),
read
with sections 8(1)(b), (d) and (e) of that Act, and sections 9, 22,
24(b)(iii), 25(1) and 33 of the Constitution.
[69]
In terms of section
6(1) of PAJA, any person may institute proceedings in a court or a
tribunal for the judicial review of an administrative
action. In
terms of section 7(2), however:
“
(a)
Subject to paragraph (c), no court or tribunal shall review an
administrative action in terms of this Act unless any internal
remedy
provided for in any other law has first been exhausted.
(b)
Subject to paragraph (c), a court or tribunal must, if it is not
satisfied that any internal remedy referred to in paragraph
(a) has
been exhausted, direct that the person concerned must first exhaust
such remedy before instituting proceedings in a court
or tribunal for
judicial review in terms of this Act.
(c) A court or
tribunal may, in exceptional circumstances and on application by the
person concerned, exempt such person from the
obligation to exhaust
any internal remedy if the court or tribunal deems it in the interest
of justice.”
[70]
In
Nichol
and Another v Registrar of Pension Funds and Others
2008 (1) SA 383
(SCA), the court dealt with section 7 of PAJA and
held (at para 15):
“
Under
the common law, the mere existence of an internal remedy was not, by
itself, sufficient to defer access to the judicial review
until the
remedy had been exhausted. Judicial review would in general only be
deferred where the relevant statutory or contractual
provision,
properly construed, required that the internal remedies first be
exhausted. However, as is pointed out by Iain Currie
and Jonathan
Klaaren, ‘by imposing a strict duty to exhaust domestic
remedies, [PAJA] has considerably reformed the common
law’.
It
is now compulsory for the aggrieved party in all cases to exhaust the
relevant internal remedies unless exempted from doing so
by way of a
successful application under s 7(2)(c). Moreover, the person seeking
exemption must satisfy the court of two matters:
first, that there
are exceptional circumstances, and second, that it is in the
interests of justice that the exemption be given.
”
(Own emphasis)
[71]
There is no definition
of “
exceptional
circumstances”
in
PAJA, but it is trite that it must be circumstances which are out of
the ordinary. What constitutes exceptional circumstances
must be
determined on a case by case basis. In
Koyabe
& Others V Minister for Home Affairs & Others (Lawyers for
Human Rights as Amicus Curiae
2010 (4) SA 327
(CC), it was held (at para 39):
“
What
constitutes exceptional circumstances depends on the facts and
circumstances of the case and the nature of the administrative
action
at issue. Thus, where an internal remedy would not be effective
and/or where its pursuit would be futile, a court may permit
a
litigant to approach the court directly. So too where an internal
appellate tribunal has developed a rigid policy which renders
exhaustion futile.”
[72]
In
Koyabe
,
the court stressed (at para 35) the importance of the exhaustion of
internal remedies and held that “…
[they]
are designed to provide immediate and cost- effective relief, giving
the executive the opportunity to utilise its own mechanisms,
rectifying irregularities first, before aggrieved parties resort to
litigation. Although courts play a vital role in providing
litigants
with access to justice, the importance of more readily available and
cost effective internal remedies cannot be gainsaid.”
[73]
The court, however,
cautioned against a rigid imposition of the requirement to exhaust
internal remedies and had this to say (at
para 38):
“
The
duty to exhaust internal remedies is therefore a valuable and
necessary requirement in our law. However, that requirement should
not be rigidly imposed. Nor should it be used by administrators to
frustrate the efforts of any aggrieved person or to shield the
administrative process from judicial scrutiny. PAJA recognises this
need for flexibility, acknowledging in s 7(2)(c) that exceptional
circumstances may require that a court condone non-exhaustion of the
internal process and proceed with judicial review nonetheless.
Under
s 7(2) of PAJA, the requirement that an individual exhaust internal
remedies is therefore not absolute.”
[74]
In
Nichol
,
the court held (at para 18):
“
As
‘exceptional circumstances’ which might justify an
exemption in terms of s 7(2)(c) would exist where the available
internal remedy would not be able to provide the applicant with
effective redress for his or her complaint, it is necessary to
examine more closely the nature of the internal remedy provided for
in the FSB Act.”
In the present
matter, the internal remedy is provided for in section 148 of
the NWA. The relevant provision for present
purposes is found in
section 148(1)(e) which provided for an appeal to the Water Tribunal
“
against a decision of a responsible authority on the
verification of a water use under section 35 by a person affected
thereby”.
[75]
A question which arises
is whether the applicant is indeed an affected person as referred to
in section 148(1)(e). I think not.
In this regard, I agree with the
conclusion reached by Rogers J in
WWF
South Africa v Minister of Agriculture, Forestry and Fisheries and
Others
2019 (2) SA
403
(WCC) where it was held, (at para 69) in relation to the meaning
of “
an
affected person
”
in that case:
“
In
kindred settings this expression is one which has to be taken to
connote a proximate rather than a remote adverse effect on the
person
(Wilson v Zondi
1967 (4) SA 713
(N) at 718A–C; Workmen’s
Compensation Commissioner v Crawford and Another
1987 (1) SA 296
(A)
… at 305 F-I and cases there cited). If WWF were an ‘affected
person’, anyone would be entitled to exercise
the right of
appeal in s 80 since in a general sense a TAC determination always
implicates the environmental rights of the public
at large. Such a
wide reading, which would render the word ‘affected’
superfluous, could not have been the lawmaker's
intention.”
[76]
In the
WWF
matter, the Rogers J, as a result of his finding that WWF was not an
“
affected
person”
,
found it unnecessary to consider the question of exemption under
section 7(2) of PAJA, but held nevertheless that he would probably
have granted it in the circumstances of that case.
[77]
In the present matter,
an application for exemption has been filed, albeit belatedly and
only after the issue of the exhaustion
of internal remedies was
raised as a point
in
limine.
Counsel for
the applicant raised several reasons why the applicant should not be
non-suited on the basis that those of its members
that have been
affected by section 35(4) notices issued to them should first have
exhausted the internal remedies provided for
in section 148(1)(e). I
do not agree with all the reasons proffered by counsel for the
applicant, and mention only those with which
I agree;
[34.1]
The applicant relied on
the provisions of PAJA to bring the application as it has itself a
substantial interest in the proper interpretation
of provisions of
the NWA, which is the central issue to be determined in the matter.
[34.2]
The fifth respondent is
not a court of law and does not deliver binding precedent. The High
Court is better suited to deal with
disputes on the application of
law as opposed to the fifth respondent which is well suited to deal
with administrative disputes.
[34.3]
In any event, any
determination by the fifth respondent on a question of law is subject
to appeal to the High Court, which is the
pre-eminent forum to deal
with the interpretation of the NWA. The expedited determination of
the key issues of interpretation of
the NWA by the High Court is in
the public interest and in the interest of justice.
[78]
What I also find
instructive for the conclusion I reach on this issue, is that the
case brought by the applicant is different from
a case that would be
brought by a single affected party directly affected by a section
35(4) notice issued to it. Should the applicant
be non-suited, it
would result in a multitude of cases being referred to the Water
Tribunal, whereas the outcome of the present
matter could possibly
avoid such situation. As had been held in
Earthlife
Africa (Cape Town) v Director General: Department of Environmental
Affairs and Tourism and Another
[2005] ZAWCHC 7
;
2005
(3) SA 156
(C), (para52) where there were more than 70 appeals
pending before the applicable Minister against a decision of the
Director General,
that should the review before the High Court be
allowed to proceed and be successful, the 70 appeals would fall away,
because the
decision against which they had been directed would have
been overturned. The court held:
“
This
case is different from the ordinary one contemplated by s 7(2)(a) of
PAJA, where a balance has to be struck between a single
applicant's
internal remedy, on the one hand, and judicial review, on the other.
The balance that has to be struck in this case
is between a single
applicant’s limited review, on the one hand, and more than 70
complicated appeals. It is, in other words,
an exceptional case in
which the interest of justice dictate that the court should allow the
review to proceed.”
[79]
For these reasons, I
would have granted prayer 7 of the notice of motion exempting the
applicant under provision of section 7(2)(c)
of PAJA from the
obligation to first exhaust internal the remedy of an appeal to the
fifth respondent, if it was necessary.
Third
point in limine: Whether declaratory relief is appropriate.
[80]
A declaratory order has
been described in
Rail
Commuters’ Action Group v Transnet Ltd t/a Metrorail
and Others
[2004] ZACC 20
;
2005 (2) SA 359
(CC) as “
a
flexible remedy which can assist in clarifying legal and
constitutional obligations in a manner which promotes of our
Constitution
and its values.”
[81]
It must be noted, also,
that declaratory relief is a discretionary remedy. This was confirmed
by the Constitutional Court in
JT
Publishing (Pty) Ltd and Another v Minister of Safety and Security
and Others
[1996] ZACC 23
;
1997 (3)
SA 514
(CC), where it was held (at para 15):
“…
a
declaratory order is a discretionary remedy, in the sense that the
claim lodged by an interested party for such an order does
not in
itself oblige the Court handling the matter to respond to the
question which it poses, even when that looks like being capable
of a
ready answer. A corollary is the judicial policy governing the
discretion thus vested in the Courts, a well established and
uniformly observed policy which directs them not to exercise it in
favour of deciding points that are merely abstract, academic
or
hypothetical ones. I see no reason why this new Court of ours should
not adhere in turn to a rule that sounds so sensible. Its
provenance
lies in the intrinsic character and object of the remedy, after all,
rather than some jurisdictional concept peculiar
to the work of the
Supreme Court or otherwise foreign do that performed here. Perhaps,
what is more, a declaratory order on an
issue quite unsuitable for
one does not even amount to ‘appropriate relief’,
…”
(Internal
references removed)
[82]
Declaratory orders can
be granted under section 8(1)(d) of PAJA. Declaration of rights are
also referred to in section 38 and 172(1)(a)
of the Constitution, and
is provided for in
section 21(1)(c)
of the
Superior Courts Act, 2013
.
[83]
Even though there is no
reference to PAJA in the applicant’s notice of motion, counsel
for the applicants made it clear, both
in their heads of argument and
during oral submissions that this application is brought in terms of
PAJA, with reliance on relief
provided for in
section 8(1)(d)
, which
provides:
“
8
Remedies in proceedings for judicial review
(1)
The court or
tribunal, in proceedings for judicial review in terms of
section
6(1)
, may grant any order that is just an equitable, including
orders-
…
(d) declaring the
rights of the parties in respect of any matter to which the
administrative action relates;”
[84]
The reference to
section 6(1)
in
section 8
of PAJA requires the latter section to be
read in conjunction with the former. It provides that “
[a]ny
person may institute proceedings in a court or a tribunal for the
judicial review of an administrative action.”
[85]
PAJA, of course, gives
effect to section 33 of the Constitution. Section 172(1) is
applicable to judicial review proceedings, whether
on the basis of
legality or under PAJA. The section provides:
“
172(1)
When deciding a constitutional matter within its power, a court-
(a)
must declare
that any law or conduct that is inconsistent with the Constitution is
invalid to the extent of its inconsistency; and
(b)
may make an
order that is just and equitable, including-
(i)
an order
limiting the retrospective effect of the declaration of invalidity;
and
(ii)
an order
suspending the declaration of invalidity for any period and on any
conditions, to allow the competent authority to correct
the d
e
fect
.”
[86]
Section 33 of the
Constitution provided that “
[e]veryone
has the right to administrative action that is lawful, reasonable and
procedurally fair”
and
imposes a duty on the State to give effect the rights mentioned under
that section. Such duty was fulfilled by the passing of
PAJA.
[87]
It is trite that the
review of public power is invariably a constitutional matter. This
issue was discussed in the constitutional
court on various occasions,
and it was held in
Bato
Star Fishing (Pty) Ltd v Minister of Environmental Affairs and
Tourism and Others
[2004] ZACC 15
;
2004
(4) SA 490
(CC) thus (at para 22):
“
In
Pharmaceutical
Manufacturers Association of SA and Another: In re Ex Parte President
of the Republic of South Africa and Others
,
the question of the relationship between common-law grounds of review
and the Constitution was considered by this Court. A unanimous
Court
held that under our new constitutional order the control of public
power is always a constitutional matter. There are not
two systems of
law regulating administrative action - the common law and the
Constitution - but only one system of law grounded
in the
Constitution. The Courts’ power to review administrative action
no longer flows directly from the common law but from
PAJA and the
Constitution itself. The groundnorm of administrative law is now to
be found in the first place not in the doctrine
of ultra vires, nor
in the doctrine of parliamentary sovereignty, nor in the common law
itself, but in the principles of our Constitution.
The common law
informs the provisions of PAJA and the Constitution, and derives its
force from the latter.”
(Internal
references removed).
[88]
In Part C of its notice
of motion, the applicant asks for a “
[r]eview
of the administrative actions which underpin the decisions to which
the following declaratory orders relate, by declaring
that:…”.
The various
declaratory relief, some being sought in the alternative follows,
spanning some 5 pages.
[89]
In
Bengwenyama
Minerals (Pty) Ltd and Others v Genorah Resources
(Pty) Ltd and Others
2011 (4) SA 113
(CC), the court held:
“
[84]
It would be conducive to clarity, when making the choice of a just
and equitable remedy in terms of PAJA, to emphasise the
fundamental
constitutional importance of the principle of legality, which
requires invalid administrative action to be declared
unlawful. This
would make it clear that the discretionary choice of a further just
and equitable remedy follows upon that fundamental
finding. The
discretionary choice may not precede the finding of invalidity. The
discipline of this approach will enable courts
to consider whether
the relief which does not give full effect to the finding of
invalidity, is justified in the particular circumstances
of the case
before it. Normally this would arise in the context of third parties
having altered their position on the basis that
the administrative
action was valid and would suffer prejudice if the administrative
action is set aside, but even then the ‘desirability
of
certainty’ needs to be justified against the fundamental
importance of the principle of legality.”
[90]
In
MEC
for Health, Eastern Cape, and Another v Kirkland Investments (Pty)
Ltd t/a Eye Laser Institute
2014 (3) SA 219
(SCA), it was held:
“
[27]
In my view Makaula J [the court a quo] had no jurisdiction to set
aside the approvals granted by Diliza in the absence of either
an
application or counter-application in which that relief was sought.
Section 6(1) of PAJA, not surprisingly, postulates proper
proceedings
having been instituted as a precondition to a court’s exercise
of its power of judicial review when it states
that ‘(a)ny
person may institute proceedings in a court … for the judicial
review of an administrative action’.
In terms of s 8(1), a
court may grant just and equitable relief, including the
setting-aside of an administrative action, ‘in
proceedings for
judicial review in terms of s 6(1)’. Taken together, these
provisions mean no more than that, before a court
may set aside an
administrative action, there must have been proceedings for judicial
review that were brought for that relief,
in exactly the same way
that, before a court may grant an award of damages, there must have
been a claim instituted in accordance
with the proper procedure.”
[91]
The purpose for the
remedies under section 8 of PAJA, in my view, is to correct and/or
reverse an unlawful administrative action.
The remedy must of course
fit the injury, must vindicate the wrong inflicted, and it must be
fair, just and equitable. Without
knowledge of what the wrong
actually complained of is, it is not possible to apply an appropriate
remedy. In
Steenkamp
NO v Provincial Tender Board, Eastern Cape
2007 (3) SA 121
(CC), Moseneke DJP had this to say:
“
[29]
It goes without saying that every improper performance of an
administrative function would implicate the Constitution and entitle
the aggrieved party to appropriate relief. In each case the remedy
must fit the injury. The remedy must be fair to those affected
by it
and yet vindicate effectively the right violated. It must be just an
equitable in the light of the facts, the implicated
constitutional
principles, if any, and the controlling law. It is nonetheless
appropriate to note that ordinarily a breach of administrative
justice attracts public-law remedies and not private-law remedies.
The purpose of a public law remedy is to pre-empt or correct
or
reverse an improper administrative function. In some instances the
remedy takes the form of an order to make or not to make
a particular
decision or an order declaring rights or an injunction to furnish
reasons for an adverse decision. Ultimately the
purpose of a public
remedy is to afford the prejudiced party administrative justice, to
advance efficient and effective public
administration compelled by
constitutional precepts and at the broader level, to entrench the
rule of law.”
[92]
The position explained
in the preceding paragraphs implies that the court, in the context of
PAJA, cannot consider an appropriate
remedy without knowing what the
wrong is that the remedy is supposed to correct and/or reverse.
[93]
This brings me to the
question whether this court should grant the declaratory relief under
section 21(1)(c)
of the
Superior Courts Act. It
provides:
“
Persons
over whom and matters in relation to which Divisions have
jurisdiction
21.
(1) A
Division has jurisdiction over all persons residing in or being in,
and in relation to all causes arising and all offences
triable
within, its area of jurisdiction and all other matters of which it
may according to law take cognisance, and has the power
–
…
(c) in its
discretion, and at the instances of any interested person, to enquire
into and determine any existing, future, or contingent
right or
obligation, notwithstanding that such person cannot claim any relief
consequential upon the determination.”
[94]
Unlike the
situation under PAJA, the existence of a dispute between the parties
is not a pre-requisite for the existence of the
power of the Court as
conferred upon it by
section 21(1)(c)
to grant declaratory relief.
What is required under the subsection, though, is that the party
seeking the declaratory relief must
satisfy the Court that that he or
she is a party interested in an “
existing,
future or contingent right or obligation”
.
[95]
In
Cordiant
Trading CC v Daimler Chrysler Financial Services (Pty) Ltd
2005
(6) SA 205
, the court dealt with section 19(1)(iii) of the Supreme
Court Act 59 of 1959 which was replaced verbatim by the current
section
21(1)(c). The court confirmed the two-staged approach devised
by Watermeyer JA in
Durban
City Council v Association of Building Societies
1942 AD 27
when
deciding whether or not an order should be granted under section
19(1)(iii). The two-staged enquiry was set out as:
“
First
the Court must be satisfied that the applicant is a person interested
in an ‘existing, future or contingent right or
obligation’,
and then, if satisfied on that point, the Court must decide whether
the case is a proper one for the exercise
of the discretion conferred
on it.”
[96]
The question as to
whether there should be an existing dispute between the parties for a
court to grant declaratory relief was settled
in
Ex
Part Nell
1963 (1)
SA 754
(A). The position adopted in
Ex
Parte Nell
was
discussed in
Minister
of Finance v Oakbay Investments (Pty) Ltd and Others
2018
(3) SA 515
(GP), where the full court held:
“
[61]
Ex Parte Nell
settled the law
regarding the existence of a live dispute as a requirement for the
granting of a declaratory order by abrogating
this requirement.
However,
Ex Parte
Nell
did not render
declaratory orders justified in all cases where there is no live
dispute. This dictum on this requirement in
Ex
Parte Nell
is not
without qualification. There the court went further and stated that
‘… though the absence of a dispute may,
depending on the
circumstances cause the court to refuse to exercise its jurisdiction
in a particular case.’”
[97]
Counsel for the
respondents argued that since the applicant does not have
locus
standi
to have
instituted these proceedings in its own interest, the applicant
cannot have any “existing, future or contingent right
or
obligation”. I have already dealt with the
locus
standi
issue and
held that the applicant indeed have standing to act on behalf of its
members in terms of section 38(e). This finding,
however, only
relates to the applicant’s capacity to institute proceedings
and does not that imply that the applicant would
be entitled to the
relief sought. The competency of the relief claimed and the
applicant’s entitlement to the relief are
separate issues.
[98]
In
Giant
Concerts
, the court
quoted (at para 32) with approval the following from Hoexter
Administrative Law
in South Africa
(2
nd
ed) (Juta & Co, Cape Town) at 488:
“
The
issue of standing is divorced from the substance of the case. It is
therefore a question to be decided
in
limine
[at the
outset], before the merits are considered.”
[99]
In
Giant
Concerts
, the court
held (at para 35) that “
where
a litigant acts solely in his or her own interest, there is no broad
or unqualified capacity to litigate against illegalities.
Something
much more must be shown
.”
The court held further (at para 55) that the appellant, as an
own-interest litigant, lacked standing, “
since
its interest remains incipient and has never become direct or
substantial.”
(at
para 55). The court, however, did distinguish between own interest
litigants and those that litigate under section 38(b) to
(e) of the
Constitution, and noted (at para 42):
“
It
should be noted that the own-interest provision in section 38(a) is
not isolated - it stands alongside section 38(b) –
(e). These
provisions create scope for public interest, surrogate,
representative and associational challenge to illegality. The
risk
that an unlawful decision could stand because an own-interest
litigant cannot establish standing is diminished by the fact
that
broad categories of other litigants, not acting in their own
interest, are entitled to bring a challenge.”
[100]
Section 38 of the
Constitution entitles anyone listed in that section to approach a
competent court for relief, including a declaration
of rights on an
allegation that a right in the Bill of Rights has been infringed or
threatened. Furthermore, section 21(1)(c) vests
the courts with a
discretion to grant a declaration of rights where it would constitute
appropriate relief. Before granting such
relief, a court must take in
consideration all the relevant circumstances, as stated by O’Regan
J in paragraph 107 in
Rail
Commuters:
“
It
is quite clear that before it makes a declaratory order a court must
consider all the relevant circumstances. A declaratory order
is a
flexible remedy which can assist in clarifying legal and
constitutional obligations in a manner which promotes the protection
and enforcement of our Constitution and its values. Declaratory
orders, of course, may be accompanied by other forms of relief,
such
as mandatory or prohibitory orders, but they may also stand on their
own. In considering whether it is desirable to order
mandatory or
prohibitory relief in addition to the declarator, a court will
consider all the relevant circumstances.”
[101]
In the present matter,
the declaratory orders sought by the applicants concerns the ongoing
process of interpreting of provisions
of the NWA on the part of the
respondents and does not relate only to matter of the past. The
relief sought has a real and substantial
impact on the applicant and
its members. The point
in
limine
relating to
the appropriateness of declaratory relief must fail.
Fourth
point in limine: Whether the applicant should have instituted review
proceedings in terms of PAJA.
[102]
Counsel for the
respondent argue that the applicant has clothed a review application
in an application for a declaratory order.
This argument is based on
the assertion that the applicant had conceded that the decision
relating to the imposition of conditions
and obligations relating to
genus exchange under the relevant statutes constitute administrative
action under PAJA. Furthermore
the argument is based on the dictum in
Bato Star
that
“
the cause of
action for the judicial review of administrative action now
ordinarily arises from PAJA, not from the common law as
in the past.”
[103]
The applicant indeed
conceded that the decisions of the respondents constitute
administrative action which are reviewable under
PAJA, and correctly
contend that declaratory relief can be granted if reviewed in terms
of section 8(1)(d) of PAJA.
[104]
A consideration of the
prayers in the Notice of Motion clearly indicate that what the
applicant is challenging in the present proceedings
is the alleged
incorrect interpretation of provisions of the NWA by the respondents,
in particular the interpretation of “
streamflow
reduction activity
”
as defined in section 32 read with sections 21(d) and 36(1) of the
NWA.
[105]
I agree with counsel
for the applicant that this application is a declarator for the
correct interpretation of provisions of the
NWA as borne out by the
prayers set out in the notice of motion. As for the decisions already
made by the first to fourth respondents
in relations to permit
conditions and genus exchange, I agree that the members of the
applicant will have to bring applications
for review, if they so
wish, with of course, applications for condonations, where required,
in the event that the declaratory orders
sought are granted.
Fifth
point in limine: Collateral challenge is inappropriate
[106]
Counsel for the
respondents argued that it is clear that the applicant had taken a
view that the responsible forestry authorities,
by imposing
conditions relating to genus exchange, acted ultra vires and that the
applicant therefore raises a collateral challenge
which is bad in law
in the circumstances.
[107]
It is a general rule
that an administrative act, even if irregular, stands until set aside
by a court of law. If, however, a public
authority tries to enforce
an administrative act, a defence known as “
a
collateral challenge
”
may be raised challenging the irregular administrative action. A
collateral challenge was described in
Oudekraal
Estates (Pty) Ltd v City of Cape Town and Others
2004
(6) SA 222
(SCA) as follows (at para 32):
“
it
is in those cases - where the subject is sought to be coerced by a
public authority into compliance with an unlawful administrative
act
- that the subject may be entitled to ignore the unlawful act with
impunity and justify his conduct by raising what has come
to be known
as a ‘defensive’ or a ‘collateral challenge’
to the validity of the administrative act.”
Further, (at para
35) it was stated:
“
It
will generally avail to a person to mount a collateral challenge to
the validity of an administrative act where he is threatened
by a
public authority with coercive action precisely because the legal
force of the coercive action will most often depend upon
the legal
validity of the administrative act in question. A collateral
challenge to the validity of the administrative act will
be
available, in other words, only ‘if the right remedy is sought
by the right person in the right proceedings’. Whether
or not
it is the right remedy in any particular proceedings will be
determined by the proper construction of the relevant statutory
instrument in the context of principles of the rule of law.”
[108]
It is argued on behalf
of the respondents that this is not a case where the “
right
remedy is sought by the right party in the right proceedings”.
In the present proceedings, however, it is not so that the forestry
authorities are seeking to coerce the applicant or any subject
to
comply with an unlawful administrative act.
[109]
From the prayers sought
in the notice of motion, it is clear that the applicant is not
reviewing planting permits issued under any
of the repealed Forestry
Acts, or any license issued in respect of streamflow reduction
activities under the NWA. On the
contrary, the applicant is
challenging an alleged incorrect interpretation of “
existing
lawful water use
”
in respect of “
streamflow
reduction activity
”
as defined in section 32(1)(a)(ii) read with section 32(2)(a) and
section 36(1) of the NWA. The dispute also concerns the
correct
interpretation and application of section 34, which deals with the
authority to continue with existing lawful water use.
The applicant
is not seeking to nullify any administrative decisions already taken,
but instead contend that it would be up to
individual foresters who
hold licences granted in terms of the NWA to review license
conditions imposed in respect of genus exchange
if they wish to do
so.
Sixth
point in limine: Dispute of fact
[110]
Counsel for the
respondents contend that the applicant ought to have made an
application
in
limine
for the
hearing of oral evidence on a material dispute of fact pertaining to
the method used to estimate genus exchange ratios
which dispute
cannot be resolved on affidavit. The gist of this argument is the
dispute around the extent of water used by different
species of
trees, and consequently the effect of the streamflow reduction on the
water source cannot be resolved on affidavit.
[111]
It is so that the
applicant contends that the method used by the respondents to
determine the effect of streamflow reduction by
genus exchange is
fundamentally flawed. The respondents contend that the “
best
available information”
should
be used to determine the difference in water used by various species
and resultant conditions imposed following genus exchange
are
reasonable, whereas the applicant contends that such conditions in
the circumstances are unreasonable, disproportionate and
irrational.
[112]
The applicant, however,
contends that the disputes of fact are not germane to the
interpretation of the NWA which lies at the heart
of this matter.
What is clear from the evidence on record is that there is indeed a
factual dispute about the determination of
genus exchange ratios and
whether the water use of the natural vegetation (which would have
been present before a plantation has
been planted) should be
discounted. This, the applicant contends, is only relevant, firstly
in determining whether it is reasonable,
rational and proportional
for the Department to impose conditions relating to genus exchange in
respect of new licences and secondly
whether the impact of genus
exchange is significant and whether it should be taken
into consideration as an “
other
measure
” as
referred to in section 27 of the Constitution, which provides for the
state to take reasonable legislative and other
measures within its
available resources to achieve the progressive realisation of rights
pertaining to heath care, food, water and
social security.
[113]
To the extent that the
respondents rely on the fact that the parties rely on different
expert opinions which differ, the critical
issues in this matter
remain issues of legislative interpretation. It is trite that it is
the function of the courts to interpret
statutory provisions. In
International
Business Machines SA (Pty) Ltd v Commissioner for Customs and Excise
1985 (4) 852 (A) it
was held (at 874 A – C):
“
Under
our system, questions of interpretation of documents are matters of
law, and belong exclusively to the Court. On such questions
the
opinions of witnesses, however eminent or highly qualified, are
(except in regard to words which have a special or technical
meaning)
inadmissible. (See Phipson on Evidence, 13th ed., sec 27 – 46).
So, subject to the exception mentioned the Courts
do not receive
opinion evidence, either as for the meaning of statutory provision…
or any other document.”
[114]
When it comes to the
interpretation of legislative provisions, the starting point is the
words used by having regard to their language,
their context and the
purpose to which they are directed. Facts are irrelevant. As held in
the Constitutional Court in
President
of the Republic of South Africa v Democratic Alliance and Others
2020
(1) SA 428
(CC) (at para 54), “
[f]acts
play no role in an interpretation of a rule or legislation for that
matter. If this were to be so, provision in legislation
would carry
different meanings depending on the facts of specific cases.”
[115]
I will deal, to the
extent necessary, with the dispute of fact, and remain mindful of the
point
in limine
raised. At the outset, however, it is my view that since this matter
principally concerns legislative interpretation, it is not
necessary
to refer any aspect to oral evidence.
Background
facts that occurred after the NWA came into operation
[116]
Shortly after the
NWA came into operation, during November 1999, the Department
published a document titled “
Water-Use
Licensing: The Policy and Procedures for Licensing Stream Flow
Reduction Activities
”.
In the introductory and background clause of the document, it is
stated:
“
This
document sets out the policy and procedure for the licensing of land
use that reduces stream flow. It consolidates current
policy and
practice while taking account of the requirements of the NWA. The
approach adopted is based on the fact that within
any one water
management area as defined in the Act, SFRAs [stream flow reduction
activities] are among several kinds of water
use that must be treated
fairly in the process of allocating and licensing water use.”
[117]
The Department contends
that this is not a policy document
per
se
, but rather a
guide. Whatever the status of the document, counsel for the applicant
point out certain relevant statements contained
and issues dealt with
therein.
[108.1]
The document refers to
N
ä
nni
who first estimated stream flow reduction activities in 1970. It was
estimated “
for
annual flows only, based upon an agreed formula derived from
experimental catchment results in South Africa, and with parameters
set logically for variations in annual rainfall”
.
These estimations for average water use were based on one species of
pine and one species of eucalyptus only and is known as the
N
ä
nni
curves. The N
ä
nni
curves were modified in 1982 by Van der Zel, and again in 1997 by
Scott and Smith. According to the applicant, the latter modification,
was clearly because the verification process of existing water uses
provided for in section 35 of the NWA would commence shortly
thereafter.
[108.2]
It was stated that the
methods for the estimation of stream flow reductions for plantation
forestry “
will
need to be based upon sound scientific information and established
through consultation with stakeholders
”.
[108.3]
It is stated that
“
[t]he
Minister will prescribe such methods in terms of Section 26(1)(m) in
the NWA. However the methods will be constantly reviewed
with the
intention of making improvements whenever necessary and possible.
Improved methods of estimating SFRA impacts may
result in
changes to the estimates of water use ascribed to SFRAs. How these
changes will be administered is an issue that that
will need
attention.”
[108.4]
The document records,
in clause 1.3 thereof, that “
[t]he
Act provides for the Minister to prescribe by regulation the methods
of calculating stream flow reduction (section 26(1)(m)).
This will
require an agreed scientific basis for these methods, through the
required consultations.”
[108.5]
Plantations managed for
local use and local trade such as woodlots, are included in the
definition of plantations.
[108.6]
Timber plantations
smaller than 10 hectares would be dealt with differently.
[118]
In addition to the
above, it is of interest to note that at page 20 of the document it
is recognised, in respect of the new legal
regime brought about by
the “
new
regime for SFRAs”
(under
the NWA):
“
1.
all lawful plantation forests in existence within 24 months prior to
the date of commencement of the Act are defined as existing
lawful
water uses (section 32 of the NWA); this means that all plantation
forests will be properly authorised as lawful water uses
and [do] not
required a licence until the responsible authority, i.e. the Minister
or a person or agency to whom authority has
been delegated, requires
the person entitled to this use of water to apply for a licence
2. forest owners
will be required to register their water uses (Section 34(2) of the
NWA), subject to appropriate regulations; this
will enable DWAF to
estimate current levels of water use, and to calculate water use
charges
3. applications
for new SFRAs will be handled according to the procedures set out in
this document, updated from time to time and
established in
regulations where necessary
4.
the Minister will require forest owners to apply for licences
(Section 43(1) of the NWA).”
[119]
The regulations
requiring that a water use be registered, known as the Water Use
Registration Regulations were published and came
into effect on 12
November 1999. These regulations provided that any person who uses
water in terms of section 21 of the NWA must
register such use on a
form obtained from the Department and must submit the completed form
to the responsible authority when requested
to do so. The form
required applicants to indicate what species were planted but there
was no indication that the species and their
extent were in relation
to what were planted during the qualifying period.
[120]
During 2002, a document
titled “
Estimation
of Streamflow Reduction Resulting from Commercial Afforestation in
South Africa”
referred
to as the 2002 Gush Report was published by the Water Research
Commission (“the WRC”), an entity of the Department.
The
document was the result of a project undertaken by a team of forest
hydrologists and catchment modellers, including Gush and
Jewitt, both
of whom are experts in the field of hydrology. The report contains
national streamflow reduction tables caused by
afforestation at
Quaternary Catchment (“QC”) scale (“the 2002 Gush
Tables”). A catchment area can be described
as a drainage basin
or a typographically represented area within which surface water
flows to a common outlet. Quaternary catchments
are fairly large
heterogenous typographical units within which terrain can be very
different. A quinary catchment is a smaller
typographical unit, but
still fairly large.
[121]
The Department used the
2002 Gush Report as “
the
best available information”
on the water use of different genera at quaternary catchment level
for years.
[122]
The Department made it
clear that it was using the 2002 Gush Tables in email correspondence
with Jewitt on 6 September 2011. This
despite a new report that was
authored by Jewitt, Gush and others published in September 2009 (“the
2009 Jewitt Report”).
This report is based on information
obtained at a quinary level which Jewitt himself calculated.
[123]
Mr Balzer, the Acting
Director General at the time advised the applicant in a letter dated
14 August 2013 that the 2002 Gush Report
was the best available
information on the water use of different genera at quaternary level.
[124]
It bears mention that
the 2009 Jewitt Report referred to above was a study commissioned by
the WRC titled “
Methods
and guidelines for the licensing of SFRA’s with particular
reference to low flows, Jewitt, et.al. (WRC report no 1428/1/09)”
.
It is stated in the report that a key component of the project was
the improvement of the low-flow and stream flow reduction activities
related routines in hydrological modeling systems, to better serve
the needs of the Department and the integration of outputs into
decision-making processes concerning water allocation and licensing
with particular emphasis on stream flow reduction activities
and low
flows (i.e. during dry seasons).
[125]
According to Mr Mbulelo
Tshangana, the Director General of the Department who deposed to
affidavits on behalf of the respondents,
the 2009 Jewitt Report was
an improvement on the 2002 Gush Tables. He admits that both reports
have information only on water use
for one species per
genera
.
[126]
Part of the objectives
of the 2009 Jewitt Report was to develop a computer program (“the
SFRA Assessment Utility”) which
according the Mr Tshangana is
much more refined and site specific than the 2002 Gush Tables.
[127]
The letter from Balzer
dated 14 August 2013 was a belated response to a letter sent to the
department on behalf of the applicant
dated 13 December 2011. In the
letter, Dr Scotcher who is the author thereof on behalf of the
applicant raises a number of issues,
inter
alia
issues that
revolve around genus exchange and the application of section 27(1) of
the NWA. Scotcher referred to matters that have
been debated with
officials of the Department, and in particular a legal opinion within
the Department that states that “
replanting
of, …, a felled pine plantation compartment with eucalyptus
trees, is not permitted unless authorised buy an amended
water use
license. Thus, although a land-user might have a water use licence
for, say, 50ha of pine, in order to convert that pine
to eucalyptus,
the land-user is required to apply for an amendment to the existing
water use licence.”
[128]
Scotcher argues in his
letter that genus exchange does not result in a different form of
water use as defined in the NWA. He also
raised that the Department
“
have taken
the view that eucalyptus uses more water than pine, but appear not
take into account the rotation length of eucalyptus
vs pine (i.e. 3
rotations of eucalyptus to rotations of pine over the same period of
time), water use efficiency, timber yields,
pulp yields, economic
benefit, job creation and others. Further, and based on the
Department's use of the Gush tables which are
used for the assessment
of SFRA license applications, DWA is of the opinion that they will
need to be a reduction area planted
when changing from pine to
eucalyptus due to the greater water use attributed to eucalyptus.”
[129]
Against the background
of the many issues raised in the latter, Scotcher requested a meeting
with the Department to refresh their
respective memories on
agreements already reached in previous discussions, and to discuss
the path forward.
[130]
As already stated,
Balzer responded to Scotcher’s letter on 14 August 2013.
Besides stating that the 2002 Gush Report was
the best available
information used by the Department, Balzer confirmed that
afforestation has been regulated since 1972. He
further stated
that:
“
Authorisations
therefore clearly indicate the genus authorised in terms of the
permit or licence and it is therefore regarded as
a condition of the
authorisation, similar to the property where the water
use/afforestation may occur and the extent or hectares
that may be
established. Changing the authorised genus therefore constituted a
change in the permit or license conditions.”
[131]
Balzer made it clear
that changing the authorised genus stipulated in the permit or of an
existing lawful water use required the
replacement of the existing
lawful water use by a licence.
[132]
When the draft Genus
Exchange Regulations (“the draft regulations”) were
published for comment on 23 October 2015, it
proposed that
authorisation would be required for genus exchange and that the
Department would make use of best available researched
information to
determine the genus exchange ratio. The draft regulations also
provided for a mechanism where the Department would
be permitted to
amend the authorised genus and hectares of an existing lawful
afforestation use without amending the existing lawful
water
allocation of the use.
[133]
Following submissions
of comments on the draft regulations, various meetings were held
between the Department and various stakeholder
and scientists. At a
workshop held in February 2016, various scientists and officials from
the Department shared an opinion that
one cannot use the water
estimates of only one specimen of pine tree and one specimen of
eucalyptus tree (
Pinus
patula
and
Eucalyptus grandis
– which are still the only species used in the hydrological
model for which water use estimates are available) and that better
information was required. The applicant therefore appointed Gush to
provide and expert scientific opinion and independent advice
on the
draft regulations.
[134]
A workshop was held on
15 July 2016 attended by government officials, various experts and
scientists, members of the applicant and
stakeholders in the forestry
industry to discuss the draft regulations. At the meeting, Gush
demonstrated that the Department had
made a fatal error in their
application of his hydrological models contained in the 2002 Gush
Tables in that they did not take
into account the baseline vegetation
data.
[135]
Gush made his report
(“the 2016 Gush Report”) available to the applicant
during August 2016. This report was, on request,
provided to
Department during the same month. The 2016 Gush Report was reviewed
by Jewitt who responded thereto in an email dated
3 December 2016.
Jewitt utilised data from 7 out of 1946 quaternary catchments in
South Africa and concluded that eucalyptus trees
use between 23% and
45% more water than pine trees. Counsel for the applicant points out
that it appears that Jewitt did not take
the water use that should be
attributed to baseline vegetation into account when making these
calculations.
[136]
On 11 August 2016, a
notice issued in terms of section 35(1) of the NWA was forwarded to a
member of the applicant requiring such
member to apply for the
verification of its water use to confirm the lawfulness and extent
thereof. From this notice it is apparent
that the department adopted
the position that in claiming an “
existing
water use
”,
you had to prove that the timber plantation was planted prior to 1972
(no specific date was given), but any plantation
planted after 1972
required a permit from the relevant authority.
[137]
In a letter to the
applicant dated 14 December 2016, Mr Singh from the Department
confirmed that the genus exchange regulations
were put on hold
“
pending the
review of the CSIR [the Council for Scientific and Industrial
Research] report by SFRA [stream flow reductions activities]
research
specialists.”
Mr Singh added that “
in
the absence of the regulations, genus exchange may only be done if a
specific licence, in its conditions, allows for the exchange”
and “
[f]ailing
this the water user wanting to do genus exchange must contact the DWS
for a licence (this is relevant for pre-72 and permitted
afforestation as per section 34 of the NWA) or the amendment of the
existing National Water Act, 1998 (NWA) licenses.”
[138]
During 2019 the WRC
concluded a further study titled “
Resetting
the baseline land cover second against which streamflow reduction
activities and hydrological impacts of land use change
are assessed,
Toucher et.al. 2019 (WRC K5/2437/1)”
.
This is referred to as the 2019 Toucher Report.
[139]
An overall objective of
the 2019 Toucher Report was to produce a refined and parameterized
baseline land cover against which the
hydrological impacts of various
land uses can be assessed. In the executive summary to the report, it
is stated:
“
The
need for a relatively accurate second baseline, or reference, land
cover became more important what implementation of the [NWA],
as the
NWA requires reference flows for both the determination of the
ecological reserve and the assessment of the impact of specific
land
uses on (especially) low flows. Currently, the South African
Department of Water Affairs (DWA) supports and accepts the use
of
“natural vegetation” in the form of Acocks’(1998)
Veld Types as the reasonable standard or a reference land
cover again
switch to assess land use impacts (Schulze; Jewitt et al., 2009).
[140]
The 2019 Toucher Report
concluded that “
[t]his
project has provided an alternative hydrological baseline in the form
of the SANBI (2012) clusters for which the vegetation
water used
parameters have been derived using a documented, consistent and
repeatable methodology using field based or remotely
sensed data
where possible.”
[141]
The authors of the
Toucher Report recorded that challenges were encountered throughout
the project, but provided a reflection on
the water use of natural
vegetation as the hydrological baseline against which use change are
assessed in Chapter 13 assessment.
The authors recommended future
research for amongst other, further reflection on the use of natural
vegetation as a hydrological
baseline against which land use changes
are assessed.
[142]
Following the 2019
Toucher Report, the Department commissioned further studies, namely
the “
K5/2791 –
Expansion of knowledge on evapotranspiration and stream flow
reduction of different clones/hybrids to improve the
water use
estimates of SFRA species
”,
referred to as “
the
2018 – 2021 Toucher Study
”.
[143]
According to Mr
Tshangana, the aims of the project is described as including to
expand the knowledge of the estimates of water use
of different
clones and hybrids of eucalyptus, wattle and pine species, to expand
the knowledge on the water use of different stand
densities, and to
improve existing tools used for the estimation of the impacts of SFRA
through the inclusion of improved soils
data and baseline land cover
data, as well as the inclusion of the latest process results related
to water use (i.e. evapotranspiration)
of SFRA clones, hybrids and
species.
[144]
Mr Tshangana states
that he does not place any reliance on the 2018 – 2021 Toucher
Study, but refers to it to demonstrate
the extent to which his
department has gone in seeking to improve scientific knowledge
related to afforestation and stream flow
reduction activities in
general. What this indicates, in my view, is that there is
acknowledgment that the current scientific knowledge
being utilised
to estimate the impact of stream flow reduction activities is
inadequate and improved knowledge is necessary for
better
estimations.
[145]
On 20 March 2020, Mr
Singh sent a letter to Sappi, a member of the applicant wherein he
stated that a water licence application
remains a requirement in the
case of genus exchange.
[146]
In a letter to the
applicant dated 25 March 2020, an official of the Department again
confirmed that research was being conducted
on genus exchange, that
the genus exchange regulations have been placed on hold, and that in
the absence of such regulations, the
NWA regulates genus exchange. It
was stated that “
should
a water user desire to change a condition (e.g. the genus) of and
existing use such genus exchange may only be done by approval
of the
Department. if the entitlement is a water use license the exchange
may occur if it's conditions, allows for the exchange.”
[147]
The Department again
confirmed its position on genus exchange in a letter to the applicant
dated 22 June 2020. In this letter, it
was stated that section 34 of
the NWA imposes the requirement for existing lawful water users to
obtain a licence when implementing
genus exchange. The Department
acknowledged that the current water use research is based on single
species assessment, but added
that this “
by
no means confirms that there is currently inadequate scientific basis
for insisting on a reduction in the planted area where
genus exchange
is concerned.”
The
issues to be determined
[148]
As already
alluded to, the crux of this matter concerns the correct
interpretation of various sections of the NWA, importantly what
is
meant by an “e
xisting
water use
”
and a “
stream
flow reduction activity
”
as referred to in section 32 read with section 36. The application
also concerns section 34 dealing with the authority to
continue with
existing lawful water use, and section 35 dealing with the
verification of an existing water use. The qualifying
period as
referred to in section 32 also falls to be determined.
[149]
Also at issue are
several disputes relating to genus exchange that the court is asked
to determine. These are whether the exchange
of genus or species of
trees constitute water use as contemplated in section 21 of the NWA
and whether the exchange of genus or
species and clones of trees can
take place without authorisation.
[150]
As for the application
and issuing of new licences under section 41 of the NWA, the court is
asked to determine whether the responsible
authority is permitted in
terms of the NWA to impose conditions prohibiting the exchange of
genus or species of trees without prior
written authorisation of the
responsible authority and in the absence
of
regulations prescribing methods for making a volumetric determination
of water to be ascribed to a stream flow reduction activity
as
provided for in section 26(1)(m) of the NWA.
[151]
An issue related to
genus exchange is whether the responsible authority is entitled,
during the verification process as contemplated
in section 35, to
insist on the reduction of the extent or area of land used for
commercial afforestation.
[152]
The applicant also
requires this court to disavow the use of policy where the
respondents are superimposing such policy into legislation
and also
where policy is used in relation to decisions or decisions proposed
to be made relating to the verification of stream
flow reduction
activities in respect of lawful water uses, as well as the granting
or refusal of applications for new licences
and the imposition of
conditions.
[153]
Counsel for the
applicant record the following policies which they say are applied to
a lessor or greater extent by the respondents:
“
1.
Current water use must be taken into consideration when determining
existing lawful water use in respect of streamflow reduction
activities.
2. The “Use-it
or Lose-it” policy.
3. Interpreting
section 36(1) as encompassing the consumptive use of water.
4. Interpreting
the Qualifying Period as requiring that there must have been “trees
in the ground”.
5. Applying the
2002 Gush Report (or the 2009 Jewitt report/SFRA Utility) to verify
the extent of stream flow reduction activities
claimed as existing
lawful water uses despite the admitted shortcomings of these reports.
6. Applying the
concept of “other measures” referred to in sections 24(b)
and section 27(2) of the Constitution to the
interpretation of the
NWA.
7. Applying the
precautionary principle and the concept of “best available
information”.
8. Applying a
policy in respect of genus exchange.
9. Applying a
policy that where there is genus exchange from a lower water-using
genus to a higher water-using genus that there
must be a reduction in
planted area.
10. Determining
the volumetric water use for the purposes of verification in terms of
section 35(4) of the NWA and determining genus
exchange ratios at
quinary or quaternary catchment level and not at farm or compartment
level.”
[154]
The respondents rely on
the argument that the Constitution makes provision for the state to
rely on “
other
measures
” in
sections 24(b) and 27(2) thereof to protect or to achieve the
realisation of constitutional rights contains in these
section. The
respondents further argue that the measures so adopted are practical
and informed by the best available information
and are legally
permissible.
[155]
It is correct, as
argued by the respondents, that reasonable measures may be taken in
consideration by the state to achieve constitutional
rights. The test
for such measures is reasonableness, besides it having to be legally
permissible. In The
Government
of the Republic of South Africa and Others v Grootboom and Others
2001 (1) SA 46
(CC), it was held (at para 42):
“
The
state is required to take reasonable legislative and other measures.
Legislative measures by themselves are not likely to constitute
constitutional compliance. Mere legislation is not enough. The
state is obliged to act to achieve the intended result, and
the
legislative measures will invariably have to be supported by
appropriate, well-directed policies and programmes implemented
by the
executive. These policies and programmes must be reasonable both in
their conception and their implementation.”
[156]
Policy, however, cannot
stand if it is in conflict with legislation, and as argued by the
applicant, cannot be superimposed upon
a statute.
[157]
In
Akani
Garden Route (Pty) Ltd v Pinnacle Point Casino (Pty) Ltd
2001(4)
SA 501 (SCA) it was held (at para 7):
“
I
prefer to begin by stating the obvious, namely that laws, regulations
and rules are legislative instruments whereas policy determinations
are not. As a matter of sound government, in order to bind the
public, policy should normally be reflected in such instruments.
Policy
determinations cannot override, amend or be in conflict with laws
(including subordinate legislation). Otherwise the
separation
between legislature and the executive will disappear.”
[158]
I now move on to
consider those policies utilised by the respondents that are
challenged.
The
“Use-it or Lose-it” policy; the qualifying period; and
“the trees in the ground” issue.
[159]
Both the relief
relating to the “
Use-it
or Lose-it
”
policy and that relating to trees in the ground are related to the
qualifying period referred to in section 32(1) of the
NWA. It is apt,
therefore, to first consider the qualifying period. The importance of
a correct determination of the qualifying
period is obvious as the
determination of an existing awful water use depends on it. In terms
of section 32(1)(a);
“
An
existing lawful water use means a water use –
(a)
which has
taken place at any time during a period of two years immediately
before the date of commencement of this Act and which
-
(i)
was
authorised by or under any law which was in force immediately before
the date of commencement of this Act;
(ii)
is a stream flow
reduction activity contemplated in section 36(1); …”
[160]
The applicant contends
that the qualifying period is 1 October 1997 to 30 September 1999,
with reliance on the fact that sections
7, 8 and 9 of the 1984 Forest
Act were only repealed with effect from 1 October 1999. Also, certain
provisions of the NWA only
commenced on 1 October 1999. Section 7(1)
and (2) of the 1984 Act provided that land which was previously used
for commercial timber
plantation which for a period of five years
after removal, harvesting or destruction of the commercial timber
crop, has not been
so used, may not use such land for the planting of
trees for commercial purposes without the prior written approval of
the director-general.
Subsection (2) requires an application to be
made for the establishment of a commercial forest plantation on such
land.
[161]
The provisions of
section 32 in its current form was brought about by an amendment by
Act 45 of 1999 (“the Amendment Act”)
which came into
force on 6 December 1999. What is of importance, is the use of the
words “
this
Act
” and not
“
this section
”
in the amendment.
[162]
The use of the words
“
this Act
”
in section 32(1)(a), in my view is determinative of what the period
referred to is. It can be correlated with section 164
which states
that “
[t]his
is the
National Water Act, 1998
which takes effect on date fixed by
the President by proclamation in the Gazette.
”
The two year period referred to in
section 32(1)(a)
, therefore, can
only be a reference to when the NWA (“
this
Act
”), not a
section of the NWA, commenced.
[163]
The qualifying period
referred to in section 32(1), which is the period for the
verification of an existing lawful water use, therefore,
is the
period between 1 October 1996 and 30 September 1998, as correctly
contended for by the respondents.
[164]
It must be stated that
the qualifying period is not the same period in respect of activities
that are declared under the NWA. In
terms of section 32(2), where
there is a declaration of a streamflow reduction activity under
section 36(1), (as opposed to a determination
of an existing lawful
water use) or of a controlled activity under section 38, for such
existing lawful water uses, the qualifying
period is the period of
two years immediately before the date of the declaration. This period
does not relate to the commencement
of the NWA, but rather to the
date when the relevant declaration is made.
[165]
As for the “
Use-it
or Lose-it”
policy, the applicant asks for this court to declare the policy ultra
vires of the provisions of the NWA and that it cannot be
used to
reduce the “
existing
lawful water use
”
which had taken place during the qualifying period.
[166]
On 30
August 2013 the Minister caused the publication of the “
National
Water Policy Review (‘NWPR’) Water Policy Positions
”
document, which contains the “
Use-it
or Lose-it
”
policy position in the Government Gazette for public comment. Mr
Tshangana, in his answering affidavit on behalf of the
respondents
confirms that this policy has been approved by cabinet. He states
that the policy is consistent with section 27(2)
of the Constitution
which obliges the State to take not only legislative measures but
other measures to progressively realise the
right to access
water.
[167]
It is trite that policy
determinations cannot override, amend or be in conflict with laws.
[168]
It should be noted that
it is stated in the NWPR document itself that the “
NWA
empowers on a discretionary basis that the use-it or lose-it
principle be applied to the licensing of an authorised water use
”,
but states further that “
[t]he
current legislation does not contain any mandate for this provision
to be applied to Existing Lawful Water Use
.”
[169]
Mr Tshangana confirmed
in his answering affidavit what is stated in the applicant’s
founding affidavit, namely that Mr Singh
of the Department confirmed
during the meeting with representatives of the applicant on 2 October
2019 that the “
Use-it
or Lose-it
”
policy could not be implemented until such time that the NWA is
amended.
[170]
Nothing further needs
be said about the “
Use-it
or Lose-it
”
policy, save to confirm that, in my view, the use of this policy is
beyond what is permissible under the NWA in respect
of existing
lawful water which taken place during the qualifying period discussed
above.
[171]
As for the “
trees
in the ground
”
issue, the relief sought by the applicant is for this court to
declare that “
[i]n
the process of verifying existing
water use as provided for in section 35 of the Act, that the
interpretation of “use of land
for afforestation which has been
or is being established for commercial purposes” is not
restricted to “trees in the
ground” during the qualifying
period”.
[172]
It is important to note
that the meaning of an existing lawful water use in terms of section
32(1) of the NWA includes a stream
flow reduction activity, which in
terms of section 36(1) includes “
the
use of land for afforestation which has been or is being established
for commercial purposes
”.
[173]
The way I understand
the respondents’ argument is that the absence of trees in the
ground does not necessarily indicate that
the land in question is not
being used for commercial afforestation. Their argument is that the
absence of trees in the ground
is but one indicator that there was no
existing lawful water use during the qualifying period in the form of
a stream flow reduction
activity. I agree with this argument, keeping
in mind that land may have lain fallow for the duration of the
qualifying period,
which does not mean that it was not in use for
commercial forestation. It may be so that during this period
the land may
have been under preparation for commercial afforestation
or the clear felled area may have been under preparation for the
planting
of new trees.
[174]
On the premise that the
determination of an existing lawful water use in the form of a
streamflow reduction activity by way of commercial
forestry must be
determined with reference to the circumstances of each case, the
respondents argue that the applicant is not entitled
to the relief
claimed in prayer 6.4 as it would apply generally whereas the
circumstances of each case are different.
[175]
I agree with the
applicant’s argument that the contentions of the respondents
are based on an erroneous reading of the relief
claimed, namely that
the absence of trees in the ground during the qualifying period
should not be regarded as conclusive of the
absence of the use of
land for afforestation which has been or is being established for
commercial purposes. I agree with counsel
for the applicant, that the
use of the present progressive tense in section 36(1)(a) is
significant, describing an action that
started in the past and
continues in the present. On a proper reading of the section, it is
clear that the use of land for commercial
afforestation include
periods where such land was in the process of being prepared for
commercial afforestation or for reforestation.
It may be that the
period during which the land laid fallow or was being prepared for
commercial afforestation could have fallen
within the qualifying
period.
[176]
I am mindful that
during the qualifying period, the 1984 Act, as well as the
regulations promulgated thereunder were applicable.
In terms of the
1984 Forest Act Regulations, “plantation” was defined as
“…
land
as defined in the Act [the NWA] on which timber species for
industrial or commercial purposes are cultivated and which can
deliver or is physically capable of delivering usable crops of timber
and timber produce and which has been withdrawn from timber
utilisation,
as
well as a plantation which has been clearfelled or burnt down and
which will be reafforested in the foreseeable future
,
…”.
(my
underlining). This is a clear indication that land was legally
considered a plantation despite that absence of trees in the
ground
under the circumstances mentioned.
[177]
Under the
circumstances, I am of the view that the applicant is entitled to the
relief claimed in prayer 6.4.
The
best available information and the precautionary principle
[178]
The respondents rely on
the best available information and the precautionary principle in its
persistence that genus exchange from
pine to eucalyptus trees must be
authorised. They furthermore rely on provisions of the National
Environmental Management Act,
1998 (“NEMA”) to advance
the argument that the best available information and the
precautionary principle must be taken
in consideration;
a.
to interpret the NWA,
in particular the definition of “
stream
flow reduction activity”
premised on the interpretation that such definition involves the
consumptive use of water (as opposed the applicant’s argument
that it involves the use of land); and
b.
when making
decisions relating to the verification of existing water uses in
respect of stream flow reduction activities in terms
of section
35(4), when granting licences and when determining genus exchange
ratios.
[179]
Section 2(4) of NEMA
provides that “
[s]ustainable
development requires the consideration of all relevant factors
including … (vii) that a risk-averse and cautious
approach is
applied, which takes into account the limits of current knowledge
about the consequences of decisions and actions…”.
This is the so-called “
precautionary
principle
”.
[180]
Section 2(1) provides
that principles set out in that section (which includes the
precautionary principle dealt with in section
2(4)), apply throughout
the Republic to actions of all organs of state that may significantly
affect the environment, and “
serve
as guidelines by reference to which any organ of state must exercise
any function when taking any decision in terms of [NEMA]
or any
statutory provision concerning the protection of the environment;
”
and “
guide the
interpretation, administration and implementation of [NEMA], and any
other law concerned with the protection or management
of the
environment.”
[181]
As for the verification
of an existing water use, the applicant points out that section 35(4)
of the NWA involves an investigation
as to the factual state of
affairs that existed during the qualifying period referred to in
section 32(1) and does not entail a
discretion to grant or refuse
water entitlements. As such, the precautionary principle referred to
in section 2 of NEMA is not
applicable. I agree with this contention,
but this does not imply that the precautionary principle as it was
applicable before
the coming into effect of NEMA did not apply.
[182]
Counsel for the
applicant argue that since NEMA came into operation on 25 January
1999, being a date subsequent to the coming
into effect of the
NWA, the principles in NEMA could not have been applied to interpret
the NWA or to determine genus exchange
ratios or the issue of new
licences under the NWA. It could also not have been utilised to
support the approach that genus exchange
necessitates a new licence
or authorisation.
[183]
The granting of
licences, as correctly argued by counsel for the respondents,
continue to take place after the coming into effect
of the relevant
provisions of NEMA. I agree, therefore, that these provisions in NEMA
may be relied upon by the respondents in
respect of the granting of
licences. The same argument applies to the determination of genus
exchange ratios, but this is dependent
on what I find in respect of
genus exchange, which I shall deal with later.
[184]
The applicant may be
correct in its contention that the precautionary principle as set out
in NEMA is not applicable to the verification
of an existing water
use. Counsel for the respondents, however points out, correctly in my
view, that indeed there were no legislation
in place specifically
giving effect to the precautionary principle before NEMA, and the
respondents were therefore not precluded
by the principle of
constitutional subsidiarity from directly relying on sections 24(b)
and 27(2) of the Constitution.
[185]
The precautionary
approach is also recognised in international law. Principle 15 of the
Rio Declaration on Environment and Development
states as follows:
“
In
order to protect the environment, the precautionary approach shall be
widely applied by States according to their capabilities.
Where there
are threats of serious or irreversible damage, lack of full
scientific certainty shall not be used as a reason for
postponing
cost effective measures to prevent environmental degradation.”
Section 233 of the
Constitution requires our courts to prefer any reasonable
interpretation of the legislation that is consistent
with
international law over any alternative interpretation that is not.
[186]
In the
WWF
matter, Rogers J discussed the application of the precautionary
approach in international law and referred to the detailed treatment
of the subject in the Australian case of
Telstra
Corporation Limited v Hornsby Shire Council,
228,
228 [2006] NSWLEC (sic). He summed up aspects of the case as follows
(at para 104):
“
The
court said that the principal finds application where two conditions
are satisfied, namely, that the proposed activity poses
a “threat
of serious or irreversible environmental damage” and the
“existence of scientific uncertainty as to
the environmental
damage”. If these conditions are met, the principle is
activated and there is a “shifting of an evidentiary
burden of
showing that this threat does not, in fact, exist or is negligible”.
Furthermore, prudence suggests that “some
margin for error
should be retained” until all consequences of the activity are
known. Potential errors are “weighted
in favour of
environmental protection”, the object being “to safeguard
the ecological space or environmental room for
manoeuvre”.
[187]
The respondents rely on
the precautionary principle on the basis that, according to them; (a)
the unregulated 1:1 ration exchange
from lower water using genus
(pine) to a higher water using genus (eucalyptus) would lead to an
increased consumption of up to
45% of water resulting in a
devastating effect on the environment and socio-economic conditions
as a result of a marked reduction
in water availability; and (b)
industrial forestry is based on 10% of the land that produces 60% of
South Africa’s water
resources which, which is ranked the 30
th
driest country in the world.
[188]
The respondents contend
that the studies relied upon by them are the best available
information, in that;
[154.1]
The Gush 2002 Report
was significantly refined by the 2009 Jewitt Report, which is more
site specific and provided a powerful tool
for the assessment of
stream flow reduction activities;
[154.2]
The 2009 Jewitt Report
also led to more specific spatially representative information
regarding rainfall, soils, potential evaporation
and baseline
vegetation which are provided, leading to more spatially explicit
estimates of water use with less uncertainty than
those previously
available;
[154.3]
The 2009 Jewitt
Report’s SFRA Assessment Utility also refined the water use
estimates to typographical quinary catchment level;
and
[154.4]
The 2019 Toucher
Report, which; (a) addressed the concerns relating to the Acocks
baseline vegetation; (b) significantly refined
the Acocks baseline
classification; and (c) concluded that it has provided an alternative
hydrological baseline in the form of
the SANBI (2012) clusters for
which the vegetation water use parameters have been derived using a
documented, consistent and repeatable
methodology using field based
or remotely sensed data where possible.
[189]
The applicant argues
that the respondents’ reliance on the precautionary principle
is misguided for a number of reasons. In
furtherance of this argument
they state that the modified Gush Tables (as per the 2009 Jewitt
Report) have been shown to have a
high degree of uncertainty and are
at best suitable for broad preliminary national or regional planning
and are not appropriate
for detailed on-farm decision making at farm
or compartment level.
[190]
The applicant makes the
point that a potentially large range of diverse catchment properties,
such as baseline vegetation, soils,
altitude, rainfall etc. are
represented by average values in “
the
best available information
”.
Each catchment, be it quaternary or quinary is unique. They have
different annual rainfalls, each has a variety of soil
types, the
depth of the soils in which trees are planted varies, the trees are
planted on different altitudes and the terrains
fluctuate. These
factors all affect how much of the rainfall or water the trees use.
The estimates in “
best
available information
”
are based on information obtained on a quaternary catchment level and
in the case of the 2009 Jewitt Report, at a quinary
level which
Jewitt himself calculated, and which calculations, according to the
applicant, have never been published.
[191]
The applicant maintains
that the precautionary principle cannot be utilised to diminish water
use entitlements in the process of
verifying existing water use in
terms of section 35(4) of the NWA, and the definition of “stream
flow reduction” activity
does not refer to a volume of water,
consequently no authorisation is required for genus exchange. The
precautionary principle,
as a consequence of this argument, is of no
import. A correct interpretation of the relevant provisions of the
NWA, in my view,
will be determinative of these aspects. I will deal
with this later.
[192]
In support of the
application of the precautionary principle, the respondents contend
that eucalyptus trees use 23% to 45% more
water than pine trees, and
the unregulated genus exchange will result in a significant reduction
of water availability for basic
human consumption, animals and the
ecological system.
[193]
In support of the
argument, the respondents rely on advice obtained from Jewitt in the
email dated 3 December 2016. In this email,
Jewitt advised that In
the NWA, “water use is defined as impact on ‘blue water’
i.e. the water in rivers and
aquafers. He then states that in order
for water use in accordance with the NWA, “
we
should perhaps rather estimate forestry water use a volume i.e. blue
water. In SA, we do this through estimating impact on blue
water i.e.
Streamflow generated from an area of natural vegetation (baseline)
[less] streamflow generated from the same area of
forestry [equals]
Streamflow reduction
”.
He then provides a table with data from the seven quaternary
catchment areas, concluding that eucalyptus trees in those
catchment
areas have a 23% to 45% higher water use than eucalyptus trees in the
same areas.
[194]
Counsel for the
applicant argue that the estimates contained in the email from Jewitt
is artificial, illogical and irrational and
fails to take into
account the water that would have been consumed by whatever natural
vegetation there existed before afforestation
was established. In
response, counsel for the respondents states that the water that
would have been consumed by baseline vegetation
has already been
taken in consideration, but there are no indications of this in
Jewitt’s email. If such use had been taken
in consideration,
there are also no indications as to what values were attributed to
this.
[195]
Counsel for the
applicant further argue, correctly in my view, that the total
evaporation values (and the relative genus-specific
differences) as
opposed to the smaller streamflow reduction values (and the relative
genus-specific differences) should be taken
in consideration in the
utilization of the modified Gush Tables to determine genus exchange
ratios and hence also whether the current
“
best
available information
”
can be relied upon. The use of the smaller values to genus exchange
ratios, without taking into account the water which
baseline
vegetation would have consumed, results in greater relative
difference between genera.
[196]
Counsel for the
applicant illustrated the opposing views of the parties with
reference to the graph below which is attached as Annexure
MP 52 to
its papers. The information and data used in the graph is the actual
information and data taken from the 2002 Gush Tables
in relation to
quaternary catchment X12J therein.
[SEE
PDF AND RTF VERSIONS FOR GRAPH]
[197]
The graph reflects the
following;
[166.1]
The mean annual
precipitation of the quaternary catchment amounts to 1 158mm;
[166.2]
The Acocks baseline
vegetation consumes 376mm per annual runoff (32.5% of the total
runoff);
[166.3]
Pine trees annually
consume 140mm more than the 376mm runoff consumed by the Acocks
baseline vegetation; and
[166.4]
Eucalyptus trees
annually consume 182mm more than the 376mm runoff consumed by the
Acocks baseline vegetation.
[166.5]
The relative increase
in the reduction of runoff if pine trees have been replaced by
eucalyptus trees is 42mm (based on a consumption
ration of
516mm/558mm, which includes the consumption by the genera as well as
the Acocks baseline vegetation), or 7.5% expressed
as a percentage.
[198]
In the presentation the
respondents, by using the same data, takes no account of the water
which would have been consumed by the
natural vegetation which the
trees have replaced. Instead, the smaller values used by the
respective genera, namely 140mm and 182mm
used by pine and eucalyptus
trees respectively over and above the water that would have been
consumed by natural vegetation (as
opposed to 516mm and 558mm if the
baseline vegetation water use is taken into consideration), results
in estimates which show the
difference in water use between pine and
eucalyptus as 23% more water used by eucalyptus over pine.
[199]
Counsel for the
applicant point out that not more than approximately 10% of each
quaternary catchment area is planted with commercial
forest
plantations. To illustrate the true impact of genus exchange where
10% of a quaternary catchment had been planted with trees,
data that
relate to quaternary catchment B81C in the 2002 Gush Tables is used
in a series of graphs and summarised in the bar graph
marked as
Annexure MP53.5. The data as reflected in the 2002 Gush Tables in
respect of quaternary catchment B81C, is as follows;
[169.1]
the catchment is 20 840
hectares in extent;
[169.2]
the annual mean
precipitation amounts to 890.9mm;
[169.3]
the Acocks baseline
vegetation on medium depth soils consumes 178mm per annum (calculated
with reference to the median annual flow);
[169.4]
pine trees on medium
depth soils consumes 241.2mm per annum (calculated with reference to
the median annual total flow); and
[169.5]
eucalyptus trees on
medium depth soils consume 261.1mm per annum (calculated with
reference to median annual flow).
It should be noted
that the information in the aforesaid tables is based on the
assumption of 100% forest cover in each catchment.
The water use and
streamflow under the forest cover was then compared with those
associated with a baseline land cover equivalent
to the dominant
Acocks Veld Type within a quaternary catchment. The streamflow
reductions were thus assumed to be the difference
between the
streamflow simulated for the catchment, consisting of the dominant
Acocks Veld Type and 100% of the commercial afforestation
within the
catchment.
[200]
In Annexure MP53.5
replicated below, it is assumed that only 10% of the catchment area
had been afforested, either with pine or
eucalyptus trees, or a
combination of the two genera.
[201]
Annexure MP53.5
reflects the runoff in different scenarios, with the first bar
representing the total volume of rain with no vegetation
in the
entire catchment, the second bar with Acocks baseline covering the
whole catchment, the third bar with 10% of the area planted
with pine
trees, the fourth bar with 10% of the catchment planted with 50% pine
trees and 50% with eucalyptus trees, and the fifth
bar with 10% of
the area planted with eucalyptus trees. Taking into consideration the
water consumed by the Acocks vegetation and
the trees planted, if 10%
of the catchment is planted with pine trees and the balance covered
with natural vegetation the net effect
on the runoff for the whole
catchment would be a 3.38% reduction from the scenario where the
whole area is covered with natural
vegetation. If the pine trees are
replaced with eucalyptus trees, the net effect would be a 3.66%
reduction in runoff. The estimated
difference on the effect of the
exchange of genera from pine trees to eucalyptus trees on the
streamflow, therefore would be a
reduction of 0.28% of the runoff.
[SEE
PDF AND RTF VERSIONS FOR GRAPH]
[202]
Based on the above, if
the assumptions are correct, the effect on the streamflow in the case
of genus exchange from pine trees to
eucalyptus trees is less dire
(an increase of 0.28% in the sketched scenario) than what the
respondents make out to be the case.
[203]
The applicant argues
that the precautionary principle cannot be resorted to by the
respondents in the circumstances as sketched.
It is further argued by
the applicant that the definition of “
streamflow
reduction activity
”
does not refer to a volume of water, consequently no authorisation is
required for genus exchange and as such the principles
contained in
section 2 of NEMA, including the precautionary principle, are of no
import.
[204]
The applicant admits
that the principles in section 2 of NEMA are applicable as far as the
granting of licences are concerned, but
submits that the
precautionary principle can only be applied where there is a threat
of serious or irreversible environmental damage
which is adequately
sustained by scientific evidence and asks this court to conclude that
it cannot be the case in this matter.
[205]
The parties agree that
the scientific knowledge relating to water use by different genera
and species is inadequate and is inappropriate
for a detailed on-farm
decision making for afforestation at farm or compartment level, that
the modified Gush Tables have a high
degree of uncertainty, and that
a large range of diverse catchment properties (such as soils,
vegetation, altitude, rainfall etc.)
are represented by average
values. The argument presented by the applicant with reference to
Annexures MP52 and MP53.5 is based
on the information and data which
the applicant itself say are unreliable.
[206]
The applicant’s
argument against the utilisation of the precautionary principle in
the issuing of licences under the NWA and
the imposition of
conditions prohibiting genera exchange when licences are issued is
based on the unreliability of the information
available. However,
case law suggests in favour of the use of the principle where there
is scientific uncertainty.
[207]
In the
WWF
matter, the court, at paragraph 103, referred to a judgment of the
Supreme Court of India,
AP
Pollution Control Board v Prof MV Nayudu
AIR
1999 SC 812
where that court reviewed the development of the
precautionary principle internationally and identified the
inadequacies of science
as the real basis that has led to its
emergence. It was held that it is “
based
on the theory that it is better to err on the side of caution and
prevent environmental harm which may become irreversible
”.
[208]
In
Fuel
Retailers Association of Southern Africa v Director-General:
Environmental Management, Department of Agriculture, Conservation
and
Environment, Mpumalanga Province and Others
2007 (6) SA 4
(CC), the Constitutional Court held (at para 81) that
“
NEMA requires
‘a risk averse and cautious approach’ to be applied by
decision-makers [section 2(4)(a)(vii) of NEMA].
This approach entails
taking into account the limitation on present knowledge about the
consequences of an environmental decision.”
[209]
The relief sought by
the applicant in relation to the imposition of conditions prohibiting
genera exchange when issuing licences,
and where, by implication, the
court is asked to rule that the respondents are not allowed to
utilise the precautionary principle,
is contained in paragraph 6.6.3
of the notice of motion, and is worth repeating, as follows:
“
Since the
promulgation of the Act, in respect of an application for a licence
in terms of section 41 of the Act for the water use
of engaging in a
stream flow reduction activity, contemplated in section 36(1)(a) of
the Act, the responsible authority has not
been entitled to and is
still not entitled to validly impose any condition prohibiting the
exchange of genera, species or clones
of trees in the absence of
regulations prescribing methods for making a volumetric determination
of water to be ascribed to a stream
flow reduction activity as
provided for in section 26(1)(m) of the Act.”
[210]
I understand that
the relief in prayer 6.6.3 of the notice of motion is asked for in
the absence of regulations prescribing methods
for making volumetric
determination of water to be ascribed to a streamflow reduction
activity and also the use of water by different
genera of trees. The
problem with this relief is that section 26(1)(m) of the NWA provides
for the making of regulations to be
directory, not compulsory.
Granting the relief under discussion, therefore, may cause the relief
to be in place
ad
infinitum
, or for
an inordinate amount of time. This would be problematic, especially
if new scientific information that may come to hand
indicate that
certain genera or species of trees use significantly more water than
others, and may have a detrimental effect on
water use.
[211]
A
further difficulty I have with the relief sought in prayer 6.6.3
relates to the separation of power and the matter of deference
that
courts must show to functionaries or decision makers in branches of
government. In
Doctors
for Life International v Speaker of the National Assembly and
Others
[2006]
ZACC 11
;
2006
(6) SA 416
(CC) at
para 37;
2006
(12) BCLR 1399
(CC)
at 1417C-E, it was held:
“
The
constitutional principle of separation of powers requires that other
branches of government refrain from interfering in parliamentary
proceedings. This principle is not simply an abstract notion; it is
reflected in the very structure of our government. The structure
of
the provisions entrusting and separating powers between the
legislative, executive and judicial branches reflects the concept
of
separation of powers. The principle ‘has important consequences
for the way in which and the institutions by which power
can be
exercised’. Courts must be conscious of the vital limits on
judicial authority and the Constitution’s design
to leave
certain matters to other branches of government. They too must
observe the constitutional limits of their authority. This
means that
the Judiciary should not interfere in the processes of other branches
of government unless to do so is mandated by the
Constitution.”
(Footnotes
omitted)
[212]
The above paragraph was
quoted by the Constitutional Court in
International
Trade Administration Commission v SCAW South Africa (Pty) Ltd
(CCT
59/09)
[2010] ZACC 6
;
2012 (4) SA 618
(CC);
2010 (5) BCLR 457
(CC) (9
March 2010), where the court further held: (at para 95):
“
Where
the Constitution or valid legislation has entrusted specific powers
and functions to a particular branch of government, courts
may not
usurp that power or function by making a decision of their
preference. That would frustrate the balance of power implied
in the
principle of separation of powers. The primary responsibility of a
court is not to make decisions reserved for or within
the domain of
other branches of government, but rather to ensure that the concerned
branches of government exercise their authority
within the bounds of
the Constitution. This would especially be so where the decision in
issue is policy-laden as well as polycentric
.”
[213]
I am mindful that in
terms of section 29 of the NWA, the responsible authority may attach
conditions to every general authorisation
or licence. Subsection 1(a)
is of a general nature in that it empowers the responsible authority
to attach conditions relating
to the protection of the water source
in question, the streamflow regime and other existing water users.
Subsection (1)(f) is specific
to a streamflow reduction activity and
allows the responsible authority to attach conditions specifying
practices to be followed
to limit streamflow reduction and other
detrimental impacts on the water resource. The relief in prayer
6.6.3, in my view, will
interfere with the authority granted to the
responsible authority under subsections 29(1)(a) and (f).
[214]
In these circumstances,
I am of the view that the respondents should not be injuncted from
applying the precautionary principle
when considering new licences
for afforestation and when considering the imposition of conditions
prohibiting genera exchange in
respect of such licences.
Further
issues requiring legislative interpretation
[215]
I now move on to deal
with the relief sought by the applicant in prayer 6.1 of the notice
of motion, which is repeated for ease
of reference, as follows;
“
An
existing lawful water use in respect of a stream flow reduction
activity referred to in section 32(1)(a)(ii) of the Act [i.e.
the
NWA], in respect of the use of land for afforestation which had been
or was being established for commercial purposes as contemplated
in
section 36(1)(a) of the Act, is not subject to the requirement of
authorisation “by or under any law which was in force
immediately before the date of commencement of this Act”, as
provided for in section 32(1)(a)(i) of the Act
”
.
[216]
It is immediately
evident that an interpretation of sections 32(1)(a)(i) and (ii) as
well as section 36(1)(a) is required. It will
also become apparent
that section 32(1)(a) must be read with other provisions of the NWA,
specifically section 4(2), 32(2)(a) and
34(1)(a) of the NWA.
[217]
The approach to
statutory interpretation has been extensively dealt with in
Natal
Joint Municipal Pension Fund v Endumeni Municipality
SA
2012 (4) 593 (SCA), where Wallis JA described the process of
interpretation as involving a unitary exercise of considering
language,
context and purpose (at para 18) and concluded (at para 19)
that the approach to interpretation which our courts should now
follow
is that from the outset, one considers the context and the
language used together, with neither predominating over the other. In
the oft-quoted passage (at para 18), he held:
“
The
present state of the law can be expressed as follows: Interpretation
is the process of attributing meaning to the words used
in a
document, be it legislation, some statutory instrument, or contract,
having regard to the context provided by reading the
particular
provision or provisions in the light of the document as a whole and
the circumstances attendant upon its coming into
existence. Whatever
the nature of the document, consideration must be given to the
language used in the light of the ordinary rules
of grammar and
syntax; the context in which the provision appears; the apparent
purpose to which it is directed and the material
known to those
responsible for its production. Where more than one meaning is
possible each possibility must be weighed in the
light of all these
factors. The process is objective, not subjective. A sensible meaning
is to be preferred to one that leads to
insensible or unbusinesslike
results or undermines the apparent purpose of the document. Judges
must be alert to, and guard against,
the temptation to substitute
what they regard as reasonable, sensible or businesslike for the
words actually used. To do so in
regard to a statute with statutory
instrument is to cross the divide between interpretation and
legislation; in a contextual context
it is to make a contract for the
parties other than the one they infect made. The ‘inevitable
point of departure is the language
of the provision itself’,
read in context and having regard to the purpose of the provision and
the background to the preparation
and production of the document.
”
.
(Footnotes omitted)
[218]
It bears mention that
the Constitutional Court has approved the approach adopted in
Endumeni
,
first in
KwaZulu-Natal
Joint Liaison Committee v MEC Department of Education, Kwazulu-Natal
and Others
2013 (4)
SA 262
(CC) (at para 129) and the approach was relied on in many
other cases thereafter.
[219]
As already mentioned,
section 32 of the NWA defines an “
existing
lawful water use
”
in subsection (1) as meaning a water use which has taken place at any
time during the qualifying period, and which –
“
(i)
was authorised by or under any law which was in force immediately
before the date of commencement of [the NWA];
(ii) is a stream
flow production activity contemplated in section 36(1); or
(iii) is a
controlled activity in section 37(1)”
[220]
The applicant’s
argument is that section 32(1) provides for three distinct categories
of water uses listed under (i), (ii)
and (iii) respectively.
[221]
The applicant expresses
the view that an existing lawful water use in respect of a stream
flow reduction activity referred to in
section 32(1)(a)(ii) of the
NWA, with regards to the use of land for afforestation which had been
or was being established for
commercial purposes as contemplated in
section 36(1)(a) is not subject to the requirement of authorisation
“
by or under
any law which was in force immediately before the date of
commencement of [the NWA]”,
as
provided for in section 32(1)(a)(i). The applicant finds support for
its view in the words of Hubert Thompson in his book,
Water
Law
(first ed)
2006, where it is stated (at page 413):
“
As
far as determining the lawfulness of use of land for commercial
afforestation and the identified controlled activities which
are not
authorised by a license or a general authorisation concerned, the
current use is only compared with the use that actually
took place
during the qualifying period to determine
whether
this is lawful or not
.”
(my underlying)
[222]
Counsel for the
applicant argues that the applicant’s interpretation is
supported by the structural and grammatical analysis
of section 32 of
the NWA, viewed in its proper context. In furtherance of this stance,
it is argued that the use of the word “
or
”
in section 32(1)(a) is instructive in that it separates sub-sections
(i), (ii) and (iii) and also separates sub-sections
(a) and (b). In
both instances, it is argued, its function is to cause the separated
portions to be read disjunctively. It is difficult
to disagree with
the applicant’s argument, as sub-section (i) provides for a
wide category of water uses, whereas Sub-sections
(ii) and (iii) are
specific to a stream flow reduction activity and a controlled
activity respectively. If one is to read in the
word “
and
”
between sub-sections (i) and (iii), or accepts that “
or
”
means “
and
”
between sub-sections (ii) and (iii), it would have the result that no
other water uses besides that catered for in sub-sections
(ii) and
(iii) would qualify as “
existing
lawful water uses
”.
[223]
The respondents contend
that the applicant’s argument that existing lawful water use in
respect of stream flow reduction activities
is not subject to section
32(1)(a)(i) of the NWA, namely that it did not need to have been
authorised by or under any law which
was in force immediately before
the commencement of the NWA is absurd. What this means, they argue,
is that any person who may
have used land for afforestation during
the qualifying period and will be entitled to claim an existing
lawful use under section
32(1)(a)(ii) of the NWA.
[224]
I agree with the
applicant that the three uses mentioned in section 32(1)(a) are
distinct from each other, but disagree that this
implies that a
stream flow reduction activity mentioned under sub-section (ii) need
not be lawful. In my view, a correct interpretation
of section
32(1)(a), and in particular sub-section (ii) thereof will be
ascertained if one reads this provision by having regard
to other
sections of the NWA. Sub-section (ii) refers to a stream flow
reduction activity as contemplated in section 36(1) of the
NWA. The
latter section declares the use of land for afforestation which has
been or is being established for commercial purposes
as a stream flow
reduction activity. The present continuous tense used in section
36(1) is, in my view, consistent with section
4(2) which provides
that a person may continue with an existing lawful water use in
accordance with section 34. Importantly, section
34 provides that a
“
person or
that person’s successor-in-title, may continue with an existing
lawful water use
”,
subject to certain conditions.
[225]
The use of the words
“existing” and “lawful” in section 4(2),
36(1) as well as in section 32 are, in my
view, instructive. The
water use referred to in section 32(1)(a)(ii), must be lawful. It
would be absurd to hold otherwise.
[226]
I remain mindful that
the 1984 Act was applicable during the qualifying period and in terms
of that Act, commercial afforestation
had to be permitted or
authorised under it. This is in line with the submission made by
counsel for the applicant that the 1984
Act (as was the case with the
1972 amendment) concerned itself with the authorisation in respect of
new land to be afforested for
commercial purposes. The absence of a
requirement of lawfulness will have an absurd effect of section
32(1)(ii) legalising the
use of land for afforestation only because
the land was so used for some time during the qualifying period.
[227]
The relief sought by
the applicant in prayer 6.1 is to the effect that the use of land for
afforestation, as long as such land was
used for such purpose during
the qualifying period, is not subject not only to the requirement of
authorisation “
by
or under any law which was in force immediately before the date of
commencement of [the NWA]”,
but
effectively also not subject to lawfulness. This cannot be sustained.
I am fortified by the clear meaning of section 35(1),
in terms
whereof the responsible authority may, “
in
order to verify the
lawfulness
or extent of an existing water use, by written notice, require any
person claiming an entitlement to that water use to apply for
a
verification of that use.”
(My
underlining).
[228]
In any event, the
relief sought in prayer 6.1 is of a declaratory nature which is
discretionary. In terms of section 38 of the Constitution,
a court
“
may
”
grant a declaration of rights where it would be appropriate relief.
[229]
In the present matter,
I am of the view that granting the relief sought in prayer 6.1 would
be inapposite and I should exercise
my discretion accordingly. It
follows that prayer 6.1A should also be refused as the relief sought
therein is asked for only in
the event of the relief in prayer 6.1
being granted.
[230]
The relief sought in
prayer 6.1B is in the alternative to the relief in prayer 6.1, and is
to the effect that authorisation under
any law as contemplated in
section 32(1)(i) in relation to stream flow reduction activities
claimed as an existing lawful water
use, need not be proven in
respect of any other legislation save for the 1984 Act in so far as
it is applicable.
[231]
I have already held
that subsections (i), (ii) and (iii) under section 32(1)(a) are
distinct from one another. In effect, the requirement
pertaining to
one cannot be superimposed onto one of the others. I have also
concluded that lawfulness remains a requirement for
a streamflow
reduction activity contemplated in sub-section (ii). For these
reasons, I am of the view that the relief under prayer
6.1B should be
refused for similar reasons for the refusal for the relief under
prayer 6.1.
[232]
The relief sought in
prayer 6.2 is:
“
In
the process of verifying existing water use as provided for in
section 35 of the Act [the NWA], the current water use cannot
be
utilised to reduce the “existing lawful water use” which
had taken place during the qualifying period set out in
section 32(2)
of the Act
”.
[233]
The respondents
admitted in their answering affidavit that current use is utilised to
determine the existing lawful water use which
had taken place during
the qualifying period. In their answering affidavit (paragraph 135)
the respondents denied that the applicant
is entitled to the relief
that current use cannot be utilised to reduce the existing lawful
water use which had taken place during
the qualifying period. The
respondents do, however, admit (in paragraph 275 of the answering
affidavit) that by interpreting the
word “
existing
”
in the phrase “
existing
lawful water use
”
as meaning “
at
the current time
”
is incorrect.
[234]
Clearly the purpose of
section 35 is to verify the existing water use, which is the water
use which had taken place during the qualifying
period and not the
current use, i.e. the use at the time of the verification exercise.
As a result, the applicant is entitled to
the relief claimed in
prayer 6.2.
The
relief sought relating to genus exchange
[235]
The relief sought in
relation to genus exchange is contained in various prayers under
prayer 6.6. Prayer 6.6.1 is sought only in
the event of an order in
term of prayer 6.1 being granted. I held that prayer 6.1 should be
refused, and it is therefore not necessary
to deal with prayer 6.6.1.
[236]
The relief sought under
prayer 6.6.2 is sought in the event of the refusal of the relief
sought in prayers 6.1, 6.1A and/or 6.1B,
and therefore requires
consideration.
[237]
Prayer 6.6.2 consists
of 6.6.2A and 6.6.2B, and reads:
“
6.6.2A
For the purposes of determining whether the water use
was authorised as contemplated by section 32(1)(a)(i) of the Act and
the extent of existing lawful water uses in respect
of stream flow reduction activities in terms of the provisions of the
National Water Act:
a
)
on a proper interpretation of the 1984
Forest Act, alternatively the 1984 Forest Act and the 1968 Forest Act
as amended in 1972
and of the planting permits issued in terms
thereof, any reference to genera or species of trees in the planting
permits does not
limit such existing lawful water use to such genera
or species;
b)
the genus or species of trees utilised for
commercial afforestation, which afforestation had been established
prior to the commencement
of the qualifying period or was in the
process of being established at any time
during
the qualifying period
, cannot be taken
into consideration.
6.6.2B
The
order as set out in prayer 6.6.2A above will not affect specific
permits containing provisions expressly therein described as
conditions prohibiting genus exchange without written approval from
the relevant authority
and shall
not be regarded as a review of any such permits.”
[238]
Before dealing further
with prayer 6.6.2, it should be noted that the relief contained
therein are sought, based on two premises,
firstly, for the purposes
of determining whether the water use was authorised as contemplated
by section 32(1)(a)(i) of the NWA
and secondly, for the purposes of
determining the extent of existing lawful water uses in respect of
stream flow reduction activities
in terms of the provisions of the
NWA. I have already held that the stream flow reduction activity
referred to in section 32(1)(a)(ii)
of the NWA is a distinct water
use from that mentioned in section 32(1)(a)(i), and is therefore not
subject to the same requirements
of the use in sub-section (i)
per
se
, but it is still
subject to a lawfulness requirement. I will proceed to consider the
relief sought in prayer 6.6.2A, therefore,
only on the premise for
determination the lawfulness and extent of existing lawful water use
in respect of a stream flow reduction
activity.
[239]
The relief sought under
prayer 6.6.2A, as well as the relief sought under prayers 6.6.4 and
6.6.5 all relate to the verification
of existing water uses. In terms
of section 35 of the NWA, the responsible authority (i.e. the
Minister) may by written notice,
in order to verify the lawfulness or
extent of an existing water use, require any person claiming an
entitlement to such water
use to apply for a verification of that
use. In terms of section 35(4) of the NWA, once the Minister has
determined the extent
or lawfulness of a water use pursuant to the
aforesaid application, such determination limits the extent of any
lawful water use
contemplated in section 32(1).
[240]
The relief under
discussion sought by the applicant was prompted by the position
adopted by the Department relating to the verification
of existing
lawful water use and genus exchange in correspondence with the
applicant and some of its members. This
includes:
[228.1]
A letter from the
Department to one of the applicant’s members, dated 17 May
2012, wherein the latter was informed as follows:
“
The
genus authorised on the permit/licence may not be changed without
authorisation from the Department (please see permit/license
conditions). If the genus is planted in the 1996 - 1998 qualifying
period (see section 32 of the NWA) is not the authorised genus,
the
existing lawful water use is determined considering the lawful genus
i.e. permitted. The unauthorised genus is therefore regarded
as
unlawful and a genus exchange is required to rectify the situation.
In the case of pre-72 afforestation, the genus planted in
the
1996-1998 qualifying period is regard as the lawful genius
.”
[228.2]
The letter from the
department to the applicant dated 14 January 2017, wherein the
department informed that the draft genus exchange
regulations were
put on hold pending a review by research specialists, and wherein the
applicant was informed as follows:
“
In
the absence of the regulations, genus exchange may only be done if a
specific licence, in its conditions, allows for the exchange.
Failing
this the water user wanting to do genus exchange must contact the
[Department] for a licence (this is relevant for pre-72
and permitted
afforestation as per section 34 of the NWA) or the amendment of
existing National Water Act (NWA)
licences.”
The reference to
section 34 of the NWA seems to imply that the position adopted by the
department also included those uses which
were allowed to continue as
existing lawful water uses as provided for in section 34.
[228.3]
The letter from the
Department to SAPPI, one of the applicant’s members, dated 20
March 2020 (it should be noted that the
relief sought currently under
discussion was introduced after this letter), wherein the latter was
informed that in the absence
of regulations relating to genus
exchange, a water use license application remains a requirement in
the case of genus exchange.
[228.4]
The letter of 25 March
2020 from the Department to the applicant wherein the applicant was
informed that in the absence of the draft
regulations, the NWA
regulates genus exchange, which may only be done with the approval of
the department.
[228.5]
Lastly, a letter from
the Department addressed to the applicant dated 20 June 2020, wherein
the applicant was informed that it was
not the draft regulation
(relating to genus exchange) that impose the requirement for existing
lawful water uses to obtain a licence
when implementing genus
exchange, but section 34 of the NWA that indicates the requirement in
this regard.
[241]
For consideration of
the relief sought in paragraphs (a) and (b) under prayer 6.6.2 (as
well as the relief sought in prayers 6.6.4
and 6.6.5, which I shall
deal with hereafter), it is necessary to have regard to the position
regarding genera exchange before
the NWA came into being.
[242]
As already mentioned,
the 1972 amendment of the 1968 Act introduced a permit system, the
APS, for the planting of trees for commercial
forestry (in terms of
section 4A(1)(a) of the amendment act).
[243]
Section 4A(1) of the
amendment Act introduced the need for approval by prior written
consent by the then authority for the utilisation
of land for
afforestation for commercial or industrial purposes. Section 4A(3)
provided that the authority may, if he had granted
approval, have
imposed such conditions as he may have deemed fit.
[244]
When the 1984 Act
became law, section 89(1) thereof repealed the 1968 Act as amended,
and provided in section 89(4) that:
“
Anything
done under a power conferred by or in terms of a provision of a law
repealed by subsection (1), is deemed to have been
done under a power
confirmed by or in terms of the corresponding provision of this Act.
”
[245]
The 1984 Act also had a
provision (in section 7) requiring the prior written approval from
the director-general (who was the then
relevant authority) for the
establishment and management of a commercial timber plantation.
[246]
The 1984 Act was
repealed by the NWA, and also made provision to the effect that
anything done under the repealed 1984 Act remained
valid.
[247]
On the basis of the
aforegoing, the respondents correctly argue that the rights,
obligations and conditions vested or implied under
the 1984 Act are,
under the NWA, to be dealt with as if the 1984 Act was never
repealed.
[248]
The applicant’s
case is that the 1984 Act and the regulations promulgated thereunder
did not concern themselves with the issue
of genus exchange or genera
of trees, except for regulation 16 which makes provision for the
collection of data pertaining to plantations
and statistical returns.
Both the regulations promulgated under the 1968 Act (i.e. regulation
5) and the 1984 Act (regulation 16)
makes provision for annual
returns to be submitted to the responsible authority in respect of
certain information, including information
as to the species of trees
planted.
[249]
The applicant argues,
and I agree, that the effect of the 1972 amendment was that as from
the date of commencement thereof, existing
commercial timber
plantations did not require to be registered, nor did they require
approval. The only permits that were required
in terms of the
amendment were permits for afforestation with a view of producing
forest produce for commercial or industrial purposes
on land not
previously afforested for such purposes.
[250]
The regulations
promulgated under in terms of the 1968 Act after the 1972 amendment,
contained a
pro
forma
application
form in terms of which an applicant was required to state, amongst
other, which species were to be planted.
[251]
A typical permit issued
under section 4A(1) of the 1968 Act is attached to the papers as
“
ABS12
”,
and is headed “
PERMIT
TO PLANT TREES FOR COMMERCIAL PURPOSES
”.
Under the heading “
Particulars
of Area Approved for Afforestation – Broad-leaved species
”,
the permit allows for 320 hectares to be planted. The permit contains
a condition that it is valid for a period of five
years from the date
of issue.
[252]
Similarly, a typical
permit issued under section 7(2) of the 1984 Act attached to the
papers as “MP50.2”, is headed
“
PERMIT
TO PLANT TREES FOR COMMERCIAL PURPOSES
”
and provides under the heading ““
Particulars
of Area Approved for Afforestation”
for
342 hectares of broad-leaved species. This permit also contains a
condition that it is valid for a period of five years from
the date
of issue.
[253]
Another permit attached
to the papers as “MP50.3” which was issued under the 1984
Act on 13 October 1998 after the NWA
came into operation, but before
sections 7, 8 and 9 of the 1098 Act were repealed, states as
condition 4 that the planting panting
of tree groups specified on the
permit “
may
not be amended without the written approval of this Department
”.
[254]
The applicant argues
that the permits issued under the 1968 and 1984 Acts (jointly
referred to as the “the repealed Acts”)
were planting
permits which expired after the period (mostly five years as
indicated on the permits which are part of the record)
specified
thereon. This is borne out by the fact that both section 4A of the
1968 Act as amended, as well as section 7 of the 1984
Act require the
prior written approval of the relevant authority for the “
planting
of trees
”,
“
with a view
to producing forest produce for commercial or industrial purposes
”
in terms of the 1968 Act, or “
to
produce timber for commercial or industrial purposes
”
in terms of the 1984 Act.
[255]
A consideration of the
contents of the permits issued under the repealed Acts is also
indicative that these permits were planting
permits. In this regard,
the heading of the permits are instructive, clearly indicating that
they were permits to plant trees for
commercial purposes. They all
expired after a period specified therein, which is clearly the period
within which the permitted
trees, to the extent of their permitted
hectarage, had to be planted.
[256]
The repealed Acts,
their regulations and the contents of the permits issued thereunder
support the applicant’s argument that
these Acts, and their
regulations did not concern themselves with genus exchange. This
raises the question whether conditions such
as condition 4 contained
in the permit marked as annexure “
MP50.3
”
survived the period of validity of the permit or not (it should be
noted that the respondents attached further permits to
their papers
containing similar provisions to condition 4). This, however, is not
an issue for this court to determine as the applicant
made it clear
that it is not reviewing any permits issued under the repealed Acts
and their regulations. This issue was raised
during argument,
whereafter the applicant amended its notice of motion, without any
objection from the respondents, to the effect
that in the event of
the order sought in prayer 6.6.2A being granted, it would not affect
specific permits containing provisions
described as conditions
prohibiting genus exchange, or where genus exchange were not allowed
without the prior written approval
of the Department.
[257]
The respondents argue
that afforestation under the repealed Acts constituted water use, or
at least it affected the availability
of water, albeit so that it was
not regulated under the then applicable water legislation. This, they
say, is clear from the provisions
of section 4A of the 1968 Act as
amended, and section 8 of the 1984 Act. It is indeed so that in terms
of section 4A of the 1968
Act as amended, the Minister was empowered
to, in the event of any trees impairing the water run-off of land
which in his or her
opinion was situated within a natural water
course, direct the removal of trees in order to improve the run-off.
Section 8 of the
1984 Act gave the Minister similar powers for
purposes of the protection of any natural water source.
[258]
The aforesaid powers of
the Minister, however, is not conclusive of the view that
afforestation for commercial purposes was considered
a water use as
opposed to a use of land under the repealed Acts.
[259]
Besides sections 4A of
the 1968 Act and section 8 of the 1984 Act, both indicating that the
legislature was aware that afforestation
impaired the water run-off,
I cannot find anything in the repealed Acts which indicate that
afforestation was not treated as a
use of land for commercial
afforestation. The repealed Acts were also not concerned about genus
exchange in the sense that different
genera of trees consumed
different volumes of water, or in any sense at all. The only instance
where there is a reference to timber
species, is Regulation 16
promulgated under the 1984 Act, but the reference is clearly in the
context of information to be
submitted in an annual return to the
Department.
[260]
Everything points
to the fact the repealed Acts and their regulations treated
afforestation as a use of land. One needs to look
no further than the
contents of the permits issued under the repealed Acts and their
regulations, which all dealt with the extent
of land in measured in
hectares which were approved for afforestation. Reference to the use
of water found no place in these permits.
[261]
As for the aspect of
“
extent
”
which may also fall to be verified under section 35 of the NWA, it is
indubitable that “extent” refers to a
physical area and
not volumetric use of water. Counsel for the respondents seem to
agree that it is indeed a physical area, where
they discuss (in
paragraph 213 of their heads of argument) the approach to the
verification process under section 35. Furthermore,
they made it
clear (in paragraph 76 of their supplementary heads of argument) that
it is not the respondents’ contention
that streamflow reduction
activities in the form of commercial forestry constitutes consumptive
water use, but rather that streamflow
reduction activities affects
water in rivers and aquafers, thus reducing water availability to
other users.
[262]
It follows that in
determining the existing lawful water use which occurred during the
qualifying period, any reference to genera
or species of trees in the
planting permits does not limit such existing lawful water use to
such genera or species. Neither can
the genus or species of trees
utilised for commercial afforestation which had been established
prior to the commencement of the
qualifying period or was in the
process of being established at any time during the qualifying period
be taken in consideration.
[263]
The relief sought in
prayer 6.6.4 should therefore be granted, namely that “
[w]henever
genera or species of trees used for commercial afforestation are
changed, the respondents are not entitled to insist,
during the
verification process, that the area of land authorised full
commercial afforestation be reduced in extent
.”
[264]
The relief sought in
6.6.5 is to the effect that exchange of genera or species of trees
does not constitute a water use as envisaged
in section 21 of the
NWA, and genus, species and clones of trees used for commercial
afforestation may be exchanged without the
need for authorisation in
terms of the NWA.
[265]
Section 21 lists, for
purposes of the NWA, “
water
uses
” under
subsections (a) to (k). The applicant contends that the list is
comprehensive and exhaustive despite it being preceded
by the word
“
includes
”.
For this conclusion, the applicant relies of the findings in
R
v Debele
1956 (4)
570 (A) (at 575B – 575H) which was confirmed in
De
Reuck v Director of Public Prosecutions, Witwatersrand Local Division
and Others
[2003] ZACC 19
;
2004 (1)
SA 406
(CC), where it was held (at para18);
“
The
correct sense of “includes” in a statute must be
ascertained from the context in which it used.
Debele
provides a useful
guideline for this determination. If the primary meaning of the term
is well known and not in need of definition
and items in the list
produced by “includes” go beyond that primary meaning,
the purpose of that list is then usually
taken to be to add to the
primary meaning so that “includes” is non-exhaustive. If,
as in this case, the primary meaning
already encompasses all the
items in the list, then the purpose of the list is to make the
definition more precise. In such a case
“includes” is
used exhaustively. between these two situations there is a third
where the drafters have for convenience
group together several things
in the definition of one term, whose primary meaning - if it is a
word in ordinary, non-legal usage
- fits some of them better than
others. such a list may also be intended as exhaustive, if only to
avoid what was referred to in
Debele
(supra
) as ‘’n
moeras van onsekerheid’ (a quagmire of uncertainty) in the
application of the term
.”
[266]
It seems to be that the
list of water uses in section 21 of the NWA is indeed a
numerus
clausus
, but even
if it was not so, it is difficult to imagine that genus exchange
could fit in as a water use without it having been mentioned
in the
list of water uses. There is no other indication in the NWA that
genus exchange can be a water use.
Some
concluding remarks.
[267]
The stance adopted by
the respondents in respect of the relief claimed, in particular in
respect of genus exchange is based on their
concern that water
is a scarce resource and the belief that genus exchange from pine
trees to eucalyptus trees can result in the
use of between 23% and
45% more water. A correct approach, illustrated by graphs MP52 and
MP53.5 is that given the areas of afforestation
in any particular
catchment area (up to 10% only), shows that the impact of genus
exchange is far less severe than assumed by the
respondents.
[268]
The parties agree that
the present scientific evidence which can be used to determine the
impact of afforestation, and the impact
of genus exchange in
particular, is inadequate and more research is being undertaken. If
it turns out that genus exchange or any
other reason causes the water
resource to be or become under stress in any particular geographical
area, the department will not
be without recourse to achieve equity
of access to water. The provisions of section 43 of the NWA were
specifically promulgated
to cater for this and entitles the
responsible authority (i.e. the Minister) to review the prevailing
water allocation to achieve
equity in allocations.
[269]
Section 43(1) of the
NWA provides:
“
If
it is desirable that water use in respect of one or more water
resources within a specific graphical area to be licenced –
(a)
to achieve a
fair allocation of water from a water resource in accordance with
section 45 –
(i)
which is under
water stress; or
(ii)
when it is
necessary to review prevailing water use to achieve equity in
allocations;
(b)
to promote
beneficial use of water in the public interest;
(c)
to facilitate
efficient management of the water resource; or
(d)
to protect water
resource quality;
the
responsible authority may issue a notice requiring persons to apply
for licences for one or more types of water use contemplated
in
section 21
.”
[270]
In terms of section 48
of the NWA, any licence issued pursuant to an application
contemplated in section 43(1) replaces any existing
lawful water use
entitlement to that person in respect of the water use in question.
In a case of a stream flow reduction activity,
the responsible
authority may, in terms of section 29(1)(a)(ii) of the NWA, attach
conditions relating to the stream flow regime,
and in terms of
section 29(1)(f), may impose conditions, in the case of a stream flow
reduction activity;
“
(i)
specifying practices to be followed to limit stream flow reduction
and other determinantal impacts on the water resource; and
(ii)
setting or prescribing a method for determining the extent of the
stream flow reduction caused by the authorised activity
”
.
It goes without
saying that such conditions may include conditions relating to genus
exchange.
[271]
It must be stressed
that the relief that I believe the applicant is entitled to relating
to genus exchange is only applicable to
the existing lawful water use
which occurred during the qualifying period and exclude those uses
which were subject to conditions
prohibiting genus exchange without
the consent of the department. It does not apply to licences issued
in terms of section 41 or
43 of the NWA which are subject to
conditions limiting or prohibiting genus exchange.
The
issue of costs
[272]
The applicant may not
have been successful in all respects relating to the relief claimed,
but has been more successful than the
respondents, and should,
therefore be entitled to costs. This matter is complex and without
doubt warrants the costs of two counsel.
I have already dealt with
the costs issue relating to the first and second interlocutory
applications.
Order
I make the following
order:
1.
The relief sought in
paragraphs 6.1, 6.1A, 6.1B, 6.6.1 and 6.6.3 of the notice of motion
are refused.
2.
It is declared that:
2.1.
In the process of
verifying existing water use as provided for in section 35 of the
National Water Act 36 of 1998 (“the NWA”)
the current water use cannot be utilised to reduce the
“existing lawful water use” which had taken place during
the
qualifying period set out in section 32(2) of the NWA.
2.2.
In the process of verifying existing water
use as provided for in section 35 of NWA, the application of the
“Use-it or Lose-it”
policy position is
ultra
vires
the provisions of the NWA and cannot be
utilised to reduce the “existing lawful water use” which
had taken place during
the qualifying period set out in section 32(2)
of the NWA.
2.3.
In the process of verifying existing water
use as provided for in section 35 of the NWA, that the interpretation
of “use of
land for afforestation which has been or is being
established for commercial purposes” is not restricted to
“trees
in the ground” during the qualifying period.
2.4.
In the process of verifying “existing
lawful water use” in respect of stream flow reduction
activities as provided for
in section 35 of the NWA, the qualifying
period is 1 October 1996 to 30 September 1998 (“the qualifying
period”); and
2.5.
In respect of genus of species of trees on
land used for afforestation:
2.5.1.
For the purposes of determining the
lawfulness and extent of existing lawful water uses in respect of
stream flow reduction activities
in terms of the provisions of the
NWA:
(a)
on a proper interpretation of the Forest Act 122
of 1984 (“the 1984 Forest Act”), alternatively the 1984
Forest Act
and the Forest Act 72 of 1969 as amended in 1972 (‘the
1968 Forest Act”) and of the planting permits issued in terms
thereof, any reference to genera or species of trees in the planting
permits does not limit such existing lawful water use to such
genera
or species;
(b)
the genus or species of trees utilised for
commercial afforestation, which afforestation had been established
prior to the commencement
of the qualifying period or was in the
process of being established at any time during the qualifying
period, cannot be taken into
consideration
.
2.5.2.
The order set out in
2.5.1 above will not affect specific permits containing provisions
expressly therein described as conditions
prohibiting genus exchange
without written approval from the relevant authority and shall not be
regarded as a review of any such
permits.
2.5.3.
Whenever genera or species of trees used
for commercial afforestation are changed, the respondents are not
entitled to insist, during
the verification process, that the area of
land authorised for commercial afforestation be reduced in extent.
2.5.4.
The exchange of genera or species of trees
does not constitute a water use as envisaged in section 21 of the NWA
and genera, species,
and clones of trees used for commercial
afforestation may be exchanged without the need for authorisation in
terms of the NWA.
2.5.5.
The order set out
in 2.5.4 above will not affect licences or specific permits
containing provisions expressly therein described
as conditions
prohibiting genus exchange without written approval from the relevant
authority and shall not be regarded as a review
of any such licences
or permits.
3.
The respondents shall
pay the applicant’s costs on a party and party scale, save for
the costs associated with the two interlocutory
applications heard on
6 February and on 25 March 2020 respectively, which costs shall be
paid by the second and third respondents
on an attorney and client
scale. All costs shall include the costs of two counsel where so
used.
Hockey
AJ
Appearances:
For the
applicant: Adv WH van
Staden (SC), and
Adv A la Grange (SC)
Instructed by -
Hannes Pretorius Bock & Bryant
For
the respondents: Adv M Mphaga (SC), and
Adv
P Loselo
Instructed
by – the State Attorney, Cape Town