Constitutional Court supports forestry industry’s long-held legal positions on water legislation

JOHANNESBURG – SEPTEMBER 10, 2024 – The Constitutional Court Judgement has found that it is not in the interests of justice to grant the Department of Water and Sanitation (DWS) leave to appeal the Supreme Court of Appeal’s ruling, which found in favour of Forestry South Africa (FSA).

The ruling finally puts an end to a five-year legal dispute between the DWS and FSA, over:

1. The Existing Lawful Water Use (ELWU) status of plantations established prior to the National Water Act (NWA) being enacted on 01 October 1998.
2. The rights of owners to freely exchange tree genera (Genus Exchange) in these plantations, without any requirement to reduce the planted area.
3. The DWS so-called “use it or lose it” policy.

While the court case was initiated five years ago, this was preceded by 15 years of active engagement by FSA with the DWS, regarding their interpretation of the laws and their regulations on genus exchange. Only when no agreement could be reached did FSA lodge an application to the Western Cape High Court, seeking declaratory orders from the Court on these matters.

The Constitutional Court Judgement upholds the rulings of the Supreme Court of Appeal that found in favour of FSA on both ELWU, Genus Exchange and the so-called “use it or lose it” policy of the DWS.

“Ultimately, this judgement means that no one can instruct a plantation manager to remove or even reduce their plantation area from what it was in 1998 when the NWA came into effect, as the lawfulness of these plantations has been recognised. It also enables anyone who wishes to replant a forestry area from one genus (type) of commercial trees to another e.g. from pine to gum, is free to do so without having to reduce the area under trees and without having to seek approval from the DWS,” comments Michael Peter, FSA Executive Director.

“In cases where a water use licence states the genus as a condition of the licence, that licence can and should be amended as it is an irregular condition. The finality of the Concourt judgment removes over 20 years of uncertainty that had inhibited investment and restricted economic growth, as well as the employment opportunities that come with this. It also prevents the DWS or its implementing agents from reducing the water use allocation to timber growers from what it was in 1998, irrespective of what they deem to be the current water use at the time of doing any validation and verification exercises.”

“As a Sector, we are excited to move forward and work productively with the DWS to achieve the Public Private Growth Initiative objectives, while maintaining our responsible approach to sustainable water stewardship,” says Peter.

Peter concludes that FSA is pleased that the lengthy court proceedings and outcome have not negatively impacted on the growing relationship with the new senior leadership of the DWS but have instead provided definitive clarity and finality on these important matters. “As a matter of fact, stronger than ever relationships have been fostered between FSA and DWS, specifically with the Director-General Dr Sean Philips and his senior staff within the department. We look forward to building further on this.”

Source: Frog Communications

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