Forestry South Africa v Minister of Human Settlements, Water and Sanitation and Others

Forestry South Africa (FSA), representing timber growers, sought declaratory relief concerning the interpretation of provisions of the National Water Act 36 of 1998 (the Act). The dispute centered on the recognition and scope of existing lawful water use in respect of stream flow reduction activities (flow activity) for commercial afforestation. FSA contended that flow activity constitutes existing lawful water use under s 32(1)(a)(ii) of the Act without requiring authorization under pre-Act law (s 32(1)(a)(i)). FSA also sought clarity on whether the species of trees planted could be regulated under the Act. The Statutory Authorities (the Minister, Department of Water and Sanitation, and catchment agencies) opposed the relief, arguing that lawfulness requires pre-Act authorization and that verification under s 35 permits regulation of tree species. The high court rejected preliminary points, granted some declaratory relief to FSA, but dismissed other relief. Both parties appealed to the Supreme Court of Appeal.

• Whether existing lawful water use in respect of stream flow reduction activity (s 32(1)(a)(ii)) requires authorization under pre-Act law (s 32(1)(a)(i))
• Whether s 34(1)(a) conditions and obligations limit commercial afforestation to specific tree species
• The scope of the power of verification under s 35 of the Act
• Whether genus/species exchange constitutes water use under s 21 of the Act
• Whether verification under s 35 permits regulation of tree species based on water consumption
• The standing of Forestry South Africa to bring the application on behalf of members
• Whether declaratory relief is appropriate given other available remedies

FSA's appeal (777/2022) succeeded. The Statutory Authorities were ordered to pay costs including costs of two counsel. The high court's refusal of the recognition declarator was set aside and replaced with declaratory orders recognizing that: (a) flow activity under s 32(1)(a)(ii) does not require authorization under pre-Act law; (b) s 34(1)(a) obligations and conditions do not limit existing lawful water use for commercial afforestation to specific species, save restrictions from law at Act commencement. In the Statutory Authorities' appeal (824/2022), the appeal was upheld in part and dismissed in part. The Statutory Authorities were ordered to pay FSA's costs including two counsel. Orders 2.5.1(b) and 2.5.4 of the high court were set aside. Order 2.5.1(b) was replaced to clarify that genus/species cannot be considered in verification save for restrictions from pre-Act law attached to the right under s 36(1)(a).

1. Section 32(1)(a) of the National Water Act defines three distinct types of pre-commencement water use: authorized use (s 32(1)(a)(i)), stream flow reduction activity/flow activity (s 32(1)(a)(ii)), and controlled activity (s 32(1)(a)(iii)). Each type has separate definitional content and one type is not defined by reference to another. 2. Flow activity under s 32(1)(a)(ii) read with s 36(1)(a) does not require authorization under old order law (s 32(1)(a)(i)). Flow activity rests on the exercise of existing property rights for commercial afforestation that were neither prohibited nor required authorization under pre-Act law. 3. The conditions and obligations in s 34(1)(a) that attach to existing lawful water use are those existing at the commencement of the Act (backward-looking), not conditions imposed through regulatory powers under the Act (forward-looking, covered by s 34(1)(b) and (c)). 4. Verification under s 35 of the Act verifies existing lawful water use as defined in s 32. For flow activity defined in s 36(1)(a) as 'use of land for afforestation,' the extent of such use is measured by reference to land use, not the volume of water consumed. 5. The verification power in s 35 does not permit the responsible authority to regulate species exchange based on differential water consumption, as this would improperly measure extent by water quantity rather than land use.

The court noted that s 33 of the Act allows for declarations of existing lawful water use beyond pre-commencement use defined in s 32. The court observed that different types of existing lawful water use may require different approaches to measuring 'extent' under s 35, depending on the nature of the activity. The court declined to determine whether s 21's list of water uses is exhaustive, finding it unnecessary to resolve that issue. The dissent observed that it would be imprudent to burden the Act with an interpretation excluding s 35 verification for genus exchange, suggesting the Water Tribunal should determine limits on a case-by-case basis. The majority noted that requiring reviews before declaratory relief would be burdensome and that authoritative interpretation would facilitate resolution of any necessary reviews.

This case provides authoritative interpretation of key provisions of the National Water Act concerning existing lawful water use, particularly for commercial afforestation (stream flow reduction activities). It clarifies the distinction between different categories of existing lawful water use under s 32(1)(a), confirming that flow activity does not require pre-Act authorization. The judgment establishes that verification under s 35 measures the extent of flow activity by reference to land use, not water consumption, limiting the regulatory authority's power to control species exchange through verification. The case demonstrates the court's approach to statutory interpretation in the context of constitutional environmental rights (s 24) and water rights (s 27), balancing property rights recognition with regulatory authority. It clarifies the scope of backward-looking recognition of existing rights versus forward-looking regulatory powers under the Act.