THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Reportable
Case no: 777/2022
In the matter between:
FORESTRY SOUTH AFRICA
APPELLANT

and

MINISTER OF HUMAN SETTLEMENTS,
WATER AND SANITATION

FIRST RESPONDENT

THE DIRECTOR-GENERAL:
DEPARTMENT OF WATER
AND SANITATION
SECOND RESPONDENT

INKOMATHI-USUTHU CATCHMENT
MANAGEMENT AGENCY

THIRD RESPONDENT

BREEDE-GOURITZ CATCHMENT
MANAGEMENT AGENCY
FOURTH RESPONDENT

THE CHAIRMAN OF THE
WATER TRIBUNAL

FIFTH RESPONDENT

AND
Case no: 824/2022
In the matter between:
THE MINISTER OF HUMAN SETTLEMENTS,
WATER AND SANITATION

FIRST APPELLANT

THE DIRECTOR-GENERAL:
DEPARTMENT OF WATER
AND SANITATION

SECOND APPELANT

INKOMATHI-USUTHU CATCHMENT
MANAGEMENT AGENCY

THIRD APPELLANT

BREEDE-GOURITZ CATCHMENT
MANAGEMENT AGENCY

FOURTH APPELLANT

THE CHAIRMAN OF THE
WATER TRIBUNAL

FIFTH APPELLANT

and

FORESTRY SOUTH AFRICA

RESPONDENT
Neutral citation: Forestry South Africa v Minister of Human Settlements, Water
and Sanitation and Others (777/2022) and Minister of Human
Settlements, Water and Sanitation and Others v Forestry South
Africa (824/2022) [2023] ZASCA 153 (15 NOVEMBER 2023)

Coram:
MOCUMIE, MOTHLE and WEINER JJA and WINDELL and
UNTERHALTER AJJA
Heard:

24 August 2023
Delivered:
15 November 2023
Summary:
Statutory Interpretation – Interpretation of s 32 of the
National Water Act 36 of 1998 read with ss 4, 21, 22, 33, 34, 35 and 26 – whether
lawfulness is a requirement for the verification of an existing lawful use
contemplated in s 32(1)(a)(ii) read with s 36(1) of the 19 National Water Act –
correct interpretation of the concept ‘existing lawful water use’ in relation to a
‘stream flow reduction activity’ as defined and referred to in s 32 of the National
Water Act.

ORDER

On appeal from: Western Cape Division of the High Court, Cape Town (Hockey
AJ, sitting as court of first instance):
In the appeal under SCA case no 777/22:
1.1
The appeal succeeds.
1.2
The first to fifth respondents are ordered to pay the appellant’s costs of appeal,
such cost to include (a) the cost of the application for leave to appeal and (b) the
costs of two counsel, where so employed.
1.3
Paragraph 1 of the order of the high court is set aside and replaced with the
following:
‘It is declared that:
(a)
An existing lawful water use in respect of a stream flow reduction activity
referred to in section 32(1)(a)(ii) of the National Water Act, 36 of 1998 (‘the
Act’), in respect of the use of land for afforestation which had been or was
being established for commercial purposes as contemplated in s 36 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 s 32(1)(a)(i) of the Act;
(b)
The obligations and conditions referred to in s 34(1)(a) of the National Water
Act 36 of 1998 (the Act) do not limit existing lawful water use of stream flow
reduction activities for commercial afforestation in respect of the planting of
specific species or genera of trees, save in so far as such restriction attached
to the rights to undertake these activities by reason of conditions or obligations
arising from law of application at the commencement of the Act.’
In the appeal under SCA case no 824/22:

2.1
The appeal is upheld in part and dismissed in part.
2.2
The appellants are ordered to pay the respondent’s costs of appeal, such costs
to include (a) the cost of the application for leave to appeal and (b) the cost of two
counsel, where so employed.
2.3
The orders of the high court made in paragraphs 2.5.1 b) and 2.5. 4 are set
aside, and paragraph 2.5.1 b) is replaced with the following order:
‘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 by the responsible authority to verify the
lawfulness or extent of an existing flow activity, save that in determining lawfulness
in terms of s 35 of the National Water Act, a responsible authority may consider
whether the activity was subject to any conditions or restrictions as to the genus or
species of trees that may be planted, deriving from law that was of application at the
commencement of the National Water Act and attached to the right to use land for
afforestation, as provided for in s 36(1)(a).’

JUDGMENT

Unterhalter AJA (Weiner JA and Windell AJA concurring):

Introduction
[1] We have two appeals before us. They have been consolidated, and were heard
together. The first appeal is that of Forestry South Africa (Forestry SA). Forestry SA
is a voluntary association, registered as a non-profit organisation. It represents the
interests of timber growers in South Africa. Forestry SA brought an application

before the Western Cape Division of the High Court, Cape Town (the high court),
in which it sought declaratory relief. That relief was to secure a definitive
interpretation of certain provisions of the National Water Act 36 of 1998 (the Act).
Forestry SA cited the Minister of Human Settlements, Water & Sanitation
(the Minister), the Department of Water and Sanitation (the Department), together
with catchment agencies to which powers have been assigned under the Act, and the
Water Tribunal, the body to which appeals lie in terms of s 148 of the Act. These
parties enjoy powers under the Act, and I refer to them collectively as the Statutory
Authorities.

[2] The Statutory Authorities opposed the declaratory relief sought by Forestry
SA, and sought its dismissal. In doing so, the Statutory Authorities raised a number
of preliminary points that they contended were dispositive of the application. The
Statutory Authorities also filed affidavits on the merits.

[3] The high court (per Hockey AJ) dismissed the preliminary points; it granted
certain of the declaratory relief sought by Forestry SA; dismissed other declaratory
relief; and made an order for costs against the Statutory Authorities.

[4] Forestry SA sought leave to appeal the declaratory relief that was dismissed
by the high court. The Statutory Authorities sought leave to appeal the preliminary
points rejected by the high court, and the declaratory relief that was granted by the
high court in favour of Forestry SA. The high court gave leave to appeal to this
Court. The appeals proceeded as separate appeals, but, as indicated, were
consolidated and heard together. I shall refer to the appeals as the Forestry SA appeal
and the appeal of the Statutory Authorities.

[5] The Forestry SA appeal raises two principal issues. Both issues require us to
interpret provisions of the Act that bear upon the rights of members of Forestry SA
to grow and harvest timber. The first issue arises from Part 3 of the Act. Part 3
defines and regulates existing lawful water uses. Among those uses is stream flow
reduction activity (flow activity). Flow activity is defined in s 36 of the Act. It is ‘the
use of land for afforestation which has been or is being established for commercial
purposes’ and an activity that has been declared as such by the Minister under s 36(2)
of the Act.

[6] Flow activity is a concept introduced into our law by the Act. Prior to the Act,
as we shall observe, the statutory regime under which commercial forestry was
regulated may fairly be described as light-touch regulation. The Act, however,
recognises that commercial forestry is an activity that uses water. It may affect
stream flow, and this might warrant regulatory intervention. This conceptual
innovation is of a piece with the larger purposes and design of the Act. The use of
water is not simply an incident of private ownership. The Act proceeds from the
following foundational principles: the government is the public trustee of the
nation’s water resources; the Minister must ensure that water resources are protected
and used in a sustainable and equitable manner in the public interest; and, to this
end, the Minister has the power to regulate the use, flow and control of all water in
the Republic.1 The Act contains detailed provisions that demarcate the Minister’s
regulatory remit.

[7] Forestry SA’s appeal concerns, in the first place, the recognition given by the
Act, at its commencement, to the rights of its members to existing water use and the

1 Section 3 of the Act.

continuation of that use. More specifically, Forestry SA sought a declaratory order
that water use that is flow activity is not subject to authorisation by or under any law
which was in force immediately before the commencement of the Act. I shall refer
to this as the recognition issue.

[8] The high court declined to make this order. It held that the water use
recognised in s 32(1)(a)(ii), being flow activity, must be lawful water use, and not
merely use which took place in the qualifying period, stipulated in s 32 to be two
years immediately before the commencement of the Act. The high court also refused
the declaratory order sought by Forestry SA in the exercise of its discretion.

[9] The second issue in Forestry SA’s appeal arises in this way. Forestry SA
framed its notice of motion on the basis that if it was entitled to a declarator in respect
of the recognition issue, it also sought further declaratory relief. Section 34 of the
Act provides that a person may continue with an existing lawful water use, subject
to any existing conditions or obligations attaching to that use. Forestry SA contended
that in respect of flow use, the conditions and obligations referenced in s 34 do not
limit the planting of specific species (or genera) of trees. It sought a declarator to
this effect. I shall refer to this as the species issue.

[10] The high court, having refused to grant a declarator in respect of the
recognition issue, found that it was not called upon to decide the relief sought on the
species issue. That reading of Forestry SA’s notice of motion was correct. On appeal,
however, Forestry SA seeks both declaratory orders. Counsel for Forestry SA
recognised, however, that the species issue in Forestry SA’s appeal is closely bound
up with the merits of appeal brought by the Statutory Authorities. It will be

convenient to deal with the species issue when I deal with the appeal of the Statutory
Authorities.

[11] The appeal of the Statutory Authorities comprises two parts. In the first part,
the Statutory Authorities press a number of preliminary points which, they contend,
were incorrectly dismissed by the high court. If any one of these preliminary points
is sustained on appeal, then, it was contended, Forestry SA’s appeal must fail and
the appeal of the Statutory Authorities must be upheld. But, if these preliminary
points are not sustained, then the merits of their appeal must be decided. This is the
second part of the Statutory Authorities’ appeal.

[12] The high court granted Forestry SA a number of declaratory orders. The
Statutory Authorities do not persist in appealing all of these orders. However, they
do appeal those declaratory orders granted by the high court that concern the species
of trees utilised for commercial afforestation by those who enjoy existing lawful
water uses on the basis of flow activity. Section 35 of the Act provides for the
verification of existing water uses. The responsible authority may verify the
lawfulness and extent of an existing water use. The orders made by the high court
and appealed are as follows:
‘(a)
that the species of trees utilised for commercial afforestation in respect of use by way of
flow activity cannot be taken into consideration in determining the lawfulness and extent of
existing lawful water uses;
(b)
when species of trees used for commercial afforestation are changed, verification in terms
of s 35 does not permit the responsible authority to require that the area of land authorised for
afforestation be reduced in extent; and
(c)
the exchange of species does not constitute a water use in terms of s 21 of the Act, and
species exchange may take place for the purposes of commercial afforestation without
authorisation in terms of the Act.’

[13] These orders are based upon the interpretation given by the high court to
provisions of the Act that permit of verification. The Statutory Authorities contend
that the responsible authority enjoys the power, under the process of verification, to
limit the species of trees used for commercial afforestation. Moreover, different
species use different quantities of water. Hence, which species are planted, and over
what area, are important matters, over which the Act confers regulatory competence.
The high court held otherwise. Hence the appeal of the Statutory Authorities, which
I will call the regulatory competence appeal.

[14] I proceed in the following way. First, I consider the preliminary points raised,
and still pursued, by the Statutory Authorities, and whether any one of these points
disposes of both appeals. If I do not so hold, I will proceed to the recognition issue
that forms part of the appeal of Forestry SA. I will then engage the regulatory
competence appeal of the Statutory Authorities, and the species issue that forms the
other appeal of Forestry SA.

The preliminary points
[15] The Statutory Authorities press a number of preliminary points before us.
They contend that these issues are determinative of the appeals, and so I commence
with them. They were rejected by the high court. The Statutory Authorities submit
they should not have been.

Standing
[16] The Statutory Authorities challenged the standing of Forestry SA to have
sought declaratory relief. The Statutory Authorities contend that Forestry SA has
failed to establish its standing, whether in its own interest, in the public interest, or

in the interests of its members. In essence, the Statutory Authorities sought to
persuade us that the members of Forestry SA could and should have appealed, in
terms of s 148 of the Act to the Water Tribunal, against specific decisions that have
been taken that bear upon the interests of its members. Forestry SA lacked standing
to seek declaratory relief on behalf of its members, when those members could have
sought relief directly before the Water Tribunal. Furthermore, not all members of
Forestry SA are affected in the same way by the declaratory relief that is sought, and
some may not be affected at all.

[17] This objection merges two separate issues. The first is whether Forestry SA
has standing to seek declaratory relief on behalf of its members. The second is
whether that relief is appropriate relief, given other statutory remedies available
under the Act.

[18] Forestry SA explained in its founding affidavit that it was seeking declaratory
relief on behalf of its members because an authoritative interpretation of certain
provisions of the Act bears upon their constitutional rights, including the right to
property and the equal protection of the law.

[19] Forestry SA represents timber growers in South Africa. Its application was
not only brought in its own interests, but on behalf of its members. Section 38 of the
Constitution has considerably extended the common law’s recognition of standing.
Section 38(e) of the Constitution permits an association, acting in the interests of its
members, to approach a competent court to seek appropriate relief, including a
declaration of rights, on the basis that members’ rights in the Bill of Rights are
threatened. Forestry SA and the Statutory Authorities have opposed interpretations
of provisions of the Act that bear upon the rights of members, including their existing

use rights to water. These rights fall within the ambit of property rights protected by
s 25 of the Constitution. In my view, Forestry SA has standing, on behalf of its
members, to approach a court to seek an authoritative declaration as to the correct
interpretation of the Act, and thereby determine the scope of the property rights of
its members. That is precisely what s 38(e) recognises. There is no constitutional
challenge made to the Act. But I can see no reason why, in a case of this kind, which
seeks an authoritative interpretation of legislation that affects important rights, an
association such as Forestry SA should not enjoy standing on behalf of its members.
It is a warranted extension of the standing recognised in s 38(e) of the Constitution

[20] The application of Forestry SA has much utility. It avoids a plethora of
applications by timber growers that would be costly, take up much court time, and
may give rise to inconsistent interpretations. What Forestry SA has sought to do is
to have one authoritative interpretation that will bind its members and the Statutory
Authorities. There is no want of standing on the part of Forestry SA to secure such
an outcome on behalf of its members. It is also difficult to understand how certain
members of Forestry SA are not affected by the declaratory relief that is sought. All
the members of Forestry SA fall within the regulatory remit of the Act, and the
provisions of the Act that give rise to contested interpretations have application to
these members.

[21] Whether members of Forestry SA enjoy other remedies before an
administrative tribunal, such as an appeal to the Water Tribunal, does not decide the
standing of Forestry SA to seek declaratory relief on behalf of its members. The
question of remedies may have a bearing upon whether declaratory relief should be
granted by a court, when other remedies are available. But that is not an issue of

standing, but, rather, whether the particular relief that is sought should be granted.
And that is a matter to which I will come.

[22] However, the objection based on standing was correctly rejected by the
high court. Forestry SA was entitled to approach the high court on behalf of its
members.

A declaratory order is not an appropriate remedy
[23] The Statutory Authorities contend that the high court should not have granted
declaratory relief because it is not appropriate relief in this case. And it would seem
that this criticism is also levelled against the declaratory relief that the high court
dismissed, that is now on appeal before us. The objection comes to this. The
declaratory relief amounts to the review of permits and licences that permitted the
planting of certain species of trees. Yet no review has been brought. The discretion
to grant declaratory relief was thus not properly exercised by the high court because
declaratory relief cannot undo the permits and licences that are already in place, nor
the notices given under the Act. If there is to be a challenge to these permits, licences
or notices, they must be reviewed and set aside. Until that is done, declaratory relief
should not (and cannot) be granted.

[24] Forestry SA’s notice of motion was framed in a somewhat confusing fashion.
It sought an order, the introductory words of which are as follows:
‘Review of the administrative actions which underpin the decision to which the following
declaratory orders relate, by declaring that . . . .’
While the founding affidavit goes on to identify the process of validation and
verification of water use undertaken by certain of the Statutory Authorities, and
notices issued, no administrative actions are sought to be set aside by way of review.

Rather, the actions of the Statutory Authorities are referenced in order to explain the
disputed issues of legal interpretation concerning the Act, in respect of which
Forestry SA seeks declaratory relief. Hence, the objection of the Statutory
Authorities that declarators cannot issue until identified administrative action has
been taken on review, and has been set aside.

[25] The Statutory Authorities are correct that, in substance, no review was brought
by Forestry SA to set aside identified administrative action. But, in my view, that
did not prevent Forestry SA from seeking declaratory relief. There is a live dispute
between the members of Forestry SA and the Statutory Authorities as to how specific
provisions of the Act bear upon the regulatory remit of the Statutory Authorities.
The resolution of that dispute does not depend upon particular administrative action
taken by the Statutory Authorities. The dispute concerns the powers enjoyed by the
Statutory Authorities derived from the Act. True enough, any declaratory relief that
is granted will not of itself cause any administrative action that has been taken to be
set aside. Such actions will survive the grant of declaratory relief. But this does not
mean that such declaratory relief cannot be granted. It can. Such relief decides what
powers the Act confers upon the Statutory Authorities. If, as a result, the legality of
certain administrative actions are called into question, then review proceedings may
have to issue to have them set aside. This does not prevent the grant of declaratory
relief. At best, the consequences of such grant for the validity of administrative
actions may be taken into account when the court exercises its discretion as to
whether to grant declaratory relief. In this case, rather than inundate the courts or the
Water Tribunal with challenges to particular administrative actions, it seems sensible
to have the issues of statutory interpretation resolved in a single, binding
adjudication.

The absence of review proceedings
[26] Closely connected to the objection just considered, the Statutory Authorities
complain that the members of Forestry SA were required to bring review
proceedings to set aside those administrative actions to which they were made
subject. For the reasons given, I do not consider review to have been a necessary
first step. Many decisions may have been taken that affect members of Forestry SA.
Neither by reason of principle or practicality must reviews have issued and been
decided before declaratory relief was sought to determine the disputed questions of
legal interpretation. Such a requirement would be burdensome. More importantly,
as I have explained, once an authoritative interpretation is given by the courts, many
reviews, if they must be brought at all, would be decided with little difficulty, and,
if reason prevails, without opposition. This objection must also fail.

The collateral challenge is inappropriate
[27] The Statutory Authorities cast this objection in two ways. First, that Forestry
SA should not have been permitted to make a collateral challenge to the actions of
the Statutory Authorities. Second, that the members of Forestry SA were required to
exhaust their internal remedies in terms of s 7(2) of the Promotion to Administrative
Justice Act (PAJA),2 since verification of a water use under s 35 of the Act (one of
the issues raised on the merits) is subject to a statutory appeal before the Water
Tribunal in terms of s 148 of the Act.

[28] As to the first point, Forestry SA did not bring a collateral challenge. It did
not raise a defence to a coercive action taken or threatened against its members by

2 Promotion of Administrative Justice Act 3 of 2000.

the Statutory Authorities. Rather, Forestry SA sought declaratory relief to resolve
disputed questions of interpretation. That is not a collateral challenge.

[29] As to the second point, s 7(2) of PAJA is only of application when a court is
moved to review an administrative action in terms of PAJA. As I have already made
plain, while Forestry SA does reference a review in its notice of motion, in substance
it does not seek to review any particular administrative action. Hence, s 7(2) is not
of application. But even if, in some broader sense, the declaratory relief sought by
Forestry SA is considered to be some species of review, there would be no point to
insist that the matter first go to the Water Tribunal. In terms of s 149 of the Act,
appeals on points of law from the Water Tribunal lie to the high court. To require
that disputes on questions of law must first be determined by the Water Tribunal is,
at least in this case, an exercise of cumbersome redundancy. This objection also fails.

Disputes of fact
[30] The final preliminary point pressed by the Statutory Authorities is this.
Among the issues raised by this case is the question of genus exchange. That is, the
exchange by growers of one species of tree for another. The Statutory Authorities
contend that such exchange affects the use of water, and the extent of flow reduction.
There are disputes on the papers between experts as to the impact of genus exchange
(for example the planting of eucalyptus in place of pine) upon flow reduction. The
Statutory Authorities complain that the high court should have declined to decide
the case, given the disputed evidence on the papers, or, at least, referred the matter
to the hearing of oral evidence.

[31] There are two answers to this point. The first is whether the declaratory relief
turned on the need for the high court to make findings on the disputed evidence. In

my view, as I will explain, it did not. Second, in so far as the high court was willing
to proceed to decide the matter, even in the face of disputed evidence, it could do so,
applying the principles in (Plascon-Evans Paints (TVL) Ltd. v Van Riebeck Paints
(Pty) Ltd (Plascon Evans).3 And so can we, should it be necessary. This objection
does not prevent an adjudication of the merits, and thus falls to be rejected.

The recognition issue
[32] As I have outlined, the Act brought about a fundamental change to the way in
which water is to be regulated as a resource over which the national government
must discharge the duties of a public trustee. The regulatory remit of the Act must
necessarily proceed by affording an answer to the following issue: what rights of
existing water use that derive from the law that was of application before the
commencement of the Act are recognised under the Act and on what basis should
such use continue? The provisions of the Act that determine this issue have
occasioned differences of interpretation, more especially in respect of flow activity.
Put simply, while the Act subjects recognised types of existing lawful water use to
regulation under the Act, what is the contents of the right to flow activity, as one
type of existing lawful water use recognised by the Act? I turn to consider this
question.

[33] Section 32 of the Act defines two classes of existing lawful water use. The
first is a water use which has taken place at any time during a period of two years
immediately before the date of commencement of the Act. I shall refer to such water
use as pre-commencement water use. Pre-commencement water use recognises three
types of use (set out in s 32(1)(a)(i)(ii)(iii)). The second class of existing lawful

3 Plascon-Evans Paints (TVL) Ltd. v Van Riebeck Paints (Pty) Ltd [1984] 2 All SA 366 (A); 1984 (3) SA 623; 1984
(3) SA 620.

water use is one which has been declared an existing lawful water use under s 33 of
the Act. Section 33 permits a person to apply to a responsible authority (as defined
in the Act) to have a water use that is not a pre-commencement water use declared
to be an existing lawful water use. And a responsible authority may also make such
a declaration on its own initiative. In other words, to the extent that there are existing
lawful water uses not captured by the definitions of pre-commencement water use,
s 33 allows for additional declarations of such use.

[34] Section 32(1)(a) recognises three types of pre-commencement water use.
First, there is water use that ‘was authorised by or under any law which was in force
immediately before the date of commencement of this Act’ (s 32(1)(a)(i)). I shall
refer to this water use as authorised water use. Second, there is water use that ‘is a
stream flow reduction activity contemplated in section 36(1)’ (s 32(1)(a)(ii)). I have
referred to this as flow activity. Lastly, there is water use that is a controlled activity
as contemplated in s 37(1). Section 37(1), in turn, defines five sub-categories of
controlled activity. I shall refer to these, collectively, as controlled activity.

[35] Forestry SA sought the following declarator:
‘6.1
An existing lawful water use in respect of 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); . . . .’

[36] This declarator is concerned to clarify what constitutes flow activity. Flow
activity are those activities contemplated in s 36(1). Section 36(1), in turn,
contemplates two activities. The first is ‘the use of land for afforestation which has

been or is being established for commercial purposes’ (s 36(1)(a)). I will refer to this
activity as commercial afforestation. The second is ‘an activity which has been
declared as such under subsection (2). Section 36(2) confers the power on the
Minister to declare any activity a flow activity. The Minister may do so in respect of
the cultivation of a particular crop or other vegetation. But these activities do not
exhaust the use of this power.

[37] The point of Forestry SA’s declarator will now be apparent. Forestry SA’s
members engage in commercial forestry. One existing lawful water use recognised
by the Act is flow activity that constitutes commercial afforestation (s 32(1)(a) (ii)
read with s 36(1)(a)). Is the recognition of commercial afforestation as an existing
lawful water use under the Act subject to the requirement that such use was
authorised by or under any law in force immediately before the commencement of
the Act?

[38] Forestry SA contended that there is no such requirement. The Statutory
Authorities interpret the Act to mean that the recognition of flow activity, as an
existing lawful water use, requires that the flow activity must have been lawful in
terms of the laws that were of application during the qualifying period of two years
specified in s 32(1)(a). If the flow activity was not lawful in that period, they submit,
it is not made so in terms of the Act. The high court held that the types of pre-
commencement water use, in terms of s 32(1)(a), are distinct, but such water use
must be lawful. Pre-commencement water use is subject to lawfulness, the high court
held, and on this basis declined to grant the declarator sought by Forestry SA.

[39] The interpretative exercise must commence with the three types of pre-
commencement water use that s 32(1)(a) of the Act recognises: authorised use, flow

activity, and controlled activity. They are distinct because each type of activity
derives from a different legislative basis, and hence is a distinct legal category of
use. A controlled activity is an activity described under one of the categories set out
in s 37. A flow activity is one contemplated in s 36(1). An authorised activity is, in
terms of s 32(1)(a)(i), authorised by, or under, any law which was in force
immediately before the date of commencement of the Act (which I shall refer to as
old order law).

[40] The legislature defined three types of pre-commencement water use, and
thereby gave recognition to each as an existing lawful water use. A water use
qualifies as a lawful water use if it falls within any one of the defined types. Coherent
interpretation requires that a separate definitional content is attributable to each of
the types. That is to say, one type of pre-commencement water use is not defined by
recourse to another type of use. It follows that the definition of flow activity does
not import the requirements of authorised use. A water use may be recognised as
flow activity without that activity being one that was authorised by or under old
order law. Logically, the typology of s 32(1)(a) allows that water use may qualify as
an existing lawful water use, even if it was not authorised use in terms of
s 32(1)(a)(i). That is so because an existing lawful water use may be a flow activity
or a controlled activity. The importation of the requirement for authorised use into
flow activity or controlled activity cannot be sustained because it would muddle the
three types of pre-commencement water use that the Act has been so careful to
delineate.

[41] This interpretation appears to raise a conundrum with which the high court
wrestled. If an existing lawful water use recognises types of use that are not
authorised use, surely use as flow activity must nevertheless have been lawful in

order to qualify as an existing lawful water use? The high court considered this to
be so, and found support for this interpretation in s 4(2) read with s 34(1).
Section 4(2) provides that a person may continue with an existing lawful water use,
in accordance with s 34. And s 34(1), in turn, provides that a person, or that a
person’s successor in title, may continue with an existing lawful water use, subject
to any existing conditions or obligations attaching to the use or any other limitation
or prohibition by or under the Act. That existing lawful water use cannot escape the
requirements of legality led the high court to refuse Forestry SA’s declaratory relief
that was directed to the recognition issue.

[42] While the high court correctly observed that authorised use does not exhaust
what constitutes an existing lawful water use under s 32(1) of the Act, engrafting
lawfulness as a constitutive requirement of flow activity, though seemingly self-
evident, gives rise to redundancy in the interpretation of s 32(1)(a).

[43] To see why this is so, I revisit what is meant by authorised use. Conceptually,
and ordinarily, authorisation is a permission to do something, given by an authority
that enjoys the power to authorise the doing of that thing. Sometimes, absent
authorisation, the authority has prohibited all activity of a particular kind. But that is
not always how authorisation takes place. An authority may require that permission
is given to engage one aspect of an activity, whereas other aspects of that activity
require no authorisation, and hence are subject neither to prohibition nor
authorisation.

[44] The legislation which was of application to commercial forestry prior to the
commencement of the Act, which formed part of old order law, was rather modestly
concerned with the regulation of commercial forestry, and even less concerned with

the effects of commercial forestry upon water use. Commercial forestry was one
type of land use, and, subject to legislation enacted from time to time, was an
exercise of common law rights to property. It is unnecessary to trace the entire
development of this legislation. However, relevant to the scope of authorisation
under old order law, the Forest Act No 72 of 1968 was amended by the Forest
Amendment Act 46 of 1972. This amendment introduced the following provision:
‘4A. (1)(a) Without the prior written approval of the Secretary, no land which has not previously
been afforested, may be utilized for the planting of trees, save fruit or fodder trees, with a view to
producing forest produce for commercial or industrial purposes.’
The Forest Act 72 of 1968, as amended, was repealed by the Forest Act 122 of 1984.
The Forest Act of 1984 contained s 7(1) and s 8 which read as follows:
‘7. (1) Without the prior written approval of the director-general no land, including land in the
possession of the State –
(a) which has not been used previously for the establishment and management of a commercial
timber plantation; or
(b) which for a period of five years after the removal, harvesting or destruction of a commercial
timber crop, has not been used, may be used for the planting of trees to produce timber for
commercial or industrial purposes.
. . .
8. (1) The Minister may in respect of land which in terms of this Act is being or may be used for
the planting of trees to produce timber, by notice served on the owner of that land or by notice in
the Gazette, prohibit the planting of trees within an area defined in the notice of the reafforestation
of such an area after the harvesting or destruction of a timber crop or prohibit any other act or
direct the owner to take any other steps which in the opinion of the Minister are necessary for the
protection of any natural water source.
(2) An owner of land shall not permit the regeneration of a commercial timber plantation on any
part of his land in respect of which a notice in terms of subsection (1) applies, after an existing
timber crop has been harvested or destroyed.’
The Forest Act, 1984 was in force immediately prior to the commencement of the
Act, and was repealed by the Act.

[45] Section 7(1) of the Forest Act of 1984 was a provision that required the
approval of the director general for the planting of trees to produce timber for
commercial or industrial purposes in two circumstances: on land not previously used
for the establishment and management of a commercial timber plantation, and where
land was not so used, for a period of more than five years, after the removal,
harvesting or destruction of a commercial timber crop.

[46] The important feature of s 7(1) was that land use for commercial afforestation
was prohibited in respect of two defined types of land use, absent authorisation. But,
outside these defined land uses, commercial afforestation required neither
authorisation, nor was it subject to prohibition in terms of the Forest Act of 1984.
Section 8 stipulated the powers of Minister to prohibit the planting of trees to
produce timber in defined areas to protect natural water resources.

[47] Under old order law, prior to the commencement of the Act, commercial
forestry thus fell into one of three categories. First, certain land was prohibited from
being used for commercial forestry. Second, land subject to prohibition in terms of
s 7 of the Forest Act of 1984 could be used to plant trees for commercial or industrial
purposes, only if written approval was given. Third, there was land that was not
subject to any prohibition of commercial forestry in terms of the Forest Act of 1984,
and such land was used for commercial afforestation as an exercise of private
property rights.

[48] This brief exposition of old order law clarifies the derivation of the types of
pre-commencement water use defined by the Act. An authorised use in respect of
commercial forestry is a use enjoyed by reason of the approval given to plant trees

for commercial purposes by the relevant authority under the old order law. Section 7
of the Forest Act is a clear instance of such authorised use. Flow use, by contrast,
references the use of land for afforestation established for commercial purposes
(within the meaning of s 36 of the Act) that was not subject to prohibition nor
authorisation under old order law, and was so used as an exercise of existing property
rights.

[49] So understood, the pre-commencement water use recognised by the Act was
not making lawful what had been unlawful commercial afforestation prior to the
commencement of the Act. A farmer who planted timber in an area that prohibited
such land use under old order law, enjoyed no right to do so, and acquired no right
to do so under the Act. However, as I have endeavoured to explain, the regime of
old order law did not divide into prohibited land use and authorised land use in
respect of commercial forestry. Rather, there was prohibited land use, authorised
land use, and land use that was neither prohibited nor authorised, but constituted an
exercise of existing property rights. Flow use is thus the use of land for commercial
afforestation which immediately before the commencement of the Act rested upon
the exercise of existing property rights.

[50] What s 4(2) read with s 34(1) of the Act does is to permit a person (or that
person’s successor in title) to continue with an existing lawful water use that is
recognised in terms of s 32. Although not framed in the language of rights, s 34(1)
is premised on the requirement that persons who may continue ‘with an existing
lawful water use’ are those who at the commencement of the Act have rights to such
use. Hence the description of the class of persons who may continue to use extends
to successors in title. The title to which they succeed is the right of the person to the
lawful water use recognised in terms of s 32.

[51] Section 34 also makes plain that those who may continue to enjoy the rights
of lawful use recognised by the Act do so subject to a number of stipulations set out
in s 34(1). First, continued use is subject to any existing conditions or obligations
attaching to that use. This is a status quo provision. It provides that persons who may
continue an existing lawful water use enjoy their right to do so under whatever
conditions or obligations attach to such right. These conditions or obligations may
derive from private law obligations or public law conditions. The Act does not
absolve the person who holds that right from their duties to observe these obligations
or conditions, to the extent that they remain binding. Second, and this is the central
object of the Act, the rights of continued use recognised under the Act are made
subject to the extensive regulatory powers to be found in the Act that may be
exercised to fulfil the expansive objects of the Act.

[52] The interpretation of the Act that I favour has the following attributes. First,
it holds separate the clear distinction that the Act crafts between authorised use and
flow activity. Second, it does not make the definition of flow activity subject to some
vague and undefined concept of lawfulness. Rather, flow activity is a distinct use
right that rests upon the exercise of existing property rights under old order law.
Third, it clarifies that the definition and recognition of existing lawful use does not
absolve a person who would continue to exercise their rights of existing lawful use
to do so subject to the conditions and obligations that attached to those rights. Fourth,
it makes plain that the rights of lawful water use that are recognised and may
continue to be used become subject to the exercise of the considerable regulatory
powers of the Act. The Act’s recognition of existing water use rights does not
immunize these rights from the regulatory remit of the Act. And lastly, it
demonstrates that the conundrum that so troubled the high court is not a puzzle at

all. Once existing lawful water use is framed under the discipline of rights, the
problem of lawfulness evaporates.

[53] It follows therefore that Forestry SA should have been granted the declarator
that it sought in paragraph 6.1 of its notice of motion. That order is framed on the
simple premise that flow use 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 Act. On the interpretation I have given to the Act that premise is correct. The
high court was in error to refuse the grant of this declarator. It declined to do so
because its interpretation of the Act was incorrect. That being so, there was also no
warrant to refuse the declarator as an exercise of discretion. The issue that has arisen
as to the interpretation of the Act is most usefully resolved by way of declaratory
relief. And Forestry SA’s appeal is upheld on this aspect of the appeal before us.

The species issue
[54] It will be recalled that the species issue engages relief that was sought by
Forestry SA, but declined by the high court. The species issue also concerns orders
that were made by the high court, and are appealed before us by the Statutory
Authorities.

[55] Forestry SA’s notice of motion was framed on the basis that if an order was
granted as to flow activity and authorisation, then it sought a further declarator. This
declarator reads as follows :
‘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.’

Since the high court refused Forestry SA’s order as to flow activity and
authorisation, it was not called upon to decide whether to grant this further relief. I
have found that Forestry SA is entitled to the declarator it sought as to flow activity
and authorisation, and hence the further declaratory relief falls for our consideration.

[56] The Statutory Authorities confirmed that they no longer appealed all the relief
granted by the high court in favour of Forestry SA, but the following orders remain
subject to challenge on appeal:
‘2.5
In respect of genus of species of trees on land use 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
N[ational] W[ater] A[ct];
. . . .
b)
the genus of species of trees utilised for commercial afforestation, which
afforestation had been established prior to the commencement of the
qualifying period, cannot be taken into consideration.
. . . .
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 N[ational] W[ater] A[ct] and genera, species, and
clones of trees used for commercial afforestation may be exchanged without the
need for authorisation in terms of the N[ational] W[ater] A[ct].’

[57] These orders raise issues as to the powers under the Act to regulate the species
of tree planted and the exchange of species in the planting of trees. I have observed
that the structure of the Act is organised in the following way. First, to define existing

lawful water use and provide for its continuation. Second, to confer powers under
the Act to regulate such recognised use. The species issue concerns the powers
conferred in terms of the Act to regulate what species are planted by persons who
enjoy the right to continued existing lawful water use.

[58] I commence with the declaration that was declined by the high court, set out
in paragraph 57 above. I will refer to this declarator as the s 34 species declarator.
This relief seeks to make clear that the entitlement to continue with existing lawful
water use, though subject to any existing conditions or obligations attaching to such
use, does not limit flow activity to the planting of specific species of trees.

[59] Section 32, as I have observed, defines those categories of existing lawful
water use that are recognised under the Act. Among the categories recognised is flow
use. Section 34 determines that an existing lawful water use may continue, subject
to demarcated authority. That authority is of three kinds. The first is ‘any existing
conditions or obligations’ attaching to the existing lawful water use. The second is
the replacement of such use with a licence required or granted under the Act. That
regime of licences is to be found in Part 7 of the Act, and makes wide-ranging
provision for licensing, including compulsory licensing if that is considered
desirable. Third, s 34 renders existing lawful water use subject to other limitations
or prohibitions by or under the Act.

[60] There is an important distinction between the first kind of authority
(s 34(1)(a)), and the two further kinds of authority (s 34(1)(b) and (c)). The first
concerns the status quo. That is, existing lawful water use recognised as such as at
the commencement of the Act. It is in this sense that the language of the Act refers
to use that is existing lawful water use. Section 32(1)(a) frames such use by recourse

to its definitions and the fact that it took place within the qualifying period. Flow
activity is one type of lawful water use, recognised as at the commencement of the
Act, on the basis of use during the qualifying period.

[61] This is of importance so as to understand the meaning of the authority to which
flow activity is made subject under s 34(1)(a). This provision makes flow use subject
to ‘any existing conditions or obligations attaching to that use’. Existing can only
mean, given the nature of flow activity, existing as at the commencement of the Act.
This is so as a matter of logic. Flow activity is a lawful water use that is recognised
as such at the commencement of the Act. The conditions and obligations attaching
to flow activity must similarly exist at that time. Framed in the language of rights,
the right to flow activity is made subject to the conditions and obligations that limit
those rights. The existing conditions or obligations that attach to the rights must do
so at the time that such rights qualify for recognition under the Act. That is, at the
commencement of the Act.

[62] Sections 34(1)(b) and (c) reference other ways in which the continued use of
existing lawful water use are made subject to regulatory authority. But these
provisions source that regulatory authority in the powers conferred under the Act to
license water use or other limitations introduced by the Act. There is thus an
important distinction in s 34 between backward looking restrictions upon an existing
water use that attach to the recognition of rights at the commencement of the Act,
and forward looking restrictions that come about through the exercise of regulatory
competence conferred by the Act or restrictions that the Act itself imposes upon
existing lawful water use.

[63] The s 34 species declarator would declare that the conditions and obligations
attaching to flow activity, as provided in s 34(1)(a), do not limit commercial
afforestation to the planting of specific species (or genera) of trees. That is too widely
framed. If the conditions and obligations attaching to the rights of flow use limited
the species of trees that may be planted, then the rights to flow activity, recognised
as such under the Act, would be subject to such limitation. I have set out above my
understanding of the statutory provisions that were to be found in the Forest Act of
1984. In addition, there was like legislation that was of application in the ‘States’
that were the incarnation of apartheid infamy. As I have explained, flow activity
does not rest upon authorisation under old order law, and in particular the Forest Act
of 1984. But that does not exclude the possibility that old order law may contain
obligations or conditions that qualify the right to flow activity. These obligations or
conditions, whether arising from private law obligations or statutory provisions that
qualify private law rights to flow activity, fall within the meaning of s 34(1)(a). In
so far as old order law imposed such obligations as to species limitation and
remained of force and effect at the commencement of the Act, these obligations
attach to the authority to continued flow activity. Hence the s 34 species declarator
is too broad.

[64] There was some debate before us as to whether there was old order law that
ever imposed obligations or conditions as to species limitations. I am far from
confident that we were given a sufficiently comprehensive account of that large body
of law, much less all the administrative actions taken under it, to arrive at any safe
conclusion on this score. More prudent would be to fashion the s 34 species
declarator with this known-unknown in mind.

[65] However, the s 34 species declarator is principally directed at the proper
demarcation of the conditions and obligations that are to be found in s 34(1)(a) as
they pertain to flow activity. For the reasons I have given, the conditions and
obligations in s 34(1)(a) are those that attach to the rights of flow activity that are
recognised by the Act at its commencement. These conditions and obligations do not
come about as a result of the exercise of regulatory competences that the Act brought
into being; nor by reason of the imposition of other limitations imposed by the Act.
Those are the categories of authority provided for in s 34(1)(b) and (c). Nor do the
conditions and obligations referred to in s 34(1)(a) constitute authorisation of the
kind set out in s 32(1)(a)(i).

[66] Forestry SA should have been granted declaratory relief, in a modified form,
by the high court to reflect this position, and its appeal succeeds on this score. The
declarator I propose to make is as follows:
‘The obligations and conditions referred to in section 34(1)(a) of the National Water Act 36 of
1998 (the Act) do not limit existing lawful water use of stream flow reduction activities for
commercial afforestation in respect of the planting of specific species or genera of trees, save in
so far as such restriction attached to the rights to undertake these activities by reason of conditions
or obligations arising from law of application at the commencement of the Act ’

The regulatory competence appeal
[67] I turn to the appeal of the Statutory Authorities: the regulatory competence
appeal. The high court granted the following relief:
‘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 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 N[ational] W[ater] A[ct] and genera, species, and
clones of trees used for commercial afforestation may be exchanged without the
need for authorisation in terms of the N[ational] W[ater] A[ct].
2.5.5 The order in 2.5.4 above will not affect licenses 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 licenses or permits.’

[68] The Statutory Authorities appeal the orders in paragraphs 2.5.1 (b), 2.5.3, and
2.5.4. The appeal of the Statutory Authorities engages the proper interpretation of
s 35 of the Act. Section 35 concerns the verification of existing water uses. Its place
in the scheme of Part 3 of the Act is as follows. Section 32 defines existing lawful
water use. Section 34 constitutes the authority to continue such use. Section 35
confers a power upon the responsible authority to verify existing lawful water use.
There is ample regulatory justification to require persons who claim to have an

entitlement to an existing lawful water use to be subject to a process of verification.
And that is what s 35 does.

[69] Section 35 commences as follows, ‘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 verification of that
use . . . .’ The process to be followed is then set out. It culminates in the following
provision in s 35(4):
‘A responsible authority may determine the extent and lawfulness of water use pursuant to an
application under this section, and such determination limits the extent of any existing water use
contemplated in s 32(1).’

[70] A person may claim to enjoy an existing lawful water use. But whether that
claim is good is made subject to verification. The power of verification, in terms of
s 35, permits the responsible authority to verify two dimension of water use. First, is
the claimed water use a lawful existing water use? Such use is defined in s 32, as I
have explained. The question of lawfulness is determined by applying the definitions
of s 32 to the facts that support the claim that is made. Lawfulness is confined to the
definitions in s 32. They demarcate what makes an existing water use a lawful use.
This must be so because Part 3 of the Act is not concerned with wider questions of
legality that may arise from the exercise of the expansive regulatory powers
elsewhere conferred by the Act. Rather, verification as to lawfulness in terms of s 35
is confined to the important question as to whether a claimed existing water use is a
lawful use in conformity with s 32. And the decision of the responsible authority on
this score is binary. The use is either lawful or it is not, depending upon whether it
meets the statutory definitions of s 32.

[71] The second dimension of verification under s 35 concerns the extent of the
existing water use. It is this dimension of verification that has occasioned
contestation between the parties in relation to flow activity and the planting of
species of trees. More particularly, the Statutory Authorities contend that verification
in terms of s 35 may take account of what is referred to as ‘genus exchange’ in
verifying the extent of an existing water use. Genus exchange is the planting of one
species in a place of another. There is a dispute of fact on the papers as to the extent
to which different species planted over an area use different quantities of water and
how to measure such use. It is unnecessary to resolve this dispute because the issue
before us is one of law. It is this: does the extent of an existing water use, being a
flow activity, refer to how much water is used or does it refer to the extent of land
that is used? The Statutory Authorities contend for the first meaning, and
Forestry SA for the second meaning.

[72] This difference is of no small moment. If the Statutory Authorities are correct,
then the responsible authority, under s 35, may verify how much water is used by a
particular flow activity, recognised under s 32. If more water is being used, by
reason, for example, of genus exchange, than the amount permitted by a particular
flow activity, then, in terms of s 35(4), a responsible authority may limit the extent
of water use. For example, the authority may, in terms of s 35(4), decide that, if
eucalyptus uses more water than pine, then the area of permitted planting must be
reduced so as to bring water use within the quantitative limit of lawful use, and hence
the extent of water use attributable to that flow activity.

[73] Forestry SA interprets verification of flow activity, as to extent, entirely
differently. Forestry SA contends that the extent of an existing water use is not
concerned with the quantity of water used, but rather, the extent of the land over

which the flow use takes place. On this interpretation, species exchange is irrelevant
to the exercise of verification in terms of s 35. What is verified is the extent of land
use for planting trees for commercial purposes, and not which species of trees are
planted. Hence, if a responsible authority seeks to use the power of verification to
limit the extent of land that may be planted with a particular species because it
determines that a greater volume of water is thereby used, that would be an
ultra vires exercise of power.

[74] Verification in terms of s 35 is of application to existing water use. As we
have seen, s 32 sets out types of existing lawful water use. One type of existing water
use is flow activity. The others are authorised use, controlled use, and those declared
to be an existing use. When s 35(1) refers to the verification of the ‘extent of an
existing water use’, does it refer to those types of water use defined in s 32 and only
to such use? And if it does, how does that cast light on the meaning to be given to
‘the extent of an existing water use’?

[75] Section 35(1) frames the power to verify in the following language: ‘to verify
the lawfulness or extent of an existing water use’. The language is carefully chosen.
Section 32 defines existing lawful water use. One of the two kinds of verification is
to determine whether an existing water use is lawful. That is an enquiry specifically
directed to the subject matter of s 32 which defines and recognises a particular class
of water use as existing lawful water use. That is not the only water use recognised
under the Act. Section 21 provides that, for the purposes of the Act, water use
includes a list of stated uses. Section 22 stipulates that a person may only use water
under three classes: under stated conditions without a licence, with a licence, and if
the responsible authority has dispensed with a licence requirement.

[76] There was some debate before us as to whether s 21 is a closed list of water
use. That issue need not be resolved because what is plain from ss 21 and 22 is that
in the universe of permissible water use allowed under the Act, existing lawful use
is one particular class of use. It is a distinctive use and its definitional content is to
be found in s 32. Once that is so, it is clear that the language of verification in s 35
does not reference every water use that is permissible under the Act, but the class of
use defined as existing lawful use in s 32. Verification determines that such use is
lawful. And it follows that verification as to extent must also be concerned to
determine the extent of existing lawful water use of the types identified in s 32 to
which any person claims an entitlement. If verification as to lawfulness concerns
water use in s 32, the extent of use does not reference use outside of s 32? To hold
otherwise would introduce an incoherence into the interpretation of the scope of s 35
that is unwarranted.

[77] Accepting, then, as I find, that s 35 verification verifies existing lawful water
use as defined in s 32, what is meant by the extent of such use? Section 32, as I have
explained above, comprises different types of use. The extent of use in s 35 does not,
in my view, have a singular application. All depends on the type of existing lawful
water use to which verification as to extent is of application. So, for example, a
controlled activity includes the intentional recharging of an aquifer with any water
containing waste (s 32(1)(a)(iii) read with s 37(1)(d)). The extent of this water use
may well require an assessment of the volume of waste water that has been
introduced into an aquifer. The measurement of the extent of an activity aimed at the
modification of atmospheric precipitation (s 37(1)(b)) would no doubt require some
ingenuity, and it would be incautious to determine by way of legal interpretation
what might be required to engage this exercise.

[78] We are in this case, however, concerned with flow activity. Flow activity, as
we have seen, is defined in s 36. The definition relevant for this case is to be found
in s 36(1)(a): ‘the use of land for afforestation which has long been or is being
established for commercial purposes’. The plain language of this provision concerns
land use. It does not define flow activity by reference to the volume of water that is
used for commercial afforestation. Once that is so, to measure the extent of flow
activity is to measure in a metric appropriate to the use of land. That measurement
is most obviously done by determining how much land has been or is being used for
commercial afforestation. That is congruent with the definition of flow activity. It is
also consistent with the development of old order law. Though s 8 of the Forest Act
did allow for the protection of natural water sources, the central feature of old order
law was to recognise the use of land for commercial forestry by reason of property
rights or to regulate land use in specific circumstances. With this legacy of old order
law, it is unsurprising that s 36 defines flow activity by reference to land use.

[79] For these reasons, I find that the verification of the extent of flow activity is
measured by reference to land use and not by reference to the amount of water
consumed by an existing flow activity. It follows that if a person is entitled to an
existing lawful water use as a flow activity, the verification of the extent of such use
is measured by reference to the land used, and not the amount of water consumed.
Such verification cannot consider the impact of species exchange upon water
consumption as an incident of determining the extent of flow activity.

The relief claimed
[80] With these issues of interpretation determined, what then is to be made of the
regulatory authority appeal of the Statutory Authorities? That appeal must, in
substance, fail. It is premised on the proposition that s 35 affords a responsible

authority the power, in undertaking verification, to regulate species exchange in
respect of flow activity. I have found, for the reasons given, that this premise is
incorrect.

[81] However, the interpretation of s 35 that I have determined does not permit of
the relief granted by the high court to stand unamended. The wording of this relief
is set out in paragraph [68] above. The declaratory order made by the high court in
paragraph 2.5.1 b) holds good for verification as to the extent of existing lawful
water use in respect of flow activity, but it is too widely cast as to the verification of
lawfulness. That is so because Forestry SA has not established that flow use,
recognised in terms of s 32(1)(a)(ii) read with s 36(1), does not include any
entitlement to such use, deriving from old order law, that specified for the genus or
species of trees that may be planted. This order thus requires modification as follows:
‘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 by the
responsible authority to verify the lawfulness or extent of an existing flow activity, save that in
determining lawfulness in terms of s 35 of the National Water Act, a responsible authority may
consider whether the activity was subject to any conditions or restrictions as to the genus or species
of trees that may be planted, deriving from law that was of application at the commencement of
the National Water Act and attached to the right to use land for afforestation, as provided for in
s 36(1)(a).’

[82] The order made by the high court in paragraph 2.5.3 accords with the
interpretation I have given to s 35, and requires no amendment. As to the order made
in paragraph 2.5.4, this order is widely cast. Section 21 lists eleven types of water
use. The water use for the purposes of the Act is stated in s 21 to include the eleven
types of water use. As I have explained, the parties were at odds as to whether the

eleven uses are exhaustive of water use for the purposes of the Act. I have not found
it necessary to resolve this difference, and for this reason. Although species
exchange is not, in terms, a listed use, one of the listed uses is a controlled activity
declared to be so under s 38(1) of the Act. A controlled activity is not defined in s 1
of the Act. The scope of this power is broad. It is an activity in respect of which the
Minister must be satisfied that it is likely to impact detrimentally on a water resource
(s 38(2)). Whether this power may only be exercised in respect of the lawful existing
water uses defined in s 32(1)(a)(iii) by reason of the reference to such activity in
s 37(1)(e) is not an issue I need to resolve. Even if this is the case, Forestry SA has
not made out the case that such power could not be exercised in respect of the
detrimental impact of species exchange on a water resource. Once that is so, species
exchange may be declared a controlled activity in terms of s 38(1). That is one of
the listed water uses in s 21. Hence, the declaratory order in paragraph 2.5.4 should
not have been made by the high court.

Conclusion
[83] The following conclusions follow from these findings. Forestry SA’s appeal
has prevailed in respect of the recognition issue, and substantially so in respect of
the species issue. Forestry SA is accordingly entitled to the relief it sought in
paragraph 6.1 and 6.1A of its notice of motion. The Statutory Authorities have failed
in their appeal in respect of the regulatory competence issue, save only that the order
of the high court granted under paragraph 2.5.4 cannot be sustained and the order in
paragraph 2.5.1 b) requires some modification. However, Forestry SA has been
substantially successful.

[84] As to the costs of these appeals, they must follow the result. In the appeal of
Forestry SA (case no. 777/22) and the appeal of the Statutory Authorities (case no.

824/22), Forestry SA has succeeded, or substantially so, and is entitled to their costs,
including the costs of two counsel.

[85] In the result, the following order is made:
In the appeal under SCA case no 777/22:
1.1
The appeal succeeds.
1.2
The first to fifth respondents are ordered to pay the appellant’s costs of appeal,
such cost to include (a) the cost of the application for leave to appeal and (b) the
costs of two counsel, where so employed.
1.3
Paragraph 1 of the order of the court below is set aside and replaced with the
following:
‘It is declared that:
(a)
An existing lawful water use in respect of a stream flow reduction activity
referred to in section 32(1)(a)(ii) of the National Water Act, 36 of 1998 (‘the Act’),
in respect of the use of land for afforestation which had been or was being established
for commercial purposes as contemplated in s 36 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 s 32(1)(a)(i) of the
Act;
(b)
The obligations and conditions referred to in s 34(1)(a) of the National Water
Act 36 of 1998 (the Act) do not limit existing lawful water use of stream flow
reduction activities for commercial afforestation in respect of the planting of specific
species or genera of trees, save in so far as such restriction attached to the rights to
undertake these activities by reason of conditions or obligations arising from law of
application at the commencement of the Act.’
In the appeal under SCA case no 824/22:
2.1
The appeal is upheld in part and dismissed in part.

2.2
The appellants are ordered to pay the respondent’s costs of appeal, such costs
to include (a) the cost of the application for leave to appeal and (b) the cost of two
counsel, where so employed.
2.3
The orders of the high court made in paragraphs 2.5.1 b) and 2.5. 4 are set
aside, and paragraph 2.5.1 b) is replaced with the following order:
‘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 by the responsible authority to verify the
lawfulness or extent of an existing flow activity, save that in determining lawfulness
in terms of s 35 of the National Water Act, a responsible authority may consider
whether the activity was subject to any conditions or restrictions as to the genus or
species of trees that may be planted, deriving from law that was of application at the
commencement of the National Water Act and attached to the right to use land for
afforestation, as provided for in s 36(1)(a).’

__________________________
D N UNTERHALTER
ACTING JUDGE OF APPEAL

Mothle JA dissenting (Mocumie JA concurring)

[86] I have read the judgment of Unterhalter AJA (the first judgment), which deals
with two appeals that were heard together, concerning the same parties that litigated
in the high court. I will refer to the parties as identified in the first judgment. The
one appeal was lodged by Forestry SA, and the other by the Statutory Authorities as
described and referred to collectively in the first judgment. I agree with the
background set of facts in the first judgment. I however, do not agree with the order
of the first judgment as regards the appeal by the Statutory Authorities. I would
uphold, in part, the appeal of the Statutory Authorities.

[87] The Statutory Authorities were the respondents in the high court, opposing
the declaratory relief sought by Forestry SA, concerning certain provisions of the
Act. The high court rejected, in part, the opposition by the Statutory Authorities but
upheld some of the relief that they sought. Forestry SA was also successful in part,
and unsuccessful on other relief they sought. The high court granted leave to both
parties to this Court, separately, on the issues where they were not successful. Apart
from the points in limine which were conceded in this Court, the essence of the
appeal by the Statutory Authorities centers on the exercise of the power in s 35 of
the Act. The section provides that the responsible authority may conduct verification
of existing lawful water use.

[88] The Statutory Authorities contend that this verification may be conducted in
instances where there is a change in the species of trees planted in a forest (the genus
exchange). Furthermore, that the ‘genus exchange’ in species of trees or vegetation
contemplated in s 32(1)(a) of the Act, may, in some instances, result in an increase
in the extent of the existing lawful water use, contrary to the permissible existing
lawful water use. Forestry SA argues that the power of verification cannot be used

in instances where, as provided in s 32(1)(a)(ii), there is a stream flow reduction
activity as defined in s 36(1)(a). Section 36(1)(a) of the Act defines the concept thus:
‘[T]he use of land for afforestation which has been or is being established for
commercial purposes. . . .’ It is contended by Forestry SA, that s 36(1)(a) refers to
the use of land and not water use. Therefore, the argument continues, the exercise of
the power of verification refers to the existing lawful water use, and not land use in
terms of s 36(1)(a) of the Act. It will be ultra vires s 35 of the Act. (Emphasis added.)

[89] The first judgment accepts the Forestry SA’s contention and dismisses the
appeal by the Statutory Authorities. The order proposed in the first judgment reads
thus:
‘The orders of the high court made in paragraphs 2.5.1 b) and 2.5.4 are set aside, and paragraph
2.5.1 b) is replaced with the following order:
“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 by the
responsible authority to verify the lawfulness or extent of an existing flow activity, save that in
determining lawfulness in terms of s 35 of the National Water Act, a responsible authority may
consider whether the activity was subject to any conditions or restrictions as to the genus or
species of trees that may be planted, deriving from law that was of application at the
commencement of the National Water Act and attached to the right to use land for afforestation,
as provided for in s 36(1)(a).”’(Emphasis added.)
For reasons that follow, I disagree.

[90] Chapter 2 of the Constitution of the Republic of South Africa, 1996 (the
Constitution), contains the Bill of Rights. Section 24(b) of the Constitution
guarantees everyone the right ‘to have the environment protected, for the benefit of
present and future generations, through reasonable legislative and other measures
that (i) prevent pollution and ecological degradation; (ii) promote conservation; and

(iii) secure ecological sustainable development and use of natural resources while
promoting justifiable economic and social development’. Section 27(1)(b) of the
Constitution provides that everyone has the right to have access to sufficient food
and water. Section 39(2) of the Constitution enjoins all courts to ensure that ‘when
interpreting any legislation . . . courts must promote the spirit, purport and objects
of the Bills of Rights.’

[91] The Act is thus legislation enacted to give effect to the Bill of Rights. Section
1(3) of the Act states as follows:
‘When interpreting a provision of this Act, any reasonable interpretation which is consistent with
the purpose of this Act as stated in section 2, must be preferred over any alternative interpretation
which is inconsistent with that purpose.’ (Emphasis added.)
Section 2 of the Act states that ‘[t]he purpose of this Act is to ensure that the nation’s
water resources are protected, used, developed, conserved, managed and controlled’
in ways which take into account other factors listed in s 2(a) to (k) of the Act, and to
achieve this purpose, to establish suitable institutions and to ensure that they have
appropriate community, racial and gender representation. In Bato Star Fishing (Pty)
Ltd v Minister of Environmental Affairs and Tourism and Others,4 it was held that
in interpreting legislation, the court needs to look at the context, which in turn
clarifies the scope and purpose of the legislation.

[92] The starting point, in my view, is s 21 of the Act which defines the concept
‘water use’. Forestry SA correctly submits, that not every use of water is water use.
The concept of ‘water use’ refers to a category of uses listed in s 21 of the Act. In
particular, s 21(d) includes a stream flow reduction activity, referred to in s 36, as
water use. In addition, there is a specific category of water use which is defined in

4 Bato Star Fishing (Pty) Ltd v Minister of Environmental Affairs and Tourism and Others [2004] ZACC 15; 2004 (4)
SA 490 (CC); 2004 (7) BCLR 687 (CC) at para 89-90.

s 32 of the Act. The water use in s 32 is that which took place at any time during the
period of two years immediately before the date of commencement of the Act. This
category of water use is referred to as the existing lawful water use. (Emphasis
added.)

[93] Section 32(1) defines an ‘existing lawful water’ use as follows:
‘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 authorized 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 contemplated in section 37(1); or
(b) which has been declared an existing lawful water use under section 33.’

[94] Of the three kinds of existing lawful water uses listed in s 32(1), the stream
flow reduction activity listed under ss 32(1)(a)(ii) is the source of contestation.
Forestry SA submits that the stream flow reduction activity does not have to be
lawful, which is contrary to ss 32(1)(a)(i) and that, in s 36(1), the stream flow
reduction activity implies ‘the use of land’. The case for the Statutory Authorities is
that a stream flow reduction activity is not only a water use, but also qualifies as an
existing lawful water use in terms of s 32(1)(a)(ii) and thus, falls within the purview
of s 35 of the Act.

[95] Section 35 of the Act, which is the subject of disagreement as to its
interpretation, deals with verification of existing lawful water uses. In that regard, it
authorises the responsible authority to verify the lawfulness or the extent of an
existing water use, by written notice, requiring any person claiming entitlement to
that water use, to apply for a verification of that use. Section 35(3) provides that a

responsible authority may require other information, in addition to that provided in
the application, or may conduct an investigation into the veracity and the lawfulness
of the water use in question. Section 35(4) empowers a responsible authority to
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 water
use contemplated in s 32(1). (Emphasis Added.)

[96] The definition of the stream flow reduction activity is referenced as an existing
lawful water use in s 32(1)(a)(ii). Forestry SA, isolated the words ‘the use of land’
in s 36(1), to contend that a stream flow reduction refers to ‘use of land’ and not a
water use, and therefore does not fall within the scope of s 35 of the Act. This
contention offends the provisions of s 21(d) of the Act, which provides that:
‘For the purposes of this Act, water use includes –
. . .
(d) engaging in a stream flow reduction activity contemplated in s 36.’
Reference to ‘use of land’ in s 36(1) (a), is made in the context of defining the
purpose for which the land is used, namely, afforestation, which has been or is being
established for commercial purposes.

[97] The unambiguous language of s 35 of the Act authorises verification of a
stream flow activity stated in s 32(1)(a)(ii), as defined in s 36(1). There is no express
or implied language of exclusions or exemptions in either s 32(1) or s 36(1), or any
qualification that would mean or, for that matter, imply that the exercise of powers
in s 35 would be ultra vires. Therefore, the verification process is not excluded in its
application by any activity to change the genus or species of trees that may be planted
in the use of the land for afforestation, which has been or is being established for
commercial purposes, as provided for in s 36(1)(a). To state otherwise, as the first
judgment does, is to narrowly construe the powers in s 35 of the Act, such that they

impede the achievement of the purpose as stated in s 2 of the Act. That construction
strains the language of the Act. In Bertie Van Zyl (Pty) Ltd and Another v Minister
for Safety and Security and Others,5 the Constitutional Court warned that the
interpretation must not unduly strain the legislation. This Court is enjoined to adopt
an approach to the interpretation of s 35 which is consistent with the purpose in s 2
of the Act.

[98] Section 35 of the Act provides for verification of existing lawful water use in
s 32(1)(a). These are the lawfulness or extent of the existing water use. Therefore,
the stream flow on land used for afforestation for commercial purposes, as envisaged
in s 32(1)(a)(ii), read with s 36(1)(a) of the Act, or genus exchange, is an activity
that may impact on the reduction of water. In that regard, a determination may be
necessary in terms of s 35(4), as to the extent of the existing water use in that area.

[99] Undoubtedly, there are, and there will be, in my view, multiple scenarios of
genera exchanges which may arise, creating activities which may result in a negative
impact on water use. It will be better in such instances, to allow the in-build dispute
resolution mechanism of the Water Tribunal, in chapter 15 of the Act, to determine
the limits of the exercise of powers in s 35 of the Act on a case-by-case basis. More
so, that there are differences of opinion on the scientific methods of determining the
accurate measurement of the extent of the impact of genus exchange on water use,
as demonstrated by the facts of this case. It will be imprudent to burden the Act with
an interpretation which excludes the exercise of power delineated in s 35 of the Act,
on a matter on which the courts are yet to express a view as to which scientific
method provides a legally acceptable measurement for a reduction activity, once all

5 Bertie Van Zyl (Pty) Ltd and Another v Minister of Safety and Security and Others [2009] ZACC 11; 2010 (2) SA
181 (CC); 2009 (10) BCLR 978 (CC) para 22.

the stakeholders have agreed on a common meaning and one or two of the
stakeholders including those who are not members of Forestry SA may not be happy
with the meaning envisaged.

[100] The order in the first judgment unduly limits the scope of s 35 of the Act. It
supports an interpretation which will tie the hands of the Statutory Authorities from
developing and managing water as a resource to be shared, as envisaged by the Act.
It will scupper the work of the experts which the Statutory Authorities and Forestry
SA, as well as other stake holders have put in place. In the worst-case scenario, it
will stultify any progress achieved thus far. Furthermore, other stakeholders directly
or indirectly involved with the environment, may be adversely affected by the stream
flow reduction activities, without recourse.

[101] I would therefore uphold with costs, this part of the appeal by the Statutory
Authorities under case no 824/2022, and grant the order as follows:
It is declared that:
1.1
In the process of verifying existing water use as provided for in section 35 of
the National Water Act 36 of 1998 (the Act), the interpretation of ‘use of land for
afforestation which has been or is being established for commercial purposes’ is
restricted to trees on the ground during the qualifying period.
1.2
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 1996 to September 1998.
1.3
In respect of genus or species of trees on land used for afforestation:
1.3.1 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 Act:

(a)
On a proper interpretation of the Forest Act 122 of 1984 and the Forest Act

72 of 1968 as amended and of the planting permit issued  in terms thereof,

any reference to genera or species of trees in the planting permits, limits such

existing lawful water use for such genera or species;
(b)
reference to genera or species in the planting permits constitutes conditions

subject to which such permits have been issued;
(c)
the imposition of such conditions is of force and effect and remains valid until

reviewed and set aside by a court of competent jurisdiction;
(d)
the appellants are entitled to take into consideration the genera 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;
(e)
the exchange of genera or species of trees constitutes water use is envisaged

in section 21 of the Act and genera and species and clones of trees used for

commercial forestation may not be exchanged without authorisation in terms

of the Act; and
(f)
whenever genera or species of trees used for commercial afforestation

changes, the responsible authority is entitled to insist, during the verification

process, that the trees authorised for commercial afforestation be reduced in

extent in so far as such a species or genera of trees uses more water than the

species or genera sought to be replaced.
The respondents are ordered to pay the costs of the application, such costs to
include the costs of two counsel.

__________________________
SP MOTHLE
JUDGE OF APPEAL

Appearances

For the appellants:

W H Van Staden SC and A De V L Grange SC
Instructed by:

Hannes Pretorius Bock & Bryant, Somerset West
Van Wyk & Preller Inc., Bloemfontein

For the respondents:

M Mphaga SC and P Loselo
Instructed by:

The State Attorney, Cape Town

The State Attorney, Bloemfontein

THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
MEDIA SUMMARY OF JUDGMENT DELIVERED IN THE SUPREME COURT OF APPEAL
From:
The Registrar, Supreme Court of Appeal
Date:

15 November 2023
Status:
Immediate
The following summary is for the benefit of the media in the reporting of this case and does not
form part of the judgments of the Supreme Court of Appeal
Forestry South Africa v Minister of Human Settlements, Water and Sanitation and
Others (777/2022) and Minister of Human Settlements, Water and Sanitation and
Others v Forestry South Africa (824/2022) [2023] ZASCA 153 (15 NOVEMBER 2023)
Today, the Supreme Court of Appeal (SCA) delivered judgment in a matter where two appeals were
consolidated and heard together under case numbers 777/22 (the Forestry SA appeal) and 824/22 (the
statutory authorities’ appeal). The court upheld the Forestry SA appeal and upheld the statutory
authorities’ appeal, in part. Both appeals were from orders of the Western Cape Division of the High
Court, Cape Town (the high court).

The appellant (Forestry SA) brought an application before the high court in which it sought declaratory
relief pertaining to the interpretation of certain provisions of the National Water Act 36 of 1998 (the Act).
This relief was opposed by the respondents (the statutory authorities) who sought its dismissal.
However, the high court granted certain aspects of the relief sought, and dismissed other relief.

The appeal revolved around two principal issues, namely, the regulation of existing lawful water use,
and the continuation of existing lawful water use. The first issue concerned stream flow reduction activity
(flow activity), as defined in the Act, being the use of land for afforestation which has been, or is being
established, for commercial purposes. Flow activity was introduced into South African law by the Act,
and was founded on the principle that the government is the public trustee of water resources, which
must be protected and utilised in a sustainable and equitable manner. Government has the authority to
regulate the use, flow and control of all water. Forestry SA sought a declaratory order that water use
that is flow activity is not subject to authorisation by or under any law which was in force immediately
before the commencement of the Act. The second issue in respect of which Forestry SA sought relief
in terms of s 34 of the Act, namely that a person enjoyed the right to continued existing lawful water use
and that did not limit the planting of specific species of trees (the specie issue).

The question before the SCA was this: what rights of existing water use were there that derived from
the law that was of application before the commencement of the Act, and on what basis could such use
continue? The SCA found that s 32 of the Act defined two classes of existing lawful water use, the first
being water use two years prior to the commencement of the Act (pre-commencement water use), while
the second class concerned existing lawful water uses not captured by the definitions of pre-
commencement water use. The former was divided into three types of use: use that was authorised by
any law in force immediately before the date of commencement; water as a flow activity, and lastly,
water as a controlled activity in terms of s 37(1). Forestry SA sought a declarator specifically with
regards to what constituted flow activity in terms of s 36(1) of the Act. This section contemplates two
activities, the first being the use of land for afforestation for commercial purposes and the second, any
activity determined by the Minister as being a flow activity, with regards to a particular crop or other
vegetation.

The declarator brought by Forestry SA was to determine whether its members who engaged in
commercial forestry as a flow activity were only recognised as an existing lawful water use under the
Act on the basis that such use was authorised by a law in force immediately before the commencement
of the Act. Forestry SA contended that there was no such requirement, whereas the statutory authorities
contended that the recognition of flow activity, as an existing lawful water use, required that the flow
activity must have been lawful in terms of the laws that were of application during the qualifying period
of two years. If the flow activity was unlawful, it could not be made lawful in terms of the Act. It was on
this basis that the high court declined to grant the declarator.

The SCA approached the interpretative exercise by examining the three kinds of pre-commencement
activities embodied by s 32(1). The three activities were authorised use of water, in terms of s 32(1); a
flow activity in terms of s 36; and a controlled activity in terms of s 37. The SCA explained that the
legislature defined three types of pre-commencement water use and gave recognition to each as an
existing lawful water use. Water use qualified as lawful use if it fell within one of the defined types, and
a coherent interpretation required that a separate definitional content must be attributed to each type.
One type of pre-commencement water use is not defined by recourse to another type of use. The
definition of flow activity did not import the requirements of authorised use. A water use could have
been recognised as flow activity without that activity being one that was authorised by or under old order
law. The typology of s 32(1)(a) allowed that water use could have qualified as an existing lawful water
use, even if it was not authorised use in terms of s 32(1)(a)(i). That is so because an existing lawful
water use could have been a flow activity or a controlled activity. The high court found that the principle
of legality did not allow for this interpretation of the Act.

However, the SCA held that, although the high court correctly observed that authorised use does not
exhaust what constitutes an existing lawful water use under s 32(1) of the Act, engrafting lawfulness as
a constitutive requirement of flow activity gives rise to redundancy in the interpretation of s 32(1)(a).
The reason for this is because the Forest Act 122 of 1984 defined land used for commercial
afforestation. Outside these defined land uses, commercial afforestation required no authorisation, nor
was it subject to any prohibition. So understood, the pre-commencement water use recognised by the
Act was not making lawful what had been unlawful commercial afforestation prior to the commencement
of the Act. The regime of old order law did not divide prohibited land use and authorised land use in
respect of commercial forestry. Rather, there was prohibited land use, authorised land use, and land
use that was neither prohibited nor authorised, but constituted an exercise of existing property rights.
Flow use, in this context, was thus the use of land for commercial afforestation which immediately before
the commencement of the Act rested upon the exercise of existing property rights. The Court held that,
correctly interpreted, the Act permitted the continuation of existing lawful water use to those who had
access to existing use prior to the commencement of the Act, subject to any existing conditions or
obligations that attached to such use. However, in terms of the Act, existing rights are subject to the
extensive regulatory powers found in the Act. In interpreting the provisions in this manner, this Court
clarified the meaning of flow activity on the basis that a clear distinction is to be made between
authorised use and a flow activity. Flow activity is not made subject to a vague understanding of
lawfulness. The SCA emphasised that existing lawful use was not absolved from the regulatory ambit
of the Act; it was a continuation of existing rights. The SCA held that, on this basis, the high court ought
to have granted the declarator sought.

The species issue concerned the powers conferred by the s 34 of the Act to regulate what species of
trees could be planted by persons with the right to continued existing lawful water use. The relief sought
was to clarify that the entitlement to continue with existing lawful water use did not limit flow activity to
the planting of specific species of trees. Section 34 determined that an existing lawful water use may
continue, subject to three kinds of authority, the first concerning any existing conditions or obligations
that attached to the existing lawful water use; the second pertains to the replacement of such use with
a licence required or granted under the Act; and the third rendered existing lawful water use subject to
other limitations or prohibitions under the Act.

The SCA found that there was an important distinction between the first kind of authority and the two
others. The first pertains to existing lawful water use. Flow activity was one type of lawful water use,
recognised, as at the commencement of the Act, on the basis of use during the qualifying period. This
was important as it clarified the meaning of authority to which flow activity was being made subject in
terms of s 34(1)(a). This provision made flow use subject to any existing conditions or obligations
attached to that use, correctly interpreted. Flow activity was a lawful water use that was recognised at
the commencement of the Act and, logically, the conditions and obligations attaching thereto should
similarly exist. The other two authorities dealt with matter introduced by the Act. The SCA found that
this was relevant as it highlighted how a distinction is to be made between forward- and backward-
looking restrictions in terms of the Act. The SCA found that the declarator sought by Forestry SA in the
high court was too broad. The high court ought to have granted the declarator, but in a modified form,
to reflect that the rights attaching to flow activity prior to the commencement of the Act are recognised
by the Act at its commencement.

Lastly, the statutory authorities sought an authoritative interpretation of s 35 of the Act, which concerned
the verification of existing water uses. The majority of the court found that the power to verify existing
water uses revolved around the question whether the water use was lawful and what the extent of the
use. The question was whether the extent of existing water use, as a flow activity, referred to the amount
of water used or the extent of land used? The majority found that verification in terms of s 35 of an
existing water use, in terms of s 32 and was depended on the type of existing lawful water use to which
verification used was of application. Flow activity referenced land use. The majority found that if a
person was entitled to an existing lawful water use as a flow activity, the verification of the extent of
such use was measured by reference to the land used, and not the amount of water consumed. Such
verification could not consider the impact of species exchange upon water consumption as an incident
of determining the extent of flow activity. The position taken by the statutory authorities that s 35 afforded
the authority to regulated species exchange in relation to flow activity was therefore found to be
incorrect.

In the result, the SCA upheld the Forestry SA appeal and declared that existing lawful water use in
respect of a stream flow reduction activity in respect of the use of land for afforestation was not subject
to authorisation by any law immediately in force before commencement of the Act. The obligations and
conditions referred to in the Act did not limit existing lawful water use in stream flow reduction activities
with regards to the planting of specific species of trees, except where a restriction emanated from the
commencement of the Act. The statutory authorities appeal was upheld in part by the majority and the
relevant section was replaced with an order that the species of trees utilised for commercial
afforestation, established prior to the commencement of the qualifying period during the qualifying
period, cannot be taken into consideration by the responsible authority to verify the lawfulness or extent
of an existing flow activity, save that in determining lawfulness in terms of s 35 of the National Water
Act, a responsible authority may consider whether the activity was subject to any conditions or
restrictions as to the genus or species of trees that may be planted, deriving from law that was of
application at the commencement of the National Water Act and attached to the right to use land for
afforestation, as provided for in s 36(1)(a).’

In a separate dissent, the minority concurred with the majority in the Forestry SA appeal, but not with
the statutory authorities’ appeal. The dissent took up the interpretation of s 35. The minority held that s
35 authorises a responsible authority to verify the lawfulness or the extent of an existing water use and
empowered the authority to determine the extent and lawfulness of water use pursuant to an application.
Such a determination had the effect of limiting the extent of any lawful water use contemplated in s 32.
However, Forestry SA’s interpretation of s 36, read in conjunction with s 32 offended the provisions of
s 21(d) of the Act as it should refer to water used, not the use of land. In effect, the majority narrowly
construed the powers in s 35 of the Act, which impeded the purpose of the Act. The order of the majority
unduly limited the scope of s 35 as it posited an interpretation that tied the hands of the statutory
authorities from developing and managing national water sources.

~~~~ends~~~~