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Forestry industry wins legal battle on water legislation, court rules

10 Sep 2024

The Constitutional Court has ruled against granting the Department of Water and Sanitation (DWS) leave to appeal the Supreme Court of Appeal’s decision, which favoured Forestry South Africa (FSA). This decision ends a five-year legal battle concerning the Existing Lawful Water Use (ELWU) status of pre-1998 plantations, the right to exchange tree genera without reducing planted areas, and the DWS's "use it or lose it" policy.

Source: Supplied | ©Roger Poole

Prior to the court case, FSA engaged with the DWS for 15 years on these issues. The Constitutional Court Judgment upholds the Supreme Court of Appeal’s decision, which supported FSA on all key points.

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

"In cases where a water use licence states the genus as a condition of the licence, that licence can and should be amended as it is an irregular condition. The finality of the Concourt judgment removes over 20 years of uncertainty that had inhibited investment and restricted economic growth, as well as the employment opportunities that come with this.

Source: Supplied | ©Roger Poole

"It also prevents the DWS or its implementing agents from reducing the water use allocation to timber growers from what it was in 1998, irrespective of what they deem to be the current water use at the time of doing any validation and verification exercises."

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

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