Broers v Director-General, Department of Water Affairs and Forestry (WT9/S2) [2011] ZAWT 7 (1 January 2011)

Broers v Director-General, Department of Water Affairs and Forestry (WT9/S2) [2011] ZAWT 7 (1 January 2011)

The Tribunal found that the Chief-Director failed to properly consider all relevant information, including the report prepared by Naomi Fourie, and did not follow correct administrative procedures. The reasons advanced for refusing the licence were not supported by evidence, as neither the SFRALAAC nor Naomi Fourie found the property to be in a critical catchment area. The failure to consider the report and to follow fair procedures infringed upon the appellant's right to be heard. The Tribunal concluded that the decision to refuse the licence was invalid and should be set aside.

Citation
[2011] ZAWT 7
Parties
Appellant: Stapelberg Broers; Respondent: Director-General, Department of Water Affairs and Forestry
Court
Water Tribunal
Jurisdiction
South Africa
Judgment Date
1 January 2011
Case Number
WT9/S2
Procedural Posture
Civil Appeal / Appeal
Outcome
Appeal upheld; the Chief-Director's decision is set aside and the respondent is ordered to issue the licence.
Judges
M.M. Mabesele
Legal Topics
Water Use Licensing, Stream Flow Reduction, Critical Catchment Area, Procedural Fairness, National Water Act, Afforestation Permits
Administrative Law Environmental Law Land and Property Water Use Licensing Stream Flow Reduction Critical Catchment Area Procedural Fairness National Water Act +1 more

Case Brief

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Parties

Stapelberg Broers

Appellant

Director-General, Department of Water Affairs and Forestry

Respondent

Procedural Posture

Civil Appeal / Appeal

Legal Issues

  1. 1 Whether the respondent failed to properly apply his mind to the application for a stream flow reduction activity licence.
  2. 2 Whether the respondent's decision was based on factually and legally incorrect reasons.
  3. 3 Whether the respondent followed correct administrative procedures in refusing the licence.

Ratio Decidendi

The Tribunal found that the Chief-Director failed to properly consider all relevant information, including the report prepared by Naomi Fourie, and did not follow correct administrative procedures. The reasons advanced for refusing the licence were not supported by evidence, as neither the SFRALAAC nor Naomi Fourie found the property to be in a critical catchment area. The failure to consider the report and to follow fair procedures infringed upon the appellant's right to be heard. The Tribunal concluded that the decision to refuse the licence was invalid and should be set aside.

Court Disposition

Appeal upheld; the Chief-Director's decision is set aside and the respondent is ordered to issue the licence.

Orders

  • The decision of the Chief-Director is set aside.
  • The appeal succeeds.