Broers v Director-General, Department of Water Affairs and Forestry (WT9/S2) [2011] ZAWT 7 (1 January 2011)
- Citation
- [2011] ZAWT 7
- Status
- Judgment
- Jurisdiction
- South Africa
- Court
- Water Tribunal
- Panel
- M.M. Mabesele
- Case number
- WT9/S2
More details
- Court
- Water Tribunal
- Panel
- M.M. Mabesele
- Case number
- WT9/S2
On this page
Professional case brief
Research organized from the available case record
01
Holding and result
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.
- The Chief-Director is ordered to issue a licence to the appellant for the afforestation of 51 hectares on the remaining portion of the farm Witbank IT in the quaternary catchment W 53 A.
- The licence shall be valid for a period of 40 years.
- The licence shall be subject to the provisions of section 49 of the National Water Act, 1998 (Act No. 36 of 1998) and any reasonable conditions imposed by other relevant departments.
02
Material facts
Parties
Stapelberg Broers
AppellantDirector-General, Department of Water Affairs and Forestry
RespondentAmounts and remedies
- Area Approved for Afforestation (hectares): 51
- Licence Validity Period (years): 40
03
Procedural history
Posture
Civil Appeal / Appeal
04
Questions and positions
Legal issues
- 01
Whether the respondent failed to properly apply his mind to the application for a stream flow reduction activity licence.
- 02
Whether the respondent's decision was based on factually and legally incorrect reasons.
- 03
Whether the respondent followed correct administrative procedures in refusing the licence.
- 04
Whether the appellant's right to be heard was infringed.
Party arguments
- Applicant
- The appellant argued that the respondent failed to apply his mind to the application, relied on incorrect factual and legal grounds, and did not follow proper administrative procedures. The appellant contended that the property was not situated in a critical catchment area and that the supporting report by Naomi Fourie was not properly considered.
- Respondent
- The respondent maintained that the property was located in a critical catchment area where licences for afforestation could no longer be issued, and that the refusal was justified on environmental and water resource grounds.
05
Court’s reasoning
Legal principles
- 01
National Water Act, 1998 (Act No. 36 of 1998)
An administrative decision must be based on a proper consideration of all relevant information and must follow fair procedures.
- 02
Promotion of Administrative Justice Act, 2000 (PAJA)
The right to be heard is a fundamental aspect of administrative justice and must be respected in licensing decisions.
06
Ratio, limits and disposition
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.
Obiter and limits
- Referring the matter back to the SFRALAAC would be unwise given the full record now before the Tribunal.
- The licence should be subject to section 49 of the National Water Act and any reasonable conditions imposed by other relevant departments.
Court disposition
Appeal upheld; the Chief-Director's decision is set aside and the respondent is ordered to issue the licence.
- The decision of the Chief-Director is set aside.
- The appeal succeeds.
- The Chief-Director is ordered to issue a licence to the appellant for the afforestation of 51 hectares on the remaining portion of the farm Witbank IT in the quaternary catchment W 53 A.
- The licence shall be valid for a period of 40 years.
- The licence shall be subject to the provisions of section 49 of the National Water Act, 1998 (Act No. 36 of 1998) and any reasonable conditions imposed by other relevant departments.
Source and reliance status
Water Tribunal
This page organises the available record for research. Confirm quotations, current status, and subsequent treatment against the official source before relying on the case.
Judgment reading view
Judgment text
The complete available source text.
Water Tribunal
Judgment
IN THE WATER TRIBUNAL
CASE NO.: WT9/S2
IN THE APPEAL OF:
STAPELBERG
BROERS …...................................................................APPELLANT
AND
THE DIRECTOR-GENERAL
DEPARTMENT
WATER AFFAIRS AND FORESTRY …............................RESPONDENT
DECISION
1. The Appellant submitted an application for a stream flow reduction activity licence inrespect of an area of land in extent 81 ha situated on Portion 4 of the farm WitbankNo. 300, Registration Division IT, Mpumalanga, for afforestation with eucalyptus spplantations. the Respondent refused to grant a licence to the Appellant on thegrounds that the Appellant's property is situated in a critical catchment area wherelicences for afforestation can no longer be issued.
2. The main ground of appeal is failure by the Respondent to apply his mind in that the Respondent based his decision on reasons which are factually and legally incorrect and the Respondent has failed also to follow correct administrative procedures.
3. On the 22nd February 2001 the Regional Director for Mpumalanga addressed a letter to the Director-General: Department of Water Affairs and Forestry wherein the Regional-Director conveyed to the Director-General the recommendations of the Stream Flow Reduction Activity Licence
Assessment Advisory Committee (SFRALAAC) as follows:
During the SFRALAAC meeting held on the 22nd February 2001, it was decided to recommend the application for the afforestation of 51 (fifty-one) ha on the remaining portion of the farm Witbank IT in the quaternary catchment W 53 A. The favourable consideration for the issuing of a licence for the afforestation of 51 (fifty-one) ha on the Witbank IT for a valid period of 40 (forty) years is recommended provided that water is available in the quaternary catchment for the development.
On 12th April 2001 the Chief Director: Water Use and Conservation disapproved of the application for reasons stated earlier.
At the meeting of 22nd February 2001, the SFRALAAC considered the Stapelberg Broers application and mandated Ms Fourie to determine the areas for afforestation. (See annexure "A".) From the minutes of this meeting no recommendation was made to DWAF Head Office regarding the application.
A report was prepared by Naomi Fourie recommending inter alia the granting of water use licence for a maximum of 51 (fifty-one) ha and that the licence be valid for a maximum period of 40 (forty) years. This report did not serve before the SFRALAAC for consideration and decision.
The submission by the Regional-Director that the SFRALAAC recommended application for the afforestation of 51 (fifty-one) ha is incorrect. However, the Regional-Director directed this application to DWAF head office together with Naomi Fourie's well-prepared report. There is no evidence on record that the Chief-Director ever considered Naomi Fourie's report when taking decision. If the Chief-Director could have considered all the information surrounding this application, including Naomi Fourie's report, the Chief-Director could have referred the application back to the SFRALAAC to consider the report and make recommendation. Alternatively the Chief-Director could have considered the contents of the application and the report and thereafter come to a conclusion. Failure by the Chief-Director to follow either of these procedures infringed upon the applicant's right to be heard.
The reasons advanced by the Chief-Director for his decision not to grant the licence are rejected in that neither the SFRALAAC nor Naomi Fourie found that the Appellant's property is situated in a critical catchment area. Moreover, the Chief-Director failed to adduce evidence that the property is situated in a critical catchment area.
With this application now before the Tribunal with all supporting documents, it will be unwise to refer it back to the SFRALAAC.
Having read Naomi Fourie's report and other documents filed of record, the Tribunal come to the following decision:
4. (1) The decision of the Chief-Director is set aside.
(2) Appeal succeeds.
The Chief-Director is ordered to issue licence to the Appellant for the afforestation of 51 (fifty-one) ha on the remaining portion of the farm Witbank IT in the quaternary catchment W 53 A.
The licence shall be valid for a period of 40 (forty) years.
The licence shall be subject to the provisions of section 49 of the National Water Act, 1998 (Act No. 36 of 1998) and any reasonable conditions as may be imposed by other relevant departments.
M.M. MABESELE (ADDITIONAL MEMBER)
(Other members concur)
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