IN THE WATER TRIBUNAL

CASE NO.: WT/3DI
IN THE APPEAL OF:

AND

THE DIRECTOR-GENERAL

DECISION

The matter came before this tribunal by way of appeal against the decision of the Respondent. The main ground of the appeal is failure by the Respondent to apply his mind on the matter before taking a decision or failure by the Respondent to exercise his discretion properly.

The SFRALAAC resolved to recommend the application to DWAF Head Office subject to the following condition:
1. Awaiting finalisation of the Reserve with regards to the water balance model, before a final recommendation can be made to DWAF Head Office.
2. All wetlands and watercourse must be delineated prior to the establishment of any plantations.

The favourable consideration for the issuing of a licence for the afforestation of 75 ha on Welgekozen IT for a valid period of 40 (forty) years is recommended provided that water is available in the quaternary catchment for development (with regard to the water balance model).

The information is as follows:

The applicant has complied with the various directives as laid down by the Department. However, the local Stream Flow Reduction Activity Licence Assessment Advisory Committee has recommended that the licence be refused as this property is situated in a critical catchment area where afforestation licences can no longer be issued.

Secondly, only the authority to which it is committed to. That authority must genuinely address itself to the matter before it and must exercise discretion. It must not act under the dictate of another body or person and must have regard to the relevant situation (See De Smith, 1980 Judicial Review of Administrative Action at 285) over the above. Section 41(2) of the National Water Act, 1998 (Act No. 36 of 1998) provides that a responsible authority must afford the applicant an opportunity to make representation on any aspect of the application. The intention of this is to ensure that the responsible authority apply its mind to the matter before it, taking into account all relevant information submitted for consideration.

"A letter to the applicant to this effect is supplied herewith for your signature, if you concur"

recommended to DWAF Head Office subject to the following conditions:
1. Awaiting finalisation of the Reserve with regards to the water balance model, before a final recommendation can be made to DWAF Head Office.
2. All wetlands and watercourse must be delineated prior to the establishment of any plantations.

Nowhere in the minutes of the said meeting was recommendation made that the licence be refused.

Noted in the recommendation signed by Naomi Fourie were the following concerns:
	The Upper Usutu catchment being more or less in the balance.
	The Usutu is also an international river and further utilisation of the resource may particularly impact on Swaziland.
	The need to identify the impact on the downstream users and the ecological Reserve needs to be assessed in greater detail.

The preliminary hydrological assessment indicates this development would reduce the catchment's low flow by 0,11723%. This is the only reference to the determination of the reserve.

However, it is on record that both the Regional Director (letter dated 22 February 2001) and Naomi Fourie (not dated) Industrial Technician: SFRA Control for Mpumalanga made recommendation on the issuing of a licence was for 75 ha if the Reserve determines that water is available in the catchment.

The Director-General, acting on behalf of the Department of Water Affairs and Forestry, issued a letter dated 18/04/2001 to the appellant informing him of his unsuccessful application.
It is clear from all the evidence on record that the Director-General signed the letter, which, was already prepared for him.

From the above, it is clear that both Chief-Director and Director-General failed to comply with the principles governing discretionary power in that they failed to consider all the facts surrounding the application.
Having considered all the facts before us, we make the following order.
(1) The Director-General decision be set aside.
(2) The appeal succeeds.
(3) The Department of Water Affairs and Forestry is ordered to issue a licence to the appellant for the afforestation of 75 ha on Welgekozen 514 HT, for a valid period of five years. Eucalyptus species - 50 ha (fifty) Pinus species - 26 ha (twenty-six).
3. 
4.	No order as to costs.

E. DAVEY (ADDITIONAL MEMBER)
(Other members concur)