1 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.’
2 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).’