SCA ruling is a win for environment

In a major win for conservation‚ the Supreme Court of Appeal has given the thumbs up for the continuation of what is said to be South Africa’s largest ever wetland rehabilitation project at the St Lucia Estuary.

The estuary forms part of the Isimangaliso Wetland Park‚ which has had World Heritage site status since 1999.

The rehabilitation project aimed to reduce salinity in the lake and will have an impact on an estimated 80‚000 people who live near it‚ and who depend on the natural resources to put food on the table.

The case came before the court as an appeal by the Umfolozi Sugar Planters who had tried to stop the project‚ claiming it was causing back-flooding on their sugar farms.

While the farmers had initially secured an order in the Durban High Court compelling Isimangaliso to artificially breach the mouth of the Umfolozi River to stop flooding on their land‚ in 2016 Durban High Court Judge Mohini Moodley lifted this order and dismissed their case‚ with costs.

Their appeal to the SCA has met with a similar fate.

On Monday‚ a full bench of five judges concluded that the sugar farmers had no case.

In a judgment penned by Judge Visvanathan Ponnan‚ the judges said that the estuary formed the core of the park and “is by nature dynamic‚ driven by five rivers and sea water coming through the mouth”.

They said prior to farming activities in the area‚ the Umfolozi River had meandered through the floodplain but‚ to assist in draining fields‚ it had been canalised and diverted by the farmers.

“This changed the natural course of the river. A separate mouth opened and the separation of the river and estuary was achieved… the benefits of freshwater were lost to the system resulting in an increase in salinity levels... with devastating effects on plant‚ bird‚ fish and animal species‚” they said.

In 2010‚ Isimangaliso published a strategy to restore the ecological function of the system‚ allowing fresh water flowing from the river and the mouths to combine.

It was recognised that back-flooding could occur on low lying sugar cane fields.

In September 2012‚ the combined mouth opened and breached into the sea naturally.

It remained open for 27 months. As at October that year‚ about 16.4-billion litres of fresh water entered the estuary‚ there was a marked and positive plant and animal response.

In 2014‚ poor rains contributed to a decrease in water levels and the closing of the river mouth but in April the following year‚ the levels rose again‚ resulting in back-flooding.

The farmers made representations to Isimangaliso and the mouth was breached. But a week later it closed again naturally.

So the farmers headed to the Durban High Court claiming there was no proper management plan. Pending the outcome of what would be a protracted trial on that issue‚ Isimangaliso was ordered to breach the mouth when it became necessary - but this order was overturned by Judge Moodley.

The SCA judges agreed with Judge Moodley’s findings‚ that Isimangaliso’s actions were grounded and sanctioned by law‚ including the World Heritage Convention.

They said it was clear that from the early stages of research and implementation of the plan the farmers had been consulted.

“Their views were heard. They raised no objections. Large parts of what Isimangaliso said in affidavits were not challenged.

“There was no proper legal challenge to either the initial plan or the subsequent final Integrated Management Plan which was approved by the minister in May 2017.

“They say Isimangaliso has a historic obligation to drain back flooding and they want that obligation incorporated into an already complete plan. They say the legal basis lies in custom‚ the law of neighbours and a water use certificate.

“Those rights have been overtaken by the passage of time and subsequent administrative decisions.”