Parkscape v MTO Forestry (Pty) Ltd and Another

• Jurisdiction: South Africa
• Judge: Gamble J
• Judgment Date: 01 March 2017
• Docket Number: 15910/16
• Hearing Date: 01 March 2017
• Counsel: JA Newdigate SC (with DW Baguley) for the applicant (Parkscape). AJ Freund SC (with M Adhikari) for the first respondent (MTO Forestry). HJ de Waal for the second respondent (SANParks).
• Court: Western Cape Division, Cape Town

Gamble J:

Introduction F

[1] There can be no debate that Table Mountain is an imposing edifice which people all over the world associate with the Mother City. Its breathtaking natural beauty is there for all to behold, whether they are visitors to the city or residents as they go about their daily business G during the week. [1] It is often a harbinger of weather to come: a fleeting glance at the cloud on the mountain will inform one whether much-needed winter rain is on the way, or whether the relentless southeasterly wind is back for the summer. From sunrise to sunset it changes hue as the day progresses, at all times offering a beacon to those who may have H lost direction.

[2] But Table Mountain is not just the sandstone massif which towers above the City Bowl. It has an extended spine which runs the entire length of the Peninsula offering natural beauty and a plethora of public spaces to the residents of the city, from rich to poor: areas which have always been accessible to all who wish to enjoy it. At the height of the I apartheid era when beaches and parks and other local spaces were

Gamble J

racially restricted, Table Mountain was one of the few public amenities A which was open to all who ventured there. And, it still is — be they hikers, ramblers, dog-walkers, runners, cyclists or adventure-seekers.

Management of the Mountain

[3] The Mountain (for that is how many locals refer to it) was declared B a national park in 1997 and fell to the custodianship of the second respondent (SANParks) for its protection for the generations to come under the erstwhile National Parks Act 57 of 1976. As Navsa JA points out in Oudekraal 2, the Table Mountain National Park (the Park) covers an area of some 30 000 hectares , stretching from Signal Hill in the north to Cape Point in the south. It is home to an abundance of fauna and C flora, and is one of eight areas constituting the Cape Floral Region (CFR) which was listed as a World Heritage Site in 2004. That listing elevated the CFR to a site of outstanding significance to humanity. [2] The Mountain braces major tourist attractions such as the Table Mountain Aerial Cableway, the Kirstenbosch Botanical Gardens and the Cape Point D promontory with its limitless views eastward over the icy waters of the Atlantic Ocean. At various points along its periphery the Mountain also offers locals an abundance of beaches, picnic sites and braai areas where the natural beauty can be enjoyed by all.

[4] Previously, the Mountain was controlled by SANParks under the E National Parks Act 57 of 1976, but since that Act was repealed and effectively subsumed by NEMPA [3] (which came into operation on 1 November 2004), SANParks has been charged with all aspects of the environmental protection and management of the Mountain in terms of the transitional provisions under s 54 of the latter Act. [4] This requires it to interface with various departments of state, provincial and local F government, as well as a host of local interest groups. The obligations, duties and powers of SANParks in this regard are extremely wide-ranging and onerous as ss 55 and 56 of NEMPA determine: s 55(1) sets out the mandatory functions of SANParks, while s 55(2) contains the permissive powers and functions. It discharges those functions under its chosen by-line, 'A Park For All, Forever'. G

Plantations on the Mountain

[5] Section 39 of NEMPA requires SANParks to develop a management plan for the Park in terms of ch 4 of that Act and to this end SANParks eventually produced such a plan in November 2015 for the period H 2015 – 2025. When SANParks assumed control of the Mountain it was

Gamble J

fortunate A to inherit vast areas of natural forest and pristine fynbos. But, it also acquired large areas of plantation covered by exotic pines and gums, as well as other forms of alien vegetation which demanded its attention.

[6] SANParks says that in 1999 the national Cabinet took a decision that B all the plantations in the Park were to be felled over time. Accordingly, in May 2009 SANParks produced a management framework document covering the period 2005 – 2025 for the systematic management of certain of the plantations on the Mountain, more particularly those known as Cecilia and Tokai. Cecilia plantation (or 'forest', as it is also C known) lies in a wedge of the Mountain above the historic Rhodes Drive, roughly between Kirstenbosh Botanical Gardens and Constantia Nek. Tokai plantation (similarly known as a 'forest') lies further south, adjacent to the suburbs of Constantia and Tokai.

[7] Paragraph 1.3 of the Management Framework gives the following D background to these areas:

'Tokai and Cecilia plantations are located on the eastern flanks of the Table Mountain range. From the late 1800s to the present, these areas were used for commercial plantations. Cape Town residents and visitors have historically used the plantations for a variety of recreational activities and the plantations provide access to other areas on E the mountain. Tokai plantation is accessed from Tokai and Orpen Roads and Cecilia from Rhodes Drive and Constantia Nek.

Tokai extends from the lowlands (surrounded by suburbs) to the upper mountain slopes in the Park. Cecilia however is located above the 90m contour and borders the residential development of Rhodes Drive on F the lower slopes of the mountain. Tokai represents not only one of the last opportunities to effectively link ecological processes from the mountain to the lowlands but also one of the few remaining opportunities to rehabilitate a sustainable area of critically endangered Cape Flats Sand Fynbos. Both Tokai and Cecilia provide sufficient areas suitable for the restoration of the endangered Granite Fynbos.'

[8] G Paragraph 2.3(b) of the Management Framework refers to the importance of biodiversity conservation:

'The core objective of Government, when assigning the Tokai and Cecilia Plantations to SANParks, was to manage conservation-worthy land in the national interest. Key to the SANParks biodiversity conservation mandate is the rehabilitation of threatened and endangered H ecosystems. As such, biodiversity restoration is a major underpinning informant of the Management Framework.'

Plantation leases

[9] Section 55(1)(a) of NEMPA obliges SANParks to manage the Park, [5] I s 55(2)(d) permits SANParks to eradicate any undesirable species in a

Gamble J

park under its management, [6] and s 56(a) gives it the permissive power A to lease any property under its control. [7] In furtherance of SANParks' obligation to adhere to the policy decision to remove these plantations, a contract for the management and felling of the Tokai and Cecilia plantations in the Park was put out to public tender by the Department of Water Affairs and Forestry in 2004. The first respondent, MTO B Forestry (Pty) Ltd (MTO), [8] was the successful bidder and in January 2005 the Minister of Water Affairs and Forestry concluded an agreement of lease with MTO which was assigned to SANParks shortly thereafter. The Executive Summary of the Management Framework explains the purpose of the lease and its assignment as follows:

'On 1 April 2005 . . . SANParks . . . was assigned the management of C Tokai and Cecilia plantations as part of the Table Mountain National Park (TMNP). TMNP is responsible for the management of the plantations and the exit lease whereby the forestry company, MTO Forestry (Pty) Ltd, has been granted the right to harvest about 600 hectares of plantations over a 20 year period to 2025. The remainder of the land, about 400 ha comprising the picnic area, Arboretum, administration D buildings and conservation land falls under the direct management of SANParks.'

[10] The lease, which is a purely commercial venture for MTO, envisages the felling of the trees in Tokai and Cecilia plantations over a period of 20 years. Annexed to the lease is a document (annexure K) which fixes E a schedule according to which MTO is required to progressively remove portions of these plantations (referred to by the parties in the lease as 'compartments' of trees) over time. MTO is required to notify SANParks on an annual basis of its felling programme which it intends to implement over the following six years of the lease (or such lesser period as may be applicable) in order to complete the felling in terms of the time periods F contemplated for a particular compartment in annexure K to the lease. MTO is further required to state which specific compartments are to be felled and indicate any variations to annexure K and the reasons therefor.

Gamble J

[11] A Any such variations to annexure K are subject to the approval of SANParks. Accordingly, SANParks must within 90 days of receipt of the proposed annual felling programme inform MTO whether it accepts any changes to the program in annexure K, and if it rejects the proposed amendments to that annexure it is required to inform MTO thereof in B writing. Finally, the lease provides that in the event that any compartment (or a substantial part thereof) is destroyed or partially destroyed by fire, and if MTO wishes to fell such areas at times other than those contemplated in the lease, it must notify SANParks of its intentions in that regard.

Application C for urgent relief

[12] On Thursday 25 August 2016 MTO commenced felling pines in a part of the Tokai plantation adjacent to Dennendal Avenue, which borders on the suburb of Tokai. It did so swiftly and with minimal advance warning, its employees working unusually late into the night. D This activity drew the ire of neighbouring residents who complained straightaway to the City of Cape Town's law-enforcement officials, asking for an immediate halt to the activities. Eventually MTO was prevailed upon to suspend its activities that night pending an urgent application to this court...