South African National Parks v MTO Forestry (Pty) Ltd and Another

• Jurisdiction: South Africa
• Judge: Navsa JA, Leach JA, Dambuza JA, Davis AJA and Rogers AJA
• Judgment Date: 17 May 2018
• Citation: 2018 (5) SA 177 (SCA)
• Hearing Date: 17 May 2018
• Docket Number: 446/2017 [2018] ZASCA 59
• Counsel: JJ Gauntlett SC (with HJ de Waal) for the appellant. JA Newdigate SC (with DW Baguley) for the second respondent.
• Court: Supreme Court of Appeal

Dambuza JA D (Navsa JA, Leach JA and Davis AJA concurring):

[1] At the heart of this appeal is the question whether the appellant, the South African National Parks (SanParks), had a duty to consult the second respondent, Parkscape, prior to allowing the first respondent, MTO Forestry (Pty) Ltd (MTO), to vary a previously agreed tree felling E programme in the Tokai Forest, Cape Town, in terms of a lease agreement between the two. That approval was reviewed and set aside by the Western Cape Division of the High Court, Cape Town (Gamble J), at the instance of Parkscape, for procedural unfairness. The High Court then interdicted and restrained MTO from felling the trees in terms of the revised tree felling programme. This appeal is with the leave of the court F a quo.

[2] These proceedings were instituted at the instance of Parkscape, a non-profit organisation whose interest is the creation of 'safe, biodiverse, open and shaded urban parks in the buffer zones of the Table Mountain National Park'. Parkscape's case in the court below and before us was G that, to vary the lease so as to accelerate the felling process was an exercise of public power, necessitating public participation before the variation took place, particularly because of prior extensive public participation in relation to the management of the Tokai Forest. SanParks' case was that the decision to accelerate the felling process and H to vary the lease accordingly was taken in terms of contractual provisions and that the decision was not subject to public-law processes. It further contended that the decision was not taken in pursuit of its statutory duties and was therefore not an administrative decision.

[3] The Tokai Forest forms part of the world-famous Table Mountain I National Park (TMNP). It comprises a wide variety of trees, including camphor and poplar trees, eucalyptus and pine plantations, and various indigenous trees. It offers a wide range of recreational facilities for use by the residents of the City of Cape Town. It is administered in terms of various pieces of legislation, including the National Forests Act 84 of 1998 (the NFA) and the National Environmental Management: Protected J Areas Act 57 of 2003 (Nempa).

Dambuza JA (Navsa JA, Leach JA and Davis AJA concurring)

[4] Before 2005 the government was responsible for managing the A country's commercial forestry plantations. By 1999 it had taken a policy decision to dispose of a majority interest in its commercial forestry activities to MTO, which was initially a wholly owned subsidiary of the South African Forestry Company Ltd (Safcol). On 25 January 2005 the Department of Water Affairs and Forestry concluded a 20-year lease B agreement with MTO in terms of which the latter would clear-fell the Tokai Forest plantations over the 20 year lease period. [1] The lease agreement contemplated that the lessor's rights, obligations and responsibilities in relation to the Tokai and Cecilia plantations would be assigned to SanParks. Indeed, on 11 February 2005, the assignment occurred. C

[5] The lease agreement entitled MTO to harvest approximately 600 hectares of the Tokai plantations over a 20-year period. SanParks was responsible for managing MTO's performance of its obligations under the lease. It considered that a long-term strategic framework for the Tokai D Forest was necessary. Consequently, in late-2006 a process was started to compile the framework. As the forest fell within a protected area this process was conducted in terms of Nempa. A public participation process was initiated to identify shareholders' concerns. That process revealed divergent views: ongoing public concern about the loss of shade trees on the one hand, and the loss of biodiversity on the other. This led to the E establishment of a broad consultative process by the then mayor of Cape Town, Ms Helen Zille, with the support of the manager of the TMNP. Professor Richard Fuggle of the University of Cape Town was asked to facilitate the process between all of the interested parties. Following the extended public participation process, a 'Revised Management Framework' (management framework) was presented to the public during F December 2007.

[6] The management framework articulated a compromise between those who favoured the retention of the plantations and those who favoured their removal. This compromise entailed, among other things, G the creation of 'transition planting areas' where fynbos would only be permanently re-established after 38 years. The existing pine-gum trees would be felled and then the land burnt to encourage fynbos regeneration. The fynbos would be allowed to regenerate for 8 years to allow seed to be dispersed into the soil. Thereafter appropriate non-invasive H shade-giving trees would be planted and allowed to grow for 30 years, providing shaded recreational areas. After 30 years of growth the trees would be harvested, allowing the fynbos to return on a permanent basis. The management framework presented a profile for the future management of Tokai and Cecilia as an integral part of the TMNP. Although completed in 2009 it covered the same period as the lease agreement (2005 – 2025). I

Dambuza JA (Navsa JA, Leach JA and Davis AJA concurring)

[7] A The events which culminated in these proceedings started in March 2015 when a major fire damaged most of the plantation components in the upper Tokai Forest. In July 2016 MTO addressed a letter to SanParks requesting that it be allowed to harvest the Dennendal portion of the Tokai Forest later that year, and that it exit the lease at the end of 2017. B In terms of the original felling schedule which was part of the lease agreement, Dennendal was only due to be harvested during the period 2021 until the end of the lease period in 2025.

[8] On 29 August 2016 SanParks gave public notice of acceleration of the felling programme as requested by MTO. The reason advanced for the C change of programme was that the March 2015 fire had damaged most of the plantation compartments in the upper Tokai Forest in 2015. As a result, so it was said, MTO had to immediately harvest all the burnt trees to avoid further damage from infestation by worms which would render them worthless. According to SanParks, holding onto the remaining plantations until the expiry of the lease period became economically D non-viable, more so after the closure of MTO's biggest client, Cape Sawmills (Pty) Ltd.

[9] On 30 August 2016, following some written protestations by representatives of Parkscape, the accelerated felling programme commenced, E leading to the institution of these proceedings. The High Court found that SanParks' authority and obligations in respect of the Tokai Forest, including the authority deriving from the lease agreement, were an exercise of public power conferred on it under the NFA and Nempa. That court also found that the approval of the accelerated felling schedule was an administrative action. Because SanParks had failed to consult the public prior to granting the approval, its decision was reviewed and set F aside.

[10] I turn to deal with SanParks' case in this court, namely, that there was no pleaded statutory duty preventing it from agreeing to MTO's request for variation of the tree-felling schedule and that the management G framework was not established in fulfilment of the requirements of s 39 of Nempa. [2] The submission was that the framework was not a

Dambuza JA (Navsa JA, Leach JA and Davis AJA concurring)

management plan as required in that section and SanParks bore none of A the statutory duties emanating from it.

[11] Furthermore, SanParks contended that Parkscape had failed to prove a right or legitimate expectation to consultation based on the management framework. More particularly, the colour-coded map termed 'plantation harvesting schedule', which was the implementation B plan showing various compartments of plantations to be felled by MTO over the 20-year lease period, was never part of the management framework. According to SanParks the management framework contained no time schedule regulating the harvest periods. On its own, the management framework was merely a vision for the future of the C Tokai Forest and not an implementation plan. No right to procedural fairness could be founded on it. Moreover, the fire had not affected the management framework; it only affected the felling schedule.

[12] In any event, so SanParks asserted, even if the management framework was implicated, its decision to allow MTO to accelerate the D tree-felling schedule, and to exit the lease prematurely, was made in terms of the lease agreement. There was therefore no public, law obligation on it to consult the public prior to granting the request for variation.

[13] It is true that in its founding affidavit Parkscape conflated the E management framework and the management plan. [3] Counsel for Parkscape readily conceded that the management framework is not a

Dambuza JA (Navsa JA, Leach JA and Davis AJA concurring)

management A plan. [4] And indeed the management framework stresses at various points thereof that it is a 'framework for planning' and not a 'plan for implementation'. However, under the heading 'Proposals' in ch 4 of the management framework the following appears:

'The overall approach is to indicate how the landscape will evolve in B Tokai and Cecilia as it changes in time from a Plantation to a National Park over the next 20 years. The proposals are presented at a broad landscape level, as a framework and not a detailed plan. This avoids the pitfalls of an inflexible 20-year blue print plan and provides the opportunity for the broad landscape level proposals to be fleshed out and detailed through lower level implementation plans which address C site specific issues and areas.'

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