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

• Jurisdiction: South Africa

South African National Parks v MTO Forestry (Pty) Ltd and Another
2018 (5) SA 177 (SCA)

2018 (5) SA p177

Citation	2018 (5) SA 177 (SCA)
Case No	446/2017; [2018] ZASCA 59
Court	Supreme Court of Appeal
Judge	Navsa JA, Leach JA, Dambuza JA, Davis AJA and Rogers AJA
Heard	May 17, 2018
Judgment	May 17, 2018
Counsel	JJ Gauntlett SC (with HJ de Waal) for the appellant.; JA Newdigate SC (with DW Baguley) for the second respondent.

Flynote : Sleutelwoorde

Administrative law — Administrative action — What constitutes — SanParks agreeing, on forestry company's request, to vary their lease's tree-felling schedule — Whether Parkscape, an association, had legitimate expectation to be heard before SanParks made its decision — Promotion of C Administrative Justice Act 3 of 2000.

Headnote : Kopnota

In the early-2000s the Department of Water Affairs and Forestry awarded a tender for the management and felling of the Tokai plantation, which is a state forest, to MTO, a forestry company. D

The Minister of Water Affairs, acting under s 27 of the National Forests Act 84 of 1998, and MTO, then concluded a lease. It detailed, inter alia, the parties' rights and duties with respect to the felling. Annexed to the lease was a tree-felling schedule.

The Department later assigned the lease, and the Minister assigned his statutory powers in the forest (s 47), to SanParks. E

SanParks is an entity created by the repealed National Parks Act 57 of 1976, and is continued in its existence by the National Environmental Management: Protected Areas Act 57 of 2003 (NEMPA). NEMPA duties SanParks, inter alia, with the management of the national protected area in which the plantation falls.

In 2015 a fire destroyed the greater part of the trees MTO was yet to fell, causing F it to conclude that it would no longer be commercially viable to maintain the agreed felling schedule.

Accordingly, it asked for, and SanParks agreed to, a variation of the schedule, which accelerated the felling.

MTO then began felling at this accelerated rate.

This caused Parkscape, an association concerned with the plantation area, to G obtain an interdict; and to institute proceedings to review and set aside SanParks' decision agreeing to the schedule change.

The High Court found that the decision was administrative action; that Parkscape had had a legitimate expectation of a hearing before it was made; and that SanParks' failure to give the hearing was procedurally unfair. It set the decision aside.

SanParks then appealed to the Supreme Court of Appeal. Dambuza JA wrote the H judgment for the court.

The first issue was whether the decision was indeed administrative action, specifically whether it was a 'decision taken . . . by . . . an organ of state, when . . . exercising a public power . . . in terms of any legislation . . .'. Held, that it was: SanParks derived its powers as lessor from the National I Forests Act; its exercise of its lease rights fell within its powers under NEMPA; and the lease itself, and the lessor's rights thereunder, had a public nature. (See [18], [20], [22] and [29].)

The second issue was whether Parkscape had a legitimate expectation of a hearing, before the decision. Held, that it did. This derived from SanParks' prior consultation with the public on management of the forest; from its J

2018 (5) SA p178

commitment A to ongoing consultation expressed in the forest's management framework and plan; and from its undertaking in the framework to hear the public, before making decisions adverse to its interests. (See [5], [16], [30] and [32].)

Appeal dismissed (see [33]).

In a concurring judgment, Navsa JA and Davis AJA suggest certain indicators B which might be used in deciding whether administrative law should govern a contract between a private party and an organ of state. (See [34] and [37].)

These are:

•

The parties' powers;

•

whether the public's interest is affected by the exercise of the contractual C right concerned;

•

the dispute resolution process agreed;

•

whether the state is acting fairly; and

•

proportionality. (See [37] – [39].)

They conclude that each case is to be decided on its merits, and a value judgment made (see [38]).

Rogers D AJA, dissenting, would have upheld SanParks' appeal, and replaced the High Court's order with one dismissing Parkscape's application (see [87]).

In his view, the decision was not administrative action (see [40] and [47]). This, as:

•

It was not taken 'in terms of any legislation' (see [49] – [50], [55], [57] – [58]);

•

it E did not involve the exercise of a 'public power' or a 'public function' (see, inter alia, [63] – [64], [66] – [69], [71], [77] – [78] and [85]); and

•

it was not of an 'administrative nature' (see [62], [81] and [84] – [85]).

Cases cited

Southern Africa

Administrator, F Natal, and Another v Sibiya and Another 1992 (4) SA 532 (A): referred to

Administrator, Transvaal and Others v Traub and Others 1989 (4) SA 731 (A): referred to

Administrator, Transvaal, and Others v Zenzile and Others 1991 (1) SA 21 (A) ((1991) 12 ILJ 259; [1990] ZASCA 108): referred to

Association G of Regional Magistrates of Southern Africa v President of the Republic of South Africa and Others 2013 (7) BCLR 762 (CC) ([2013] ZACC 13): referred to

Bryer and Others NNO v Teabosa CC t/a Simon Chuter Properties and Another 1993 (1) SA 128 (C): referred to

Bullock NO and Others v Provincial Government, North West Province, and Another H 2004 (5) SA 262 (SCA) ([2004] 2 All SA 249): referred to

Calibre Clinical Consultants (Pty) Ltd and Another v National Bargaining Council for the Road Freight Industry and Another 2010 (5) SA 457 (SCA): referred to

Cape Metropolitan Council v Metro Inspection Services (Western Cape) CC and Others 2001 (3) SA 1013 (SCA) (2001 (10) BCLR 1026; [2001] ZASCA 56): not followed

Chirwa I v Transnet Ltd and Others 2008 (4) SA 367 (CC) ((2008) 29 ILJ 73; 2008 (3) BCLR 251; [2008] 2 BLLR 97; [2007] ZACC 23): referred to

Democratic Alliance v Speaker, National Assembly and Others 2016 (3) SA 487 (CC) (2016 (5) BCLR 577; [2016] ZACC 8): referred to

FW Knowles (Pty) Ltd v Cash-In (Pty) Ltd 1986 (4) SA 641 (C): referred to

Government of the Republic of South Africa v Thabiso Chemicals (Pty) Ltd J 2009 (1) SA 163 (SCA) ([2009] 1 All SA 349): distinguished

2018 (5) SA p179

Hibiscus Coast Municipality v Margate Amusement Park (Pty) Ltd and Another A [2016] ZAKZPHC 24: referred to

Investigating Directorate: Serious Economic Offences and Others v Hyundai Motor Distributors (Pty) Ltd and Others: In re Hyundai Motor Distributors (Pty) Ltd and Others v Smit NO and Others 2001 (1) SA 545 (CC) (2000 (2) SACR 349; 2000 (10) BCLR 1079; [2000] ZACC 12): referred to B

KwaZulu-Natal Joint Liaison Committee v MEC for Education, KwaZulu-Natal and Others 2013 (4) SA 262 (CC) (2013 (6) BCLR 615; [2013] ZACC 10): referred to

Logbro Properties CC v Bedderson NO and Others 2003 (2) SA 460 (SCA) ([2003] 1 All SA 424; [2002] ZASCA 135): dictum in para [7] applied

Lunt v University of Cape Town and Another 1989 (2) SA 438 (C): C referred to

Minister of Land Affairs and Agriculture and Others v D & F Wevell Trust and Others 2008 (2) SA 184 (SCA) ([2007] ZASCA 153): referred to

Mustapha and Another v Receiver of Revenue, Lichtenburg and Others 1958 (3) SA 343 (A): dictum at 347D – G applied

National Director of Public Prosecutions v Phillips and Others 2002 (4) SA 60 (W) (2001 (2) SACR 542; 2002 (1) BCLR 41): referred to D

National Horseracing Authority of Southern Africa v Naidoo and Another 2010 (3) SA 182 (N): referred to

Parkscape v MTO Forestry (Pty) Ltd and Another 2018 (1) SA 263 (WCC): confirmed on appeal

President of the Republic of South Africa and Others v South African Rugby Football Union and Others 2000 (1) SA 1 (CC) (1999 (10) BCLR 1059; E [1999] ZACC 11): referred to

South African Veterinary Council and Another v Szymanski 2003 (4) SA 42 (SCA) (2003 (4) BCLR 378): dictum in para [19] applied

Staffmed CC v MEC for Health (Western Cape) and Another [2014] ZAWCHC 94: referred to

Umfolozi Transport (Edms) Bpk v Minister van Vervoer [1997] 2 All SA 548 (SCA): F referred to.

Australia

Cathedral Place Pty Ltd v Hyatt of Australia Ltd [2003] VSC 385: referred to

Deputy Commissioner of Taxation of the Commonwealth of Australia v Casualife Furniture International Pty Ltd [2004] VSC 157: referred to G

Secured Income Real Estate (Australia) Ltd v St Martins Investments Pty Ltd [1979] HCA 51 ((1979) 144 CLR 596): referred to.

Canada

1455202 Ontario Inc v Welbow Holdings Ltd 2003 CanLII 10572: referred to

Dominion Stores Ltd v Bramalea Ltd [1985] OJ No 1874: referred to. H

England

Bromley Park Garden Estates Ltd v Moss [1982] 2 All ER 890 (CA): referred to

Hampshire County Council v Supportways Community Services Ltd [2006] EWCA Civ 1035 (CA): referred to I

Houlder Brothers & Co Ltd v Gibbs [1925] Ch 575: referred to

International Drilling Fluids Ltd v Louiseville Investments (Uxbridge) Ltd [1986] Ch 513: referred to

R v Chief Rabbi of the United Hebrew Congregations of Great Britain and the Commonwealth, Ex parte Wachmann [1993] 2 All ER 249 (QB) ([1992] 1 WLR 1036): referred to J

2018 (5) SA p180

Shah A and Others v Colvia Management Company Ltd [2008] EWCA Civ 195: referred to.

Legislation cited

Statutes

The Promotion of Administrative Justice Act 3 of 2000: see Juta's Statutes of South Africa 2016/17 vol 5 at 1-258.

Case Information

JJ B Gauntlett SC (with HJ de Waal) for the appellant.

JA Newdigate SC (with DW Baguley) for the second respondent.

An appeal from the Western Cape Division, Cape Town (Gamble J). The court's judgment (Dambuza JA) is at [1] – [33]; the concurring judgment (Navsa JA and Davis AJA) at [34] – [39]; and...