THE Supreme Court of Appeal (SCA) has confirmed a High Court order that blocked SA National Parks from the further felling of pine trees in part of the Tokai plantation within the Table Mountain National Park (TMNP), before further consultation with the public.
This decision, by a four-to-one majority of SCA judges, was handed down in Bloemfontein last month, where SANParks’ appeal against the lower court’s decision was dismissed with costs.
SANParks had appealed last year’s ruling by Western Cape High Court judge Pat Gamble in favour of non-profit community group Parkscape that was opposed to the accelerated felling of the pines in Tokai’s Dennedal compartment.
Dennedal, in the lower Tokai area, is a popular recreational area for walkers, horse riders and cyclists, but it also harbours important remnants of a critically endangered indigenous vegetation type, Cape Flats Sand Fynbos, that SANParks and conservation botanists are desperate to restore and rehabilitate.
Pines have been planted for commercial purposes on the Cape Peninsula since the late 19th and early 20th century. In 1999, the national Cabinet decided to phase out commercial forestry in all areas in the country regarded as no longer commercially viable or environmentally defensible – so-called “exit areas” that included the Tokai and Cecilia plantations within the Table Mountain National Park.
Pines trees at both Tokai and Cecilia were to be felled progressively by private company MTO Forestry in terms of a 20-year lease with SANParks that started in 2005. This meant that some areas – like Dennedal, scheduled to be harvested between 2021 and 2025 – would have been available for recreational use by the public until then. In the meantime, and as outlined in the TMNP’s 15-year Management Framework developed through a comprehensive public participation process, SANParks was to develop its own shade walks and other recreational facilities while the pines were coming down.
But in 2015 devastating wildfires swept through the large tracts of the Peninsula and the TMNP, including 600ha of the Tokai plantation area. Because these fires severely damaged huge swathes of pines, MTO Forestry successfully applied on business grounds to SANParks to accelerate the harvesting of the remaining, undamaged pines.
Clear-felling operations started at Dennedal on 30 August 2016, taking many people by surprise. Parkscape was hurriedly formed to oppose further felling at Dennedal, but it subsequently broadened its mission to “promoting urban recreational areas in buffer zones around the TMNP”.
In court action in late 2016, Parkscape successfully persuaded Judge Pat Gamble of the Western Cape High Court that SANParks should not have agreed to any changes in the pine felling schedule without first going back to the public for further consultations, and that the failure to do this constituted procedural unfairness.
The judge issued an interdict to the effect that no further felling of pines would be permitted at Dennedal, pending new public participation. SANParks took that decision on appeal in Bloemfontein, arguing that its decision to vary the lease and accelerate the felling was taken in terms of contractual provisions and hence not subject to public law processes. It also argued that the decision had not been taken in terms of its statutory duties and was therefore not an administrative decision subject to the Promotion of Administrative Justice Act PAJA).
The appeal was heard on 1st March and the SCA’s decision was handed down on 17th May. Judgment was delivered by Judge of Appeal Nambitha Dambuza, with three of her colleagues concurring. Acting Judge of Appeal Owen Rogers was the lone dissenting voice.
Judge of Appeal Dambuza found that SANParks did have a duty to consult Parkscape before allowing MTO Forestry to vary the previously agreed pine felling programme in terms of their lease agreement.
Inter alia, the judge pointed to the relevant part of SANParks’ management plan for the TMNP for the period 2015 to 2025, which reads:
“SANParks recognises that parks must serve societal values and that they need to be part of and interrelate with the broader landscape and socio-economic context within which they are situated. The goal of the Table Mountain National Park within the public participation process is to work directly with stakeholders to ensure that the stakeholder concerns and aspirations are consistently understood and considered.”
She also pointed out that SANParks’ lease agreement with MTO Forestry recognised the public nature of that agreement, and the rights and obligations of SANParks that flowed from it.
SANParks had engaged in “years of deliberate processes with interested members of the public,” Judge of Appeal Dambuza’s judgment reads.
“It committed itself, both in the framework and the management plan, to ongoing public participation. The management framework embodied clear and reasonable undertakings to which the public was entitled to expect adherence, including being heard before decisions which could adversely affect its interests would be made. SANParks’ approval of MTO’s accelerated tree felling, including the seven year premature lease exit, was an issue on which members of the affected public could rightly expect to be heard.”
In his dissenting view, Acting Judge of Appeal Rogers said he believed SANParks’ appeal should have been upheld.
This was because SANParks’ decision to allow accelerated felling did not constitute “administrative action” as defined in PAJA. The decision had not meet the legal criteria for “administrative action” as it had not been taken in terms of any legislation, and had not involved the exercise of a “public power” or “public function” and was hence not “of an administrative nature”.
“This makes it unnecessary to decide whether Parkscape established the legitimate expectation on which it founded its case,” he wrote.
Commenting on the SCA decision, Parkscape spokesperson Nicky Schmidt said the organisation believed the judgment “speaks for itself” and sincerely hoped that SANParks was paying close attention to the judges’ comments.
“In the judgement, Judge Dambuza makes it clear that given the extensive public negotiation process involved in the creation of the Tokai Cecilia Management Framework, the public had a right to expect that SANParks would follow a similar consultation process before agreeing to the hasty – and almost clandestine - felling of Lower Tokai,” Schmidt said.
“She [the judge] accordingly recommends that SANParks follow the same process going forward on the matter of Tokai.
“The current Park Management Plan indicates that the Tokai and Cecilia Management Framework requires review, particularly in light of the 2015 fires.
“We would thus hope that SANParks, having now lost (with costs) in both the Cape High Court and the Supreme Court of Appeal will engage with the public, via a full and proper public participation process, on the matter of Lower Tokai and the Tokai and Cecilia Management Framework per se – as they did 12 and eight years ago, and that they will do so as a matter of good faith and as per the terms of NEMA (National Environmental Management Act) and prior to the commencement of felling as per the existing Lower Tokai harvesting schedule.”
* SANParks’ response had not arrived by the time of publication.