The subject matter of the dispute between the parties to this appeal is a natural forest. The forest comprises a sensitive dune forest ecosystem and is a critical biodiversity area. The source of the dispute is that the owners of seven properties located within the forest, represented by the appellant, the Long Beach Home Owners Association, wish to construct homes on their properties. Before doing so, a licence has to be obtained in terms of s7(4) of the National Forests Act 84 of 1998 from the first respondent, the Department of Agriculture, Forestry and Fisheries, the executive head of which is the second respondent, the Minister of Agriculture, Forestry and Fisheries. The application by the appellant for the requisite licence was, however, refused by the first respondent. The reasons furnished by the first respondent for the refusal of the licence were as follows:
‘1. Section 3(3)(a) of the National Forests Act of 1998 (Act 84 of 1998) determines that: ”natural forests must not be destroyed save in exceptional circumstances where, in the opinion of the Minister, a proposed new land use is preferable in terms of its economic, social and environmental benefits. This principle not only applies to trees, but to the natural forest ecosystem as a whole, including undergrowth and wildlife, and even to disturbed forest ecosystems, as determined by legal precedent; and
- Residential development in natural forests is not considered an exceptional circumstance.’
Aggrieved by the decision of the first respondent, the appellant launched an application before the Gauteng Division of the High Court, Pretoria. An order was sought reviewing and setting aside the first respondent’s decision and substituting for that decision the grant of the requisite licence to the appellant. In the alternative, an order was sought referring the matter back to the first respondent for reconsideration. The court a quo, however, dismissed the application, made no order as to costs and then granted leave to appeal to the Supreme Court of Appeal.
In summary, the appellant’s argument was that if the respondent had properly exercised its discretion in terms of s 7(4) of the Act, it would have concluded that the natural forest was not going to be destroyed, which meant that s 3(3)(a) was not applicable, and even if it was, exceptional circumstances were present justifying the granting of the licence to the appellant. The court a quo did not decide the application on the basis that the first respondent had failed to properly exercise its discretion, but on the basis that there was insufficient evidence to determine whether the natural forest would be ‘destroyed’ by the development, for the purposes of s 3(3)(a) of the Act. It held that in the absence of such a factual finding the provisions of the section were not activated, ‘applicable’ or ‘triggered’.
In this approach the reasoning of the court a quo was fundamentally flawed. Before it could be determined on the evidence whether natural forest would be ‘destroyed’, the section had to be interpreted to ascertain the proper meaning of this term. In the absence of this exercise, no yardstick existed in terms of the section, against which the evidence could be measured. The crucial enquiry therefore was whether the first respondent’s interpretation of the section was correct, namely that natural forest is destroyed for the purposes of the Act, if ‘any part of a forest however small, and not a forest in its entirety’ is destroyed. The fundamental flaw in the judgment is readily apparent; ‘whether section 3(a) is applicable’ can only be decided once the correct meaning of the sentence ‘natural forests must not be destroyed’ in the section is determined.
The Honourable Swain JA turned to the interpretation of s 3(3)(a), read together with s 7(1)(a), to determine the meaning of the sentence as well as the nature of the discretion possessed by the first respondent in terms of s 7(4), when considering whether to licence one or more of the activities set out in s 7(1)(a) of the Act. It became clear that the first respondent misconstrued the discretion it possessed in terms of s 7(4) of the Act and the decision of the first respondent was ‘materially influenced by an error of law’ in the interpretation it placed upon the provisions of s 3(3)(a) of the Act.
It was held that the department’s interpretation of section 3(3)(a) of the National Forests Act would have absurd results. Properly interpreted, whether a proposed destruction of indigenous trees would amount to ‘destroying’ natural forest was to be determined on the facts of a given case, and was a matter of degree. In making the determination the administrator had to compare, inter alia, the extent of the trees proposed to be destroyed, and the extent of the forest concerned. (Thus, to destroy one tree in a forest of 10 acres would not be to ‘destroy’ natural forest; but to destroy one acre of those trees would.)
It was held further that the department had reached the conclusion that there were no exceptional circumstances, through a flawed exercise of its discretion. It had applied its policy, that a residential development did not constitute an exceptional circumstance, without considering, as it ought to have, the merits of the association’s application.
The appeal was accordingly upheld, the order of the High Court set aside and substituted with an order setting aside the department’s refusal of the licence, and remitting the association’s application to it.
This case serves to demonstrate and answer the question as to when the destruction of indigenous trees will amount to the destruction of a national forest.
The case answers this question by showing that it will be determined on a case-by-case basis and that it is a matter of degree.
Written by Justin Howard and supervised by Jarryd Spargo, 10 September 2018