South African National Parks v MTO Forestry (Pty) Ltd and Another (446/2017) [2018] ZASCA 59; 2018 (5) SA 177 (SCA) (17 May 2018)

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[2018] ZASCA 59
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South African National Parks v MTO Forestry (Pty) Ltd and Another (446/2017) [2018] ZASCA 59; 2018 (5) SA 177 (SCA) (17 May 2018)

THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Reportable
Case
No: 446/2017
In
the matter between:
SOUTH AFRICAN NATIONAL
PARKS

APPELLANT
and
MTO
FORESTRY (PTY) LTD

FIRST RESPONDENT
PARKSCAPE

SECOND RESPONDENT
Neutral
citation:
South
African National Parks v MTO Forestry (Pty) Ltd & another
(446/2017)
[2018] ZASCA 59
(17 May 2018)
Coram:
Navsa,
Leach and Dambuza JJA and Davis and Rogers AJJA
Heard:
1
March 2018
Delivered:
17
May 2018
Summary:
Administrative
law – whether management framework and totality of relevant
evidence including previous public participation
concluded in
anticipation of implementation of statutory park management plan was
proper basis for legitimate expectation –
document to be
interpreted comprehensively – legitimate expectation
established.
Contractual
power exercised by public body – variation of the contract
constituted administrative action – contractual
rights had to
be exercised within the administrative justice framework –
where procedural fairness requirement not observed
–
administrative action reviewed and set aside.
ORDER
On
appeal from:
Western
Cape Division, Cape Town (Gamble J).
The
appeal is dismissed with costs including the costs of two counsel.
JUDGMENT
Dambuza
JA (Navsa and Leach JJA 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 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 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 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 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
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 Areas Act, 57 of 2003 (NEMPAA).
[4]
Before 2005 the government was responsible for managing the 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 Limited (SAFCOL). On 25 January
2005 the Department of Water Affairs and
Forestry concluded a 20 year
lease 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.
[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 Forest was necessary. Consequently, in late 2006 a
process started to compile the framework. As the forest
fell within a
protected area this process was conducted in terms of NEMPAA. A
public participation process was initiated to identify
shareholders’
concerns. That process revealed divergent views: on-going public
concern about the loss of shade trees on the
one hand, and the loss
of biodiversity on the other. This led to the 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 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, 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 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 to 2025).
[7]
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 exits the
lease at the end of 2017. 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
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 on to the
remaining plantations until the expiry of
the lease period became
economically 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, 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 NEMPAA. 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 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 framework was not established
in fulfilment of
the requirements of s 39 of NEMPAA.
[2]
The submission was that the framework was not a management plan as
required in that section and SANParks bore none of 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 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 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
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
management framework and the management plan.
[3]
Counsel for Parkscape readily conceded that the management framework
is not a management 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 chapter 4 of the management framework
the following appears:
‘
The
overall approach is to indicate how the landscape will evolve in
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 site specific issues and areas.’
As
can be seen, the framework was clearly going to inform the
implementation of the management plan.
[14]
The implementation of the management plan was manifestly guided by
the management framework. In s 9, para 9.1.8 of the ‘Concept

development plan’ the management plan provides:
‘
Tokai
Cecilia Plantation rehabilitation
This
project involves the long term restoration of 600 hectares of
commercial pine plantation to indigenous lowland, granite and

mountain fynbos, riverine corridors and Afro-montane pocket
indigenous forests, while providing for high intensity recreational

activities and ecotourism opportunities
.
The rehabilitation of
upper Tokai plantation will be prioritised due to the fires of March
2015 as the burnt plantation trees need
to be harvested in the short
term. In the light of these changes the Tokai and Cecilia Management
Framework will need to be reviewed’
.
There
was therefore an express acknowledgement in the management plan that
a change in the implementation schedule warranted revision
of the
management framework. This puts paid to SANParks’ contention
that the management framework was not affected by the
March 2015
fires.
[15]
Further, as counsel for Parkscape submitted, the management framework
had to be read comprehensively, together with other documents,
as
expressly commanded therein. The first of these is the ‘Background
information document’ concluded in August 2006.
This was a
planning document for processes that would culminate in the
management framework. Incorporated in the Background information

document was the ‘Baseline Information report’, dated 22
September 2006, which was a description of the proposed project,
its
context, details of the public participation process and a
presentation of the proposals of a scoping study.
[16]
The Baseline information report included the harvesting schedule for
Tokai Forrest. The harvesting schedule had in fact been
put up by MTO
and SANParks as the intended tree felling schedule. It preceded the
management framework and formed part of the stakeholder
engagement
process which culminated in the framework. It informed the transition
planting areas embodied in the management framework.
Significantly,
the framework itself, in para 1.1, states the following:
‘
The
Management Framework indicates broad recreational areas,
rehabilitation priorities and areas to be maintained as shaded
landscapes
or “transition areas”, as well as eco-tourism
and other management uses. The Management Framework provides a basis
for further, more detailed planning and management.
The
Framework should not be regarded as a fixed document, but rather as a
dynamic, living management tool, which can be reviewed
and updated on
a five yearly basis in alignment with SANParks adaptive management
system.’
In
adopting this approach, SANParks quite obviously envisaged
prospective ongoing consultation in relation to the management of
the
TMNP, including the Tokai and Cecilia Plantations. It is tantamount
to a commitment. That commitment found its way into the
management
plan, the relevant part of which is dealt with in the next paragraph.
[17]
The relevant part of SANParks’ management plan for the period
2015 to 2025, dated November 2015, reads as follows:
‘
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. Therefore, stakeholders and interested and affected
parties were included in the revision process of the Park Management

Plan by notifying them of participation processes through mechanisms
suitable for the different stakeholder groups. These processes

provided the opportunity for input from all stakeholders within
reasonable timeframes, with the emphasis on sharing of information

and joint learning.’
Further,
the management plan goes on to say:
‘
The
adaptive planning process that was followed was designed to (a) help
stakeholders express opinions and values in a structured
way, (b) to
use the opinions and expressed values to formulate a mission for
TMNP, and (c) to translate the mission into management
objectives
that reflect the values as expressed by stakeholders.’
[18]
SANParks’ contention that its approval of the variation of the
harvesting
schedule was purely a contractual matter, governed by
clause 10
[5]
of the lease
agreement requires the antecedent determination of the legal nature
of its decision. The issue is whether its approval
of the accelerated
harvesting plan constituted administrative action in terms of the
Promotion of Administrative Justice Act 3
of 2000 (PAJA).
[19]
The definition of administrative action in s 1 of PAJA is:
‘
In
this Act, unless the context indicates otherwise-
“
Administrative
action”
means any
decision taken, or any failure to take a decision, by-
(a)
an organ of state, when-
(i)
exercising a power in terms of the Constitution or a provincial
constitution;
or
(ii)
exercising a public power or performing a public function in terms of
any legislation;
or
(b)
a natural or juristic
person, other than an organ of state, when exercising public power or
performing a public function in terms
of an empowering provision,
which adversely affects the rights of any person and which has a
direct, external legal effect, but
does not include . . .’
[20]
It is not in dispute that SANParks is an organ of State. It was
established in terms of s 5 of the now repealed National Parks
Act 57
of 1976. Its functions are set out in s 55 of NEMPAA. They include
the management, protection and conservation of all existing
national
parks, protected areas and heritage sites assigned to it. The powers
assigned to it by the Minister of Water Affairs and
Forestry include
the promotion of sustainable management of forests for the benefit of
the public. It exercises contractual powers
in respect of the lease
agreement as a result of the assignment. Importantly, SANParks
derived the powers as lessor under the lease
agreement from s 27(1)
of the NFA.
[21]
Section 27 of the NFA empowers the Minister to lease a state forest
or part of it to any person. In terms of s 27(2) the lease
agreement
may provide for the carrying on, by the lessee of any of the
activities referred to in s 23(1). That section (23(1))
provides for,
amongst other things, the felling of trees and removal of timber.
However, those provisions have to be considered
alongside the
functions of SANParks provided for by s 55 of NEMPAA. Section
55(1)
(a)
places an obligation on SANParks to ‘manage all existing
national parks . . . in accordance with this Act or any specific

environmental management act referred to in the National
Environmental Management Act’. Section 55(1)
(b)
in peremptory terms charges SANParks to ‘protect, conserve and
control those national parks and other protected areas, including

their biological diversity’.
[22]
It will be recalled that the lease in question was concluded with the
Minister of Water Affairs in 2005 in terms of s 27(1)
of the NFA.
SANParks’ public law responsibilities as set out in s 55 of
NEMPAA, the public undertakings to consult and the
public statements
which implemented these undertakings echo through the lease
agreement. The agreement envisaged the assignment
of the Minister’s
rights and obligations flowing from the lease to SANParks. The
conclusion of the lease agreement and the
exercise of powers pursuant
to it was clearly an exercise of public power. The lease agreement
itself recognises the public nature
of the lease agreement and the
rights and obligations of the lessor that flow therefrom. Its
obligation to consult the public is
stipulated in clause 40 of the
lease agreement as follows:
‘
40
Consultation with
communities
40.1
The tenant will of necessity be involved in ongoing consultation and
liaison with surrounding communities.
Government, as lessor, will
also from time to time be involved in such consultations.
40.2
The tenant together with the Government shall determine procedures
for such consultations and liason
whereafter the tenant will be
required to implement such procedures within 18 (eighteen) months of
the commencement date.
40.3
Any dispute in regard to such procedures between the lessor and the
tenant shall be referred to arbitration
in terms of clause 49.
40.4
The tenant shall report to Government on the working of each
consultation and liason structure in the
manner determined and in
accordance with the provisions of clause 16.1.7’
[23]
The submission, on behalf of SANParks, that the exercise by an organ,
of state of rights under a contract attracts no public
law obligation
was considered by this court in
Logbro
Properties CC v Bedderson NO & others.
[6]
As in this case, the appellant in
Logbro
,
relied on
Cape
Metro Council v Metro Inspection Services (Western Cape) CC &
others
[7]
for the contention that public law responsibilities had no place in a
contract concluded by a state organ.
[24]
In
Logbro
the contention was that conditions stipulated in a tender gave the
Western Cape Province a contractual right to withdraw a tender

‘without having to pass the scrutiny of lawful administrative
action’.
[8]
In para 7 of
the judgment Cameron JA held as follows:
‘
Even
if the conditions constituted a contract (a finding not in issue
before us, and on which I express no opinion), its provisions
did not
exhaust the province’s duties towards the tenderers. Principles
of administrative justice continued to govern that
relationship, and
the province in exercising its contractual rights in the tender
process was obliged to act lawfully, procedurally
and fairly. In
consequence, some of its contractual rights – such as the
entitlement to give no reasons – would necessarily
yield before
its public duties under the Constitution and any applicable
legislation.
This
is not to say that the conditions for which the province stipulated
in putting out the tender were irrelevant to its subsequent
powers.
As will appear, such stipulations might bear on the exact ambit of
the ever-flexible duty to act fairly that rested on
the province. The
principles of administrative justice nevertheless framed the parties’
contractual relationship, and continued
in particular to govern the
province’s exercise of the rights it derived from the
contract.’ (Footnotes omitted)
[25]
Logbro
highlighted that
Cape
Metropolitan Council
is
no authority for a general principle that a public authority
empowered by statute to contract may always exercise its contractual

rights without regard to public duties of fairness. More importantly,
the court in
Logbro
stressed the distinguishing factors in that case that underpinned the
court’s decision. It noted that the tender
[9]
and employment
[10]
cases were
not relevant to the facts in
Cape
Metropolitan Council
because of the equal power of the contracting parties in that case.
[26]
The reliance by the appellant on
Government
of the Republic of South Africa v Thabiso Chemicals
[11]
does not take the matter any further. Unlike in this case, the
dispute, in
Thabiso
,
as well as in
Cape
Metropolitan Council
turned
on the contract entered into between the two parties. The pivotal
issue in
Thabiso
was the limited factual determination into whether the facts relied
on by the Government in cancelling a tender could sustain the

cancellation under the relevant clause in the contract.
Thabiso
did not concern the effect that the exercise of a power sourced in a
contract would have on the public and its interests.
[27]
Already, in the pre-constitutional era this court acknowledged that
in a contractual context circumstances may be such as to
compel
notions of fairness and the application of the principle of
legitimate expectation. In this regard, see
Lunt
v University of Cape Town & another
.
[12]
Professor Hoexter warns against the dangers of formalism in that an
exclusive focus on the concept of a contract might distract
from the
reasons why fairness ought to be observed in a particular case,
whether it be of a private or of public nature.
[13]
[28]
In
Administrator
of Transvaal & others v Traub & others
,
[14]
Corbett CJ in laying down the requirements for the doctrine of
legitimate expectation, after an examination of authorities
elsewhere,
said the following at 761B-C:
‘
And
it was evolved, as I read the cases, in the social context of the age
in order to make the grounds of interference with the
decisions of
public authorities which adversely affect individuals co-extensive
with notions of what is fair and what is not fair
in the particular
circumstances of the case.’
[29]
More than five decades ago, in a minority judgment, Schreiner JA, in
Mustapha
and another v Receiver of Revenue, Lichtenburg & others
,
[15]
said the following:
‘
Although
a permit granted under sec. 18 (4) of Act 18 of 1936 has a
contractual aspect, the powers under the sub-section must be

exercised within the framework of the Act and the regulations which
are themselves, of course, controlled by the Act. The powers
of
fixing the terms of the permit and of acting under those terms are
all statutory powers. In exercising the power to grant or
renew, or
to refuse to grant or renew, the permit, the Minister acts as a state
official and not as a private owner, who need listen
to no
representations and is entitled to act as arbitrarily as he pleases,
so long as he breaks no contract. For no reason or the
worst of
reasons the private owner can exclude whom he wills from his property
and eject anyone to whom he has given merely precarious
permission to
be there. But the Minister has no such free hand. He receives his
powers directly or indirectly from the Statute
alone and can only act
within its limitations, express or implied. If the exercise of his
powers under the sub-section is challenged
the Courts must interpret
the provision, including its implications and any lawfully made
regulations, in order to decide whether
the powers have been duly
exercised. . .’ (Footnotes omitted)
These
remarks are apposite to this case. Insofar as the approval of the
acceleration of the felling schedule is concerned, the contractual

rights and responsibilities arising from the lease agreement also
fell within s 55 of NEMPAA.
[30]
As demonstrated above, SANParks engaged in years of deliberate
processes with interested members of the public. 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.
[16]
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.
[31]
It is also material that on 29 August 2016, SANParks issued a public
statement to residents in the affected areas in which
it sought to
justify its decision in favour of accelerated harvesting. It went as
far as issuing an apology for the inconvenience
caused to the public
by the accelerated harvesting activities. This letter, together with
a detailed position statement published
on its website on 30 August
2016, which explained its decision in favour of MTO, is indicative of
SANParks’ own recognition
that the public had, at the very
least, an entitlement to information about the decision to harvest, a
situation which would not
prevail in a purely contractual partnership
between SANParks and MTO.
[32]
Having regard to the factual background set out above, considering
SANParks’ statutory obligations and the principles
set out in
case law referred to above, it is clear in my view that Parkscape and
its members had a legitimate expectation to be
consulted before the
decision to vary the lease was made. The court below was correct in
holding in favour of Parkscape.
[33]
In consequence, the following order is issued:
The
appeal is dismissed with costs including the costs of two counsel.
___________________
N Dambuza
Judge of Appeal
Navsa
JA and Davis AJA:
[34]
We have had the benefit of reading the judgment of our colleague
Dambuza JA. We are in complete agreement with her reasoning
and the
conclusions reached by her. In light of academic warnings against
adopting a formalistic approach when considering rights
of parties in
relation to a contract involving a state organ, we consider it
necessary to comment further on that aspect.
[17]
[35]
As pointed out by our colleague, this court, in
Logbro
,
was astute to recognise, under the circumstances of that case,
notwithstanding a contractual right of provincial government to

withdraw a tender, the relationship between the public authority and
the private tendering party was governed by the principles
of
administrative law.
Logbro
was
intent at ensuring that the position maintained in
Cape
Metro
was circumscribed.
[18]
In the
circumstances in
Logbro
,
there was not yet an equality of arms between the private party
tendering to provide services to the provincial government and
the
latter. That case involved litigation between competing parties in a
tender process. It concerned a challenge to the award
of the tender.
[36]
The ambit of
Cape
Metro
,
confirmed in
Logbro
,
was as follows: the Metropolitan Council cancelled a contract with a
private contractor. The main issue was whether the cancellation
in
terms prescribed by the contract involved administrative law
principles. On the facts of that case, this court held that the

cancellation did not constitute administrative action. It was this
distinction that
Logbro
sought to make.
[37]
There is no bright-line test for determining whether administrative
principles intrude in relation to a contract involving
an organ of
state and a private party. However, there are indicators. One might
rightly ask whether coercive state power can be
brought to bear by a
state organ on the private party. Further, one will be constrained to
consider whether the public interest
is affected by the exercise of
the contractual right. In
Bullock NO v Provincial Government,
North West Province
2004 (5) SA 262
(SCA), this court considered
whether the grant by the provincial authority of a servitude in
relation to the relevant part of the
foreshore of a dam constituted
administrative action. In that case the right to a servitude was
claimed in terms of a contract
concluded decades before with the
provincial authority’s predecessor. This court, in rejecting
the claim as being purely
contractual, said the following:
‘
A
decision by the first respondent to grant, in perpetuity, a right
over part of the foreshore to one property owner to the exclusion
of
all other persons, significantly curtails access to that resource by
the public. In my view, for the reasons which follow, the
decision to
grant the servitude can and must be classified as administrative
action . . . .’
[19]
The
contractual terms, seen contextually, will also be scrutinised to
determine how the parties envisaged disputes in relation to
their
agreement being dealt with prospectively.
[38]
Having regard to the authorities referred to by Dambuza JA, including
Traub
,
a court should be concerned with whether, in the circumstances of the
case, the State can be said to be acting fairly, which includes,
but
is not limited to, questions of procedural propriety. It does not
necessarily follow, where there is an equality of arms in
relation to
the conclusion of a contract and where the public interest is not
directly involved, that the private party will be
able to resort to
administrative law principles. Each case has to be decided on its own
merits and courts will exercise a value
judgment.
[39]
Proportionality is a constitutional watchword, the exercise of which,
can be employed in adjudicating whether to import administrative
law
principles into cases involving an organ of state and a private
party. In the present case, as demonstrated by our colleague,
those
indicators compel the conclusion reached by her, namely, that
Parkscape and its members had a legitimate expectation to be

consulted before the decision to vary the lease was made. The
application of the administrative law principle that parties affected

by a decision of an organ of state in this case can hardly be said to
place a disproportionate burden on SANParks.
___________________
M Navsa
Judge of Appeal
___________________
D Davis
Acting
Judge of Appeal
Rogers
AJA
[40]
I differ
from the majority’s conclusion. In my view the appeal should be
upheld for the reason that the appellant’s
decision did not
constitute ‘administrative action’ as defined in PAJA
because the decision (a) was not taken ‘in
terms of any
legislation’ and (b) did not involve the exercise of a
‘public power’ or ‘public function’
and was
not ‘of an administrative nature’. This makes it
unnecessary to decide whether Parkscape established the legitimate

expectation on which it founded its case. I shall refer to the
parties and the relevant legislation by the same abbreviated
references
used in my colleague’s judgment.
‘
in terms of any
legislation’
[41]
In order to
be reviewable in terms of PAJA, the impugned act must be
‘administrative action’ as defined in s 1
of the
Act. In relevant part the definition reads thus (my emphasis):
‘
any
decision
taken, or any failure to take a decision, by –
(a)
an
organ of state, when –
(i) exercising
a power in terms of the Constitution or a provincial constitution; or
(ii) exercising
a public power or performing a public function
in terms of any
legislation
; or
(b)
a
natural or juristic person, other than an organ of state, when
exercising public power or performing a public function
in
terms of an empowering provision
,
which
adversely affects the rights of any person and which has a direct,
external legal effect, but does not include – . .
.’.
[42]
The terms
‘decision’ and ‘empowering provision’ which I
have underlined are also defined (again my emphasis):
A
‘decision’ means ‘any decision of an administrative
nature made, proposed to be made, or required to be made,
as the case
may be, under an
empowering provision
, including a decision
relating to – . . .’.
An
‘empowering provision’ means ‘a law, a rule of
common law, customary law, or
an agreement
, instrument or
other document in terms of which an administrative action was
purportedly taken’.
[43]
The action
which Parkscape applied to review was SANParks’ decision to
consent to an accelerated felling schedule. Its review
was brought in
terms of s 6(2)
(c)
read with s 3(1) of PAJA, the essential allegation being that
the decision was taken in a procedurally unfair way, ie without

hearing Parkscape and members of the public, despite the fact that
the decision materially and adversely affected the legitimate

expectations of Parkscape and members of the public within the
meaning of s 3(1).
[44]
The lease
divided the plantations into compartments. Clause 10.1 required MTO
to clear-fell and release the compartments by not
later than 20 years
after the commencement date, unless the lessor in writing agreed to a
longer period. Clause 10.2 stipulated
that the clear-felling should
take place in accordance with the schedule annexed to the lease as
annexure K. That annexure specified
the ‘last date’ by
which each compartment was to be felled.
[45]
Clause 10.4
provided that on or before the end of February each year MTO was to
notify SANParks of the clear-felling programme it
intended to
implement over the next six years, highlighting any variation from
the previous year’s submission and from annexure
K. Clause 10.5
gave SANParks 90 days, from receipt of the programme, to notify MTO
whether it accepted any variation to annexure
K. If SANParks rejected
the variation and if MTO was of the view that SANParks was being
unreasonable, MTO was required to notify
SANParks accordingly, giving
reasons for its view. If the parties were unable to resolve their
dispute within 90 days of MTO’s
notice challenging the
decision, MTO was entitled to refer the dispute to arbitration in
terms of clause 49.
[46]
Devastating
fires in the Cape Peninsula in March 2015 damaged large parts of the
plantations. As a result MTO, acting in terms of
clause 10.4, asked
SANParks to consent to an accelerated felling schedule. From a
commercial perspective, there were sound reasons
for this request.
SANParks considered the request in terms of clause 10.5 and gave its
consent. That is the decision attacked on
review.
[47]
If clause
10.5 was the source of SANParks’ power to consent to an
accelerated felling schedule, as seems to me to be the case,
its
decision was not ‘administrative action’ as defined. To
constitute ‘administrative action’, the action
(a) must
be a ‘decision’ as defined in PAJA; and (b) must
meet the further requirements contained in the
definition of
‘administrative action’.
[48]
If
SANParks’ decision was ‘of an administrative nature’,
which I shall assume for present purposes to be the case,
it was a
‘decision’ as defined because it was made in terms of an
‘empowering provision’, namely ‘an
agreement’.
[49]
This takes
one to the definition of ‘administrative action’. Since
it is common cause that SANParks is an ‘organ
of state’
for purposes of para
(a)
of the definition of ‘administrative action’, one
requirement imposed by the definition is that SANParks’
decision
should have been one taken in terms of the Constitution or a
provincial constitution or any legislation. The fact that the
decision
was taken in terms of the broader range of instruments
comprehended within the definition of ‘empowering provision’

is insufficient. It is necessary that the ‘empowering
provision’ be located in the Constitution or in a provincial

constitution or in legislation.
[50]
That, I
would have thought, should be the end of the matter. ‘Parkscape’s’
counsel, seeking to avoid this conclusion,
submitted that the phrase
‘in terms of an empowering provision’ in para
(b)
of the definition of ‘administrative action’ should be
read as applying to para
(a)
as well. The majority does not embrace this conclusion and it cannot
be reached by any legitimate process of statutory interpretation.
The
lawmaker chose to deal with organs of state on the one hand, and
natural and juristic persons on the other, in separate paragraphs
of
the definition, joined by the disjunctive ‘or’. When
identifying the source of power applicable to organs of state
in para
(a)
,
the lawmaker, which could have used the term ‘empowering
provision’ if that is what it meant, instead selected a
specific subset of empowering sources. The fact that in para
(b)
of the same definition the lawmaker chose the term ‘empowering
provision’ demonstrates that it deliberately refrained
from
using that term in para
(a).
[51]
We were
referred during argument to Professor Hoexter’s criticism of
the statutory definition of ‘administrative action’
in
chapter 4 of her book
Administrative
Law in South Africa
2
ed. The learned author’s criticisms may have merit but they do
not support an argument that a decision, taken by an organ
of state
in terms of a contract rather than legislation, constitutes
‘administrative action’ as defined. At 218 she
says:
‘
As
we have seen above, in order to perform administrative action a
natural or juristic person must be exercising a public power
or
performing a public function in terms of an “empowering
provision”, which is a rather broad concept. By contrast,

organs of state are held to a more stringent standard. In order to
perform administrative action, an organ of state must either
be
exercising a power in terms of the Constitution or a provincial
constitution; or it must be exercising a public power or performing
a
public function “in terms of any legislation”.’
The
learned author does not say that the term ‘empowering
provision’ should be implied in para
(a)
of the
definition of ‘administrative action’. Rather, she is
making the point that para
(a)
narrows the concept of
‘administrative action’ in relation to organs of state.
[52]
Even if the
definition of ‘administrative action’ were thought in
this respect to be inconsistent with s 33 of
the Constitution,
it cannot be brought into line with s 33 by a process of
interpretation. The duty to construe legislation
in conformity with
the Constitution is subject to the qualification that a
constitutionally compliant meaning must be one which
can reasonably
be ascribed to the lawmaker’s language and is not unduly
strained.
[20]
[53]
One may ask
why the lawmaker made provision for a private party’s
contractual decisions potentially to be reviewable under
PAJA while
not making similar provision in the case of organs of state. The
distinction is not necessarily irrational. Although
the definition of
‘empowering provision’ includes an agreement, it by no
means follows that the lawmaker had in mind
ordinary bilateral
contracts.
[54]
It may well
be that the contractual ‘empowering provisions’ which the
lawmaker had in mind in para
(b)
of the definition of ‘administrative action’ were
contracts by which private bodies exercise governmental functions.

Examples would be the rules and constitutions by which voluntary
associations exercise regulatory functions (for example, in relation

to sporting codes, advertising and the like) and the contracts under
which private bodies render services to the public where the
state
has outsourced such services.
[21]
In the case of organs of state, by contrast, governmental functions
are performed in terms of legislation, not by way of contract.
[55]
In its
reasoning on the public character of SANParks’ decision, the
court a quo placed reliance on s 55(1)
(a)
of the NEMPAA, which provides that SANParks ‘must manage all
existing national parks … in accordance with this Act
and any
specific environmental management Act referred to in the National
Environmental Management Act’. The court a quo
also referred to
s 27 of the National Forest Act 84 of 1998 which empowers the
Minister responsible for forests to lease state
forests. If the court
a quo intended to say that SANParks’ decision to grant consent
to the accelerated felling schedule
was a decision taken in terms of
one or both of these provisions, the finding cannot in my view be
supported. Although Parkscape’s
counsel in the court a quo
relied on s 55(1)
(a)
as a source of power (this was done in a post-hearing note, not on
the papers), they did not attempt to support it on appeal, instead

making the argument that the framers of PAJA must have intended the
phrase ‘made in terms of an empowering provision’
to
apply to para
(a)
of the
definition as well as para
(b).
[56]
The various
judgments of the Constitutional Court in
Chirwa
v Transnet Ltd & others
[2007] ZACC 23
;
2008
(4) SA 367
(CC) have a bearing on this issue. The leading judgments
were given by Skweyiya J and Ngcobo J – a majority of the
justices
concurred in both judgments. Langa CJ, with whom Mokgoro and
O’Regan JJ concurred, gave a minority judgment concurring in

the result but not in the reasoning. The issue in the case was
whether Transnet’s dismissal of an employee was reviewable

under PAJA. Ngcobo J held that the dismissal was not administrative
action for purposes of s 33 of the Constitution and of
PAJA and
thus did not reach the other elements that need to be met for action
to amount to a ‘decision’ and ‘administrative

action’ for purposes of PAJA.
[57]
In
accordance with the principle of subsidiarity, Langa CJ went directly
to the requirements of PAJA. In para 181 he listed the
seven
requirements imposed by PAJA for conduct to be ‘administrative
action’. Since Transnet, like SANParks, is an
organ of state,
one of these requirements was that its decision should have been
taken ‘in terms of any legislation’.
Langa CJ said that
the terms and conditions of service of Transnet’s employees
were controlled through contracts (para 182).
He considered a
contention that, because Transnet was governed by the Legal
Succession to the South African Transport Services
Act 9 of 1989,
legislation was the source of all its powers and functions and
provided the basis for all its operational activities,
including
those of a contractual nature. He rejected the contention (para 183):
‘
This
argument cannot hold water. It would render the requirement that the
decision be taken “in terms of any legislation”

meaningless, as all decisions taken by a body created by statute
would meet the requirement. If that is what the legislature intended,

one would have expected them to have said as much. Instead they chose
to distinguish between powers exercised by the same body,
including a
body created by legislation, according to the source of the power.’
[58]
Although
Langa CJ’s judgment, being a minority judgment, is not binding
on us, this part of the Chief Justice’s reasoning,
concurred in
by two other justices, has strong persuasive value, given that there
is nothing in the majority judgments inconsistent
with it. In my
view, the Chief Justice’s finding that Transnet’s
termination of Chirwa’s employment contract
was not a decision
taken ‘in terms of any legislation’ is equally applicable
to the present case. Section 27 of the
National Forest Act was the
source of the Minister’s power to conclude the lease. Once,
however, the lease was concluded,
it was to the contract that one had
to look to determine the rights and obligations of the parties. The
period of the lease, and
the date by which compartments had to be
clear-felled, was a matter determined entirely by the lease. The
presence or absence of
s 55(1) of the NEMPAA would have no
effect on the existence and scope of the contractual ‘power’.
‘
public power or
. . . public function’ and ‘of an administrative nature’
[59]
Although
what I have said so far suffices to dispose of the appeal, I shall
consider two other hurdles Parkscape would need to overcome
to
establish reviewability in terms of PAJA. These are the requirements
that the decision in question should have been ‘of
an
administrative nature’ and should have involved the exercise or
performance of ‘a public power’ or ‘public

function’. In
Chirwa
Ngcobo
J held that Transnet’s dismissal of the employee involved the
exercise of a public power but did not amount to ‘administrative

action’ (paras 137-150). This conclusion carried the support of
the six justices who concurred in Ngcobo J’s judgment
generally
as well as of Skweyiya J who concurred in this specific finding (para
73).
[60]
In the
minority judgment, Langa CJ considered that the dismissal was not the
exercise of public power. He identified the following
factors as
being relevant in characterising the power as public or not,
cautioning that none of them is necessarily determinative
(para 186):
‘
(a) the
relationship of coercion or power that the actor has in its capacity
as a public institution; (b) the impact of
the decision on the
public; (c) the source of the power; and (d) whether there
is a need for the decision to be exercised
in the public interest.’
[61]
In
disagreeing with Langa CJ’s characterisation of the power at
issue in
Chirwa
,
Ngcobo J said the following (para 138):
‘
I
am unable to agree with the view that in dismissing the applicant
Transnet did not exercise public power. In my view, what makes
the
power in question a public power is the fact that it has been vested
in a public functionary, who is required to exercise the
power in the
public interest. When a public official performs a function in
relation to his or her duties, the public official
exercises public
power. I agree with Cameron JA that Transnet is a creature of
statute. It is a public entity created by the statute
and it operates
under statutory authority. As a public authority, its decision to
dismiss necessarily involves the exercise of
public power and,
“(t)hat power is always sourced in statutory provision, whether
general or specific, and behind it, in
the Constitution”.’
[62]
The factors
bearing on the question whether conduct involves the exercise of a
public power may also be regarded as relevant to
the question whether
the conduct is of an administrative nature. There is not a bright
line between these two prerequisites for
‘administrative
action’. I shall thus take them together.
[63]
I agree
with Dambuza JA that the conclusion of the lease was an exercise of
public power. However, once the contract came into existence,
a
commercial contract in which DWAF did not negotiate from a position
of superiority, the exercise of its contractual rights was
in my view
a private matter. In
Logbro
Properties CC v Bedderson NO & others
2003
(2) SA 460
(SCA) Cameron JA, in explaining this court’s
decision in
Cape
Metropolitan Council v Metro Inspection Services (Western Cape) CC &
others
2001
(3) SA 1013
(SCA), said this (para 10):
‘
The
case [
Metro Inspection
Services
] is thus not
authority for the general proposition that a public authority
empowered by statute to contract may exercise its contractual
rights
without regard to public duties of fairness. On the contrary: the
case establishes the proposition that a public authority’s

invocation of the power of cancellation in a contract concluded on
equal terms with a major commercial undertaking, without any
element
of superiority or authority deriving from its public position, does
not amount to an exercise of public power.’
[64]
The
contract between SANParks and MTO fits Cameron JA’s description
of the scope of
Metro
Inspection Services
.
The approach in
Metro
Inspection Services
was
followed by this court in
Government
of the Republic of South Africa v Thabiso Chemicals (Pty) Ltd
[2008] ZASCA 112
;
2009
(1) SA 163
(SCA) where Brand JA held that, once the tender in that
case was awarded, the relationship between the parties was governed
by
the principles of contract law. The fact that the tender board
relied on authority derived from a statutory provision to cancel
the
contract did not detract from the principle. It was also held not to
matter that the grounds of cancellation were reflected
in
regulations, because the provisions of the regulations, by virtue of
incorporation by reference, operated as contractual terms
rather than
as legislative provisions (para 18).
[22]
The present case is an a fortiori one. We are not dealing with the
drastic power of cancellation. And the contractual provisions

contained in clause 10.5 have no counterpart in legislation.
[65]
It may be
that the ‘final word has yet to be spoken’ on the
interplay between contract law and administrative law and
that the
decisions of this court are not entirely harmonious.
[23]
What can, however, be deduced from this court’s decisions, as a
minimum proposition, is that the exercise of a contractual
power by
an organ of state does not constitute the exercise of a public power
(a) where the contractual power does not mirror
a statutory
power and (b) where, additionally, the contract is of the kind
explained by Cameron JA  in para 10 of
Logbro.
[66]
Of course,
cases like
Metro
Inspection Services
and
Lobgro
(pre-PAJA decisions) and
Thabiso
Chemicals
(a post-PAJA decision) were concerned with the question whether the
exercise of a contractual power involved, at the same time,
the
exercise of public power in the state actor’s relationship with
the other contracting party. It is that element of power
which called
for analysis. In the present case neither SANParks nor MTO contends
that, in their relationship inter se, there is
any element of public
power. If MTO were to regard a refusal of consent in terms of clause
10.5 as unreasonable, its remedy would
be private arbitration, not
judicial review. As between SANParks and members of the public, the
clause lacks altogether the element
of power, public or private, so
the conclusion reached in
Metro
Inspection Services
and
Thabiso
Chemicals
is
here an a fortiori one. There is no relationship of coercion as
between SANParks and the public when it comes to SANParks’

functions in terms of clause 10.5.
[67]
The only
relevant ‘power’ which SANParks had in the present case
was the contractual power contained in clause 10.5.
The only
relationship which that clause created was a contractual relationship
between SANParks and MTO. I am aware of no authority,
and none was
cited, which would entitle one to say that the clause, while a
private matter as between SANParks and MTO, is a public
matter as
between SANParks and members of the community.
[68]
In
Calibre
Clinical Consultants
[24]
this court found useful guidance in English case law on the question
whether a power or function can be described as a ‘public’

one. It is thus not inappropriate to refer to the decision of the
English Court of Appeal
in
Hampshire
County Council v
Supportways
Community
Services Ltd
[2006]
EWCA Civ 1035
(CA). The question was whether the council, in
conducting a contractual review culminating in the termination of an
outsourcing
contract, was exercising a public power amenable to
public law remedies. The court held this not to be the case. In
concurring
in Neuberger LJ’s judgement, Mummery LJ said the
following:
‘
59.  . .
. [I] agree with Neuberger LJ that this was not a public law
case. The action of the Council in conducting
the support services
review was not amenable to judicial review, because there was no
sufficient nexus between the conduct of
the  review and
the public law powers of the Council to make this a judicial review
case. The required public law element
of unlawful use of power was
missing from the support services review. The substance of the
dispute between the Council and the
Company was about the expiration
of the Agreement after the Council had conducted the support services
review under clause 11.
. . .. The source of the power of the
Council’s support services review was in the Agreement, not in
the legislation
or in the non-statutory 2003 Guidance and published
rules. The Agreement governed the review. It spelt out the agreed
consequences
of a review for the life of the Agreement . . ..
60.  . .
.[A]lthough
the
grounds for the judicial review application use public law language
. . ., this terminology does not alter the substance
of the
dispute as to whether or not the Agreement had come to an end in
accordance with its terms. That turns on the provision
of the
Agreement that the Agreement comes to an end at the expiration of 12
months from the review. Termination of the Agreement
turned on the
operation of the contract according to agreed terms, not on the
exercise of a statutory or common law public law
power of the Council
which was amenable to judicial review.’
[69]
That
approach seems to me to be equally applicable in the present case.
And the character of the power conferred by clause 10.5
could not
change with the passing of time. If it was not from the beginning a
public power, it could not become such simply because,
during and
after 2006, SANParks consulted with the public about what to do with
the land after MTO restored it to SANParks or because
a Management
Framework was issued in March 2009 or because a TMNP Management Plan
was issued in November 2015. None of these facts
could convert the
private power in clause 10.5 into a public power.
[70]
I should
add that the consultations which SANParks had with members of the
public during and after 2006 were not, on my assessment
of the facts,
concerned with the contract between SANParks and MTO but with the
public’s interest in SANParks’ management
of the land
after it was restored to SANParks in terms of the lease. By the time
consultations with the public started, the lease,
including clause
10.5, was a given. Only when the lease terminates in respect of any
compartment does SANParks acquire the public
power to manage it in
accordance with its discretion. When I say ‘in terms of the
lease’, that includes any revised
felling schedule to which
SANParks might agree in terms of clause 10.5.
[71]
While
accelerated felling might require SANParks to consult with the public
concerning consequential changes to SANParks’
post-lease
management of the land, SANParks was not obliged to consult with the
public about how it exercised and performed its
contractual rights
and obligations. The question of reasonableness, in the context of
clause 10.5, is a contractual standard in
a bilateral commercial
contract. The time-limits which clause 10.5 imposes, and the fact
that disputes as to reasonableness are
to be determined by private
arbitration, are quite inconsistent to my mind with the
characterisation of clause 10.5 as a source
of public power.
[72]
The court a
quo said (para 68) that the language of reasonableness in clause 10.5
is the language ‘customarily employed when
applying the test
for the legality of administrative action’. I respectfully
disagree. The meaning of unreasonableness in
clause 10.5 – a
standard to be assessed in the first instance by the contracting
parties and, in case of dispute, by a private
arbitrator – has
nothing to do with public law. It is a matter of interpreting and
applying the contract between the two
parties.
[73]
Commercial
leases often contain terms that the tenant may only do certain things
with the consent of the landlord and that the landlord’s

consent may not be unreasonably withheld. English, South African and
other Commonwealth courts follow a broadly similar approach
to such
clauses. Stated as general propositions, the landlord may not refuse
consent ‘on grounds which have nothing whatever
to do with the
relationship of landlord and tenant in regard to the subject matter
of the lease’ and that ‘a landlord's
interests,
collateral to the purposes of the lease, are . . . ineligible for
consideration’
[25]
[74]
The cases
cited in footnote 25 indicate that, in determining whether the
landlord’s consent has been unreasonably withheld,
one has
regard to the intention of the parties when they contracted and the
matters they would have had in contemplation at that
time. Thus in
Dominion
Stores
[26]
the court said that the withholding of consent would not be valid if
it was for the purpose ‘of securing a new advantage
to the
landlord uncontemplated by the terms of the lease’. And in
Houlder
Brothers
[27]
Pollack MR said that the covenant could not be so interpreted as to
entitle the landlord to rely on a reason ‘which is independent

of the relation between the lessor and lessee’ and based ‘on
grounds which are entirely personal to the lessor, and
wholly
extraneous to the lessee’ (853-854).
[75]
This, in my
view, would be the approach in a contractual dispute between SANParks
and MTO regarding a refusal of consent in terms
of clause 10.5. That
would be the approach an arbitrator would have to follow if the
parties could not settle their differences.
In the present case, it
is argued that SANParks should have consulted with members of the
public because, if the lease came to
an end sooner, SANParks’
post-termination management of the land might yield less satisfactory
shady recreational areas than
would otherwise have been the case.
That would be a consideration personal to SANParks in respect of its
post-termination use of
the land. I say ‘personal’ as
denoting a consideration extraneous to MTO and to the lease between
the parties. Formulated
in the language of
Chirwa
,
the contractual power conferred on SANParks by clause 10.5 was not a
‘power’ which SANParks was required, or entitled,
to
exercise ‘in the public interest’, save in the limited
sense that it is in the public interest that organs of state
should
act in accordance with contracts properly concluded.
[76]
The lease
discloses a concern that the plantations should be felled by not
later than the agreed dates. This is what clause 10.1
proclaims.
Annexure K specifies the ‘last date’ for the felling of
each compartment, not the ‘earliest date’.
There is
nothing to suggest it was ever in the contemplation of the
contracting parties that MTO could be compelled to work at
a slower
and potentially uncommercial pace so that the recreational interests
of members of the public could be accommodated. Consultation
with
members of the public regarding SANParks’ management of the
land after the termination of the lease (ie incremental
termination
as cleared compartments are restored to SANParks) only began several
years after the conclusion of the lease. If there
were sound
commercial reasons for MTO to accelerate the felling programme, there
could be little if any justifiable contractual
reason for SANParks to
withhold its consent. To withhold consent on the types of grounds
which Parkscape wishes to promote would
be to withhold consent so
that SANParks, and through it members of the public, could secure an
advantage uncontemplated by the
terms of the lease.
[77]
The
question whether the public impact of a decision is relevant in
determining whether the decision involves the exercise of public

power is unclear (cf Hoexter op cit 214-216). In
Calibre
Clinical Consultants
[28]
this court in para 27 quoted, with apparent approval, from an English
judgment to the effect that a ‘public law decision’
means
more than that the decision is of great concern or interest to the
public or even that it may have consequences for them:
‘To
attract the court’s supervisory jurisdiction there must be not
merely a public but potentially a governmental interest
in the
decision-making power in question. . ..’
[29]
[78]
Clause 10.5
is not a governmental power masquerading as a contractual power. It
is a narrow contractual provision applicable to
this particular
commercial lease. Assuming, however, that public impact is a relevant
consideration, this factor might serve to
distinguish this case from
employment cases where only the aggrieved employee is affected.
However one would still need to decide
what weight this consideration
should carry. And in answering that question, the
Plascon-Evans
rule would apply, since public impact here is relevant to the
jurisdictional question as to whether one is dealing with
‘administrative
action’, and not with the rights and
wrongs of the decision if it should transpire that members of the
public are entitled
to be heard before it is taken. SANParks’
evidence, which cannot be dismissed out of hand, is that the
accelerated felling
schedule will have no or minimal impact on its
plans for shady recreational areas in the affected areas. And of
course it is undisputed
that elsewhere, within easy reach of Tokai
residents, are other greenbelts and shady recreational areas. I thus
do not think that
such public impact as SANParks’ decision
under clause 10.5 may have is sufficient to impart to it the
character of a public
power or public function.
[79]
The
majority considers that SANParks’ ‘public law
responsibilities and public undertakings to consult’ are
reflected
in the lease itself. Dambuza JA quotes clause 40 in that
regard. That clause was not the subject of any attention in the
papers.
The entire lease was (unnecessarily) annexed by MTO’s
deponent in his supplementary answering affidavit for the sole
purpose
of referring to annexure K and the provision made in the
lease for variations to the felling schedule. That is the only aspect
of the lease which Parkscape’s deponent dealt with in her
supplementary replying affidavit. Since the parties, in preparing
the
appeal record, agreed to omit large parts of the lease, we only have
extracts. For the reasons stated by Cloete JA in
Minister
of Land Affairs and Agriculture v D & F Wevell Trust
2008
(2) SA 184
(SCA) para 43, it is not permissible in my view to draw
conclusions from annexures which were not ventilated in the
affidavits.
One does not know what MTO and SANParks would have said
if Parkscape had relied on clause 40.
[80]
In
Chirwa
the
majority held that the dismissal, although the exercise of public
power, did not constitute administrative action. Ngcobo J’s

starting point was that whether particular conduct is administrative
action needs to be determined by reference to s 33 of
the
Constitution (para 139):
‘
Section
33 of the Constitution confines its operation to “administrative
action”, as does PAJA. Therefore to determine
whether conduct
is subject to review under s 33 and thus under PAJA, the
threshold question is whether the conduct under consideration

constitutes administrative action. PAJA only comes into the picture
once it is determined that the conduct in question constitutes

administrative action under s 33.’
[81]
Ngcobo J
went on to make the point that not all conduct by state functionaries
entrusted with public authority is administrative
action. What
matters is not the identity of the person exercising it but the
nature of the function (para 140; and see also
Association
of Regional Magistrates of Southern Africa v President of the
Republic of South Africa & others
[2013] ZACC 13
;
2013 (7) BCLR 762
(CC) para 41). He then quoted para
143 of the Constitutional Court’s judgment in
President
of the Republic of South Africa & others v South African Rugby
Football Union & others
2000
(1) SA 1
(CC) (
SARFU
)
in which the court set out a series of considerations relevant to
deciding on which side of the line particular action falls.
The
source of the power, though not necessarily decisive, is a relevant
factor. Also relevant is the nature of the power, its subject-matter,

whether it involves the exercise of a public duty and how closely it
is related on the one hand to policy matters, which are not

administrative, and on the other to the implementation of
legislation, which is. Difficult boundaries may need to be drawn, in

which regard the court in
SARFU
said this:
‘
These
will need to be drawn carefully in the light of the provisions of the
Constitution and the overall constitutional purpose
of an efficient,
equitable and ethical public administration. This can best be done on
a case-by-case basis.’
[82]
Applying
this general approach to the problem in
Chirwa
,
Ngcobo J said the following (para 142):
‘
The
subject-matter of the power involved here is the termination of a
contract of employment for poor work performance. The source
of the
power is the employment contract between the applicant and Transnet.
The nature of the power involved here is therefore
contractual. The
fact that Transnet is a creature of statute does not detract from the
fact that in terminating the applicant’s
contract of
employment, it was exercising its contractual power. It does not
involve the implementation of legislation which constitutes

administrative action. The conduct of Transnet in terminating the
employment contract does not in my view constitute administration.
It
is more concerned with labour and employment relations. The mere fact
that Transnet is an organ of State which exercises public
power does
not transform its conduct in terminating the applicant’s
employment into administrative action. Section 33 is
not concerned
with every act of administration performed by an organ of State. It
follows therefore that the conduct of Transnet
did not constitute
administrative action under s 33.’
[83]
Although
Ngcobo J went on to find support for this conclusion in the
distinction drawn in the Constitution between administrative
action
on the one hand and employment and labour relations on the other
(paras 143-149), this fortification does not deprive the
passage I
have quoted, advanced by Ngcobo J as a self-sufficient conclusion, of
its significance. If the exercise of the contractual
power in
Chirwa
did not
constitute administrative action, this is a fortiori so in the
present case. SANParks’ power, if ‘power’
is even
the right word, is not the drastic power of termination. It is a
power of a limited kind – the power to withhold
consent to a
deviation from the felling schedule, provided there are reasonable
grounds for withholding consent. One could as easily
frame the
‘power’ as an obligation, ie an obligation to furnish
consent unless there are reasonable grounds to withhold
it. And if
the consent is withheld, the ultimate ‘power’ resides
with the arbitrator, not SANParks.
[84]
Ngcobo J’s
starting-point – the concept of ‘administrative action’
in s 33 of the Constitution –
might be thought to
undermine the principle of subsidiarity, which would have required
the employee to locate her claim in PAJA,
not s 33. I do not
think Ngcobo J intended to depart from this principle. He regarded
his conclusion, that the dismissal was
not administrative action for
purposes of s 33 of the Constitution, as ipso facto showing that
it was not reviewable in terms
of PAJA. The unstated reason for his
assumption must have been that, in order to qualify as a ‘decision’
reviewable
under PAJA, the decision has to be ‘of an
administrative nature’. Ngcobo J’s conclusion that the
dismissal did
not constitute administrative action as contemplated in
s 33 of the Constitution was evidently regarded by him as
simultaneously
establishing that the dismissal was not a decision ‘of
an administrative nature’ for purposes of PAJA’s
definition
of ‘decision’.
[85]
I thus
conclude that SANParks’ decision in terms of clause 10.5 lacked
one or both of the requirements in PAJA that the decision
should be
the exercise or performance of a public power or function and that it
should be of an administrative nature.
[86]
If
SANParks’ decision in terms of clause 10.5 involved the
exercise of a public power but failed the other two requirements
I
have canvassed for ‘administrative action’, legality
review would remain available to constrain the illegal exercise
of
the power. However, Parkscape brought its review in terms of PAJA and
did not rely on the principle of legality, perhaps appreciating
that
a complaint based on procedural unfairness, and in particular a case
based on legitimate expectation, would be difficult to
bring home
under the principle of legality. Since the point was not raised or
argued, I need say nothing more about it.
Conclusion
[87]
I would
uphold the appeal and replace the court a quo’s order with one
dismissing the application. In accordance with
Biowatch
I would
make no order as to costs in this court or the court below.
______________________
O L Rogers
Acting Judge of Appeal
APPEARANCES
For
the Appellant:

J J Gauntlett SC (with him H J De Waal)
Instructed
by:

Webber Wentzel, Cape Town
Symington
& De Kok, Bloemfontein
For
the Respondents:

J A Newdigate SC (with him D W Baguley)
Instructed
by:

Werksmans, Cape Town
Lovius
Block, Bloemfontein
[1]
The
lease agreement related to the Tokai and Cecilia Plantations. The
latter is located in Constantia, Cape Town. However these

proceedings only pertain to the Tokai Forest.
[2]
Section 39 of
NEMPAA provides:
‘
Preparation
of management plan
(1)
The Minister or the MEC may make an assignment in terms of section
38(1) or (2)
only with the concurrence of the prospective management
authority.
(2)
The management authority assigned in terms of section 38(1) or (2)
must, within
12 months of the assignment, submit a management plan
for the protected area to the Minister or the MEC for approval.
(3)
When preparing a management plan for a protected area, the
management authority
concerned must consult municipalities, other
organs of state, local communities and other affected parties which
have an interest
in the area.
(4)
A management plan must take into account any applicable aspects of
the integrated
development plan of the municipality in which the
protected area is situated.’
[3]
In terms of s 41
of NEMPAA the role and ambit of a management plan is described as
follows:
‘
(1)
The object of a management plan is to ensure the protection,
conservation and management
of the protected area concerned in a
manner which is consistent with the objectives of this Act and for
the purpose it was declared.
(2)
A management plan must consist at least –
(a)
the terms and conditions
of any applicable biodiversity management plan;
(b)
a co-ordinated policy
framework;
(c)
such planning measures,
controls and performance criteria as may be prescribed;
(d)
a programme for the
implementation of the plan and its costing;
(e)
procedures for public
participation, including participation by the owner (if applicable),
any local community or other interested
party;
(f)
where appropriate, the
implementation of community-based natural resource management; and
(g)
a zoning of the area
indicating what activities must take place in the different sections
of the area, and the conservation objectives
of those sections
.
(3)
A management plan may contain –
(a)
development
of economic opportunities within and adjacent to the protected area
in terms of the integrated development plan framework;
(b)
development of local
management capacity and knowledge exchange;
(c)
financial and other
support to ensure effective administration and implementation of the
co-management agreement; and
(d)
any other relevant matter.
(4)
Management plans may include subsidiary plans, and the Minister or
MEC may approve
the management plan or any subsidiary plan in whole
or in part’.
[4]
The latter was
concluded in 2015 and states in terms that it serves to fulfil the
requirements of ss 39 and 41 of NEMPAA.
[5]
Clause
10 provides that:
‘
10.1
The tenant shall clear-fell and release the compartments in
accordance with this clause 10, by no
later than 20 (twenty) years
after the commencement date (unless the lessor agrees in writing to
a longer period in respect of
any particular area of the leased
land, in its sole discretion).
10.2
The tenant shall clear-fell the compartments in accordance with the
clear-felling schedule
relating to the leased land annexed as
Annexure K,
to at least the standards set out in Annexure L,
in addition:-
.
. . .
10.4
The tenant shall on or before 28 February of each year in accordance
with the provisions of
clause 16, while any compartment has not been
released from this lease, notify the lessor of the clear-felling
programme which
it intends to implement over the next 6 (six) years
of the lease or such lesser period as may be applicable to complete
the clear-felling
and release of the compartment as an integral part
of the reporting referred to in clause 16. Such annual reports
shall:-
10.4.1
highlight any variations from the previous year’s submission
regarding the tenant’s clear-felling
programme;
.
. . .
10.4.3
Indicate any variations from Annexure K and the reasons therefore,
which amendments shall be subject to the
lessor’s approval in
terms of clause 10.5.
10.5
The lessor shall notify the tenant within 90 (ninety) days of
receipt of the schedule of information
referred to in clause 10.4
whether or not it accepts any changes to the clear-felling programme
set out in
Annexure K
(as amended from time to time in terms
hereof). The lessor may however, notify the tenant, in writing, that
it requires an extension
of a further 60 (sixty) days within such
period within which to obtain the input from SANParks in the event
that SANParks has
not yet been assigned the responsibilities as
lessor in terms of this lease . . . If the tenant is of the view
that the lessor
is being unreasonable in refusing its consent, it
shall advise the lessor accordingly, giving reasons for its views.
If the parties
are unable to resolve such dispute within 90 (ninety)
days of the tenant giving notice to the lessor that it believes that
the
lessor is acting unreasonably in refusing its approval to any of
the proposed changes, the tenant may refer the dispute to
arbitration
in terms of clause 49.
10.6
Subject to clause 10.7, in the event that any compartment (or a
substantial part thereof) is
destroyed or partially destroyed by
fire, wind, hail, flood, insect infestation or disease, and the
tenant wishes to clear-fell
such area earlier than it is programmed
for cutting pursuant to the provisions of this lease, and in
particular clause 10.4,
it shall notify the lessor in writing, that
it wishes to clear-fell such compartment earlier than programmed, in
which event,
the following shall apply:-
10.6.1
the lessor shall assume responsibility for such compartment on its
release in terms of this clause prior to
the programmed date in
terms of
Annexure K
as amended in terms of clause 10.2 within
60 (sixty) days of receipt of written notice from the tenant that
the clear-felling
of the compartment is complete, subject to the
tenants obligation to clear-fell the compartment to the standards
set out in
Annexure L
and the provisions of clause 10.11; and
10.6.2
the tenant shall continue with its clear-felling programme in
respect of other compartments unless the magnitude
of the
destruction of timber in respect of the compartments destroyed by
fire or wind, as the case may be, is such that it requires
to
reallocate resources to such areas and is not reasonably able to
continue with its clear-felling programme in respect of such
other
compartments.’
[6]
Logbro
Properties CC v Bedderson NO and others
[2003] 1 All SA 424 (SCA).
[7]
Cape Metro
Council v Metro Inspection Services (Western Cape) CC and Others
2001 (3) SA 1013 (SCA).
[8]
Logbro
para
5.
[9]
For
example
Umfolozi
Transport (Edms) Bpk v Minister van Vervoer en andere
[1997]
2 All SA 548 (SCA).
[10]
See
Administrator,
Transvaal, & others v Zenzile & others
1991 (1) SA 21
(SCA) where a contract of employment was summarily
terminated as a result of the employees having engaged in work
stoppage. The
contractor in
Cape
Metro
had
relied on
Zenzile
in
asserting a right to procedural fairness prior to cancellation of
its contract to collect outstanding levies on behalf of the

municipality. See also
Administrator
Natal, & another v Sibiya & another
[1992] ZASCA 115
;
1992 (4) SA 532
(SCA).
[11]
Government of
the Republic of South Africa v Thabiso Chemicals
2009
(1) SA 163 (SCA).
[12]
Lunt v
University of Cape Town & another
1989 (2) SA 438 (CPD).
[13]
C Hoexter
Administrative
Law in South Africa
2 ed (2012) at 446.
[14]
Administrator
of Transvaal & others v Traub & others
1989 (4) SA 731 (AD).
[15]
Mustapha and
another v Receiver of Revenue, Lichtenburg & others
1958
(3) SA 343 (A).
[16]
South
African Veterinary Council & another v Szymanski
2003
(4) SA 42
(SCA) para 19 quoting
National
Director of Public Prosecutions v Phillips & others
2002 (4) SA 60
(W) para 28.
[17]
See Cora Hoexter
‘Contracts and Administrative Law: Life after formalism’
2004 (121)
SALJ
545
; Geo Quinot State Commercial Activity: A legal framework (1989).
[18]
Logbro
at
paras 7 and 10.
[19]
Para 14.
[20]
Investigating
Directorate: Serious Economic Offences & others v Hyundai Motor
Distributors (Pty) Ltd & others; In re:
Hyundai Motor
Distributors (Pty) Ltd & others v Smit NO & others
[2000] ZACC 12
;
2001 (1) SA 545
(CC) paras 23-24;
Democratic
Alliance v Speaker of the National Assembly & others
[2016]
ZACC 8
;
2016 (3) SA 487
(CC) para 33.
[21]
See the full
court decision in
National
Horse Racing Authority of Southern Africa v Naidoo & another
2010
(3) SA 182
(N) paras 20-28;
Yvonne
Burns
Administrative
Law
4
ed at 209 ff. For the significance of the governmental nature
of a function, see
Calibre
Clinical Consultants (Pty) Ltd & another v National Bargaining
Council for the Road Freight Industry & another
[2010]
ZASCA 94; 2010 (5) SA 457 (SCA).
[22]
See also the full
court judgment in
Hibiscus
Coast Municipality v Margate Amusement Park (Pty) Ltd & another
[2016]
ZAKZPHC 24 paras 19-20.
[23]
KwaZulu-Natal
Joint Liaison Committee v MEC Department of Education, Kwazulu-Natal
& others
[2013]
ZACC 10
;
2013 (4) SA 262
(CC) para 101 per Froneman J in his
minority judgment;
Staffmed
CC v MEC for
Health (Western Cape) & another
(6352/14)
[2014]
ZAWCHC 94
(23 June 2014) paras 6-10.
[24]
Footnote 21
above.
[25]
International
Drilling Fluids Ltd v Louiseville Investment (Uxbridge) Ltd
[1986]
Ch 513
at 519-521 and authorities there cited. See also, in England,
Houlder
Brothers & Co Ltd v Gibbs
[1925]
1 Ch 575
(CA);
Bromley
Park Garden Estates v Moss
[1982]
1 WLR 1019
(CA);
Shah
& others v Colvia Management Company Ltd
[2008]
EWCA Civ 195
para 22. The leading South African cases are
FW
Knowles (Pty) Ltd v Cash-In (Pty) Ltd
1986
(4) SA 641
(C) at 649I-650G per Van den Heever J, Fagan J
concurring;
Bryer
&
others
NNO v Teabosa CC t/a Simon Chuter Properties & another
1993
(1) SA 128
(C
)
at 137E-I). In Australia, see
Secured
Income Real Estate (Australia) Ltd v St Martins Investments Pty Ltd
[1979] HCA 51
;
(1979) 144 CLR 596
paras 34-35;
Cathedral
Place Pty Ltd & Anor v Hyatt of Australia Ltd & Ors
[2003] VSC 385
para 26. In Canada see
Dominion
Stores Ltd v Bramalea Ltd
[1985]
OJ No 1874 para 34;
1455202
Ontario Inc v
Welbow
Holdings Ltd
2003
CanLII 10572 (ON SC)
para
9.
[26]
Footnote 25
above.
[27]
Footnote 25
above.
[28]
Footnote 21
above.
[29]
R
v Chief Rabbi Of the United Congregations of Great Britain and the
Commonwealth, Ex Parte Wachmann
[1992]
1 WLR 1036
(QB) at 1041C-E.