Guiding policy principles: Application in general

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[15] I turn to the interpretation of s 3(3)(a), read together with s 7(1)(a), to determine the meaning of this 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.

15.1 The starting point must be a consideration of s 3(3)(a) in the context of the other relevant provisions in the Act. What is immediately apparent is that the provisions of this section are not peremptory, but directory.

The heading to s 3 ‘Principles to guide decisions affecting forests’ as well as the introductory clause, namely ‘The principles set out in s (3) must be considered and applied in a balanced way –’ clearly indicates that the principles are simply intended to serve as a guide to the decision-maker.

15.2 The correct approach in interpreting s 3(3)(a), is as follows:

‘. . . [T]he apparent purpose of the provision and the context in which it occurs will be important guides to the correct interpretation. An interpretation will not be given that leads to impractical, unbusinesslike or oppressive consequences or that will stultify the broader operation of the legislation . . . .’[1]

The purpose of the section is to give guidance to a decision-maker when exercising powers in terms of s 7 of chapter 3 of the Act and lays down the guiding principle that natural forests must not be destroyed save in exceptional circumstances.

These exceptional circumstances are described as

‘. . . where, in the opinion of the Minister, a proposed new land use is preferable in terms of its economic, social or environmental benefits’.

In other words, the guiding principle envisages the destruction of a natural forest and not individual indigenous trees making up a natural forest. This is because the ‘exceptional circumstances’ which may permit such destruction is a ‘proposed new land use’ which is ‘preferable’ to the existing use of the land as a forest because ‘of its economic, social or environmental benefits’.

Self-evidently, land will only become available for a new use if the natural forest, or at the very least a portion of it, is destroyed.

15.3 The provisions of s 7(1)(a) of the Act must be interpreted in this context. The prohibited activities are described as ‘cut, disturb, damage or destroy any indigenous tree in a natural forest’. It is quite clear that to cut, disturb or damage an indigenous tree, does not qualify as destruction of the tree in terms of this section. This is because the prohibition that no person may ‘destroy’ an indigenous tree is included as a separate and distinct activity, in addition to the prohibition on cutting, disturbing or damaging an indigenous tree.

This interpretation accords with the dictionary meaning of the word ‘destroy’, which the Concise Oxford English Dictionary (12th ed) defines as, ‘put an end to the existence of (something) by damaging or attacking it’.

15.4 Although a ‘natural forest’ is defined as ‘a group of indigenous trees whose crowns are largely contiguous’, it is quite clear from the definitions of a ‘forest’, ‘tree’ and an ‘ecosystem’ that it is not only comprised of indigenous trees, but includes tree seedlings, saplings, transplanted or coppice shoots of any age, and any root, branch or other part of a tree, as well as the ecosystem which makes up a forest. This however does not mean that the destruction of ‘any part of a forest however small, and not a forest in its entirety’ results in the destruction of natural forest for the purposes of s 3(3)(a), as interpreted by the first respondent.

It would be absurd if a licence to destroy a single seedling or sapling, or root, branch or other part of an indigenous tree in a natural forest, could only be granted if the land thereby made available as a result of its destruction, could be put to a proposed new use which is preferable ‘in terms of its economic, social or environmental benefits’, in order to establish the presence of exceptional circumstances. Such an interpretation would lead to ‘impractical’ or ‘oppressive’ consequences and ‘stultify the broader operation’ of the Act, as is clearly illustrated by the facts of this case.

15.5 The criterion is one of degree, to be determined on the individual facts of each case. If the evidence reveals that indigenous trees located in a natural forest will be destroyed, and not simply cut, disturbed or damaged, the number, nature, location, extent and distribution of the indigenous trees that will be destroyed, will have to be determined. Regard being had to the nature and extent of the natural forest in question, the first and second respondents will have to determine whether the prohibited activities for which a licence is sought, constitute the destruction of natural forest.

15.6 The guiding principle, which has to be considered and applied in a balanced way by the first and second respondents, is whether the nature and extent of the destruction will result in new land becoming available, with the potential of being put to a new use.

If for example one indigenous tree in a natural forest of ten acres will be destroyed, to create new land for the erection of a beacon, this will obviously not constitute the destruction of natural forest, for the purposes of s 3(3)(a).

In such a case, it will not be necessary for the first and second respondents to be satisfied, that the proposed new land-use is ‘preferable in terms of its economic, social or environmental benefits’. On the other hand, if one acre of indigenous trees in the same natural forest will be destroyed to create new land for the construction of a road, this will self-evidently constitute the destruction of natural forest for the purposes of the section. In the latter event, the guiding principle that natural forests must not be destroyed, save in exceptional circumstances, will have to be observed. Consequently, a licence for the prohibited activity may only be granted by the first and second respondents if satisfied that the proposed new use for the land is ‘preferable in terms of its economic, social or environmental benefits’.

15.7 Obviously, where the prohibited activity does not involve the destruction of a natural forest in terms of s 3(3)(a), the first and second respondents will nevertheless have to consider and apply in a balanced way, the remaining guiding principles set out in ss 3(3)(b) and (c) of the Act.

[16] It is therefore 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. In the result, the decision falls to be reviewed and set aside in terms of s 6(2)(d) of the PAJA.

[17] Although not strictly necessary for the determination of this appeal, I should say something concerning the Policy, referred to above, which has been adopted by the first and second respondents. As stated in Computer Investors Group Inc & another v Minister of Finance 1979 (1) SA 879 (T) at 898C-E: (affirmed in MEC for Agriculture, Conservation, Environment and Land Affairs v Sasol Oil (Pty) Ltd and Another 2006 (5) SA 483 (SCA)):

‘Where a discretion has been conferred upon a public body by a statutory provision, such a body may lay down a general principle for its general guidance, but it may not treat this principle as a hard and fast rule to be applied invariably in every case. At most it can be only a guiding principle, in no way decisive. Every case that is presented to the public body for its decision must be considered on its merits. In considering the matter the public body may have regard to a general principle, but only as a guide, not as a decisive factor. If the principle is regarded as a decisive factor, then the public body will not have considered the matter, but will have prejudged the case, without having regard to its merits. The public body will not have applied the provisions of the statutory enactment.’

[18] The Policy provides as follows:

‘Land uses which transform natural habitat and which are not of national or provincial strategic importance (including residential development and agriculture), do not constitute exceptional circumstances.’

In the answering affidavit of the first and second respondents this policy is dealt with as follows:

‘Residential development is not considered to be exceptional circumstances.’

Later, the following is added:

‘The term “exceptional circumstances” indicates situations that are unusual or rare. These exceptional circumstances are confined to strategic public projects such as national roads, dams and bulk service infrastructure, but exclude ordinary urban or residential development.’ (Emphasis added.)

[19] That the first respondent applies this Policy rigorously, is clear from the following passage in the affidavit:

‘. . . the principle is very clear and unambiguous, and that DAFF [first respondent] policy determines that only the development of strategic significance such as dams and power lines, qualify as exceptional circumstances and that a high income residential development, as proposed at Long Beach, cannot be construed to constitute exceptional circumstances.’ (Emphasis added.)

[20] In this regard, the court a quo however stated that:

‘. . . for the reasons already given, I am not satisfied that it could be said that sixth and seventh respondents erred in relying exclusively on the policy position that a residential development could never constitute exceptional circumstances. The engagement between the parties and the dispute that developed around the scope and nature of the impact of the development suggests compellingly that regard was indeed given to the merits of the application.’

I disagree with this conclusion. It is clear from the passages in the answering affidavit of the first and second respondents, that they do not regard the Policy simply as a guide, but as a decisive factor in deciding an application where the proposed new land use is residential development.

The result is that in slavishly following this Policy the first and second respondents did not properly consider the merits of the appellant’s application.

In doing so, the first respondent failed to properly apply the provisions of s 7(4), read with s 7(1)(a) and s 3(3)(a) of the Act.

[21] In the result, the appellant’s application for a licence under s 7(4) of the Act must be referred back to the first respondent for reconsideration, in the light of the principles laid down in this judgment. It is unnecessary to comment on the correctness of the conclusion reached by the court a quo, that the number of trees that will be affected by the development in its entirety and not simply those trees that will be affected by the development on Erf 1126, will have to be ascertained before a decision can be made as to whether the natural forest will be ‘destroyed’ for the purposes of the Act. In my view, this issue must be determined by the application of environmental considerations, when the s 7(4) application of the applicant is reconsidered.

[22] The court a quo in refusing the application made no adverse costs order against the appellant, on the basis that ‘the applicant was ultimately seeking to protect a right enshrined in the Constitution and that its stance in advancing the application was well-intentioned’. However, when regard is had to the unreasonably narrow meaning that the first and second respondents placed upon their discretion they possessed in terms of the Act, as well as their slavish adherence to a rigid policy when considering the appellant’s application, there can be no reason why they should not be ordered to pay the appellant’s costs incurred before the court a quo, as well as those incurred in this appeal.

[23] In the result the following order is granted:

1 The appeal is upheld.

2 The first and second respondents are ordered to pay the appellant’s costs.

3 The order of the court a quo dismissing the appellant’s application, with no order as to costs, is set aside and replaced with the following order:

‘(a) The decision taken by the sixth respondent, the Department of Agriculture, Forestry and Fisheries (South Africa) on 17 March 2014, to refuse the application by the applicant in terms of s 7(4) of the National Forests Act 84 of 1998 (the Act), for a licence to carry out one or more of the activities specified in s 7(1)(a) of the Act, is reviewed and set aside.

(b) The application is referred back to the sixth respondent for reconsideration and decision.

(c) The sixth and seventh respondents are ordered to pay the applicant’s costs.’