Tokai's surviving pines can stay‚ appeal court rules

The remaining pine trees in the Cape Town suburb of Tokai have won a stay of execution in the Supreme Court of Appeal.

The Bloemfontein court has dismissed South African National Parks’ appeal against a high court judgment which said felling of the pines in the 25.5ha Dennedal compartment of the Tokai plantation could not be accelerated without a public participation process.

SANParks and its commercial partner‚ MTO Forestry‚ began felling the pines in August 2016‚ saying a devastating wildfire 17 months earlier which damaged most other compartments in the 600ha plantation meant retaining them was not economically viable.

Felling stopped when Parkscape‚ a new organisation campaigning for shaded urban parks on the fringes of Table Mountain National Park‚ obtained an urgent interdict.

In March 2017‚ the High Court in Cape Town said the planned harvesting of the Dennedal pines could not be accelerated without the public being consulted.

The appeal court’s ruling on Thursday confirms that decision. But the pines are doomed anyway‚ because they are due to be felled between 2021 and by 2025 in terms of MTO Forestry’s lease agreement with SANParks.

In a majority judgment written by Judge Nambitha Dambuza‚ the appeal court said in putting together its management plan for the Tokai plantation‚ SANParks committed itself 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‚” said the judgment.

“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.”

The court awarded costs against SANParks‚ whose legal team was headed by advocate Jeremy Gauntlett.

In a dissenting minority judgment‚ acting appeal judge Owen Rogers said in his view the decision to accelerate the pine-felling programme did not constitute an “administrative action” that required public participation.

Under the management framework for the pine plantations in Tokai and Cecilia (Constantia)‚ implemented in 2009‚ fynbos will be permanently re-established in both areas within 38 years of the final pines being harvested.

The plan says that after felling and burning‚ fynbos will be allowed to regenerate for eight years‚ allowing seeds to be dispersed in the soil. Then shady non-invasive trees will be planted. These will be harvested after 30 years‚ allowing a permanent return of fynbos.