THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Reportable
Case No: 865/2016

In the matter between:

LONG BEACH HOME OWNERS ASSOCIATION
APPELLANT

and

DEPARTMENT OF AGRICULTURE,
FIRST RESPONDENT
FORESTRY AND FISHERIES

(SOUTH AFRICA)

MINISTER OF AGRICULTURE, FORESTRY                     SECOND RESPONDENT
AND FISHERIES (SOUTH AFRICA)

Neutral citation:
Long Beach Home Owners Association v Department of
Agriculture, Forestry and Fisheries (South Africa) & another
(865/2016) [2017] ZASCA 122 (22 September 2017)

Coram:
Shongwe AP, Saldulker, Swain and Mathopo JJA and
Schippers AJA

Heard:
25 August 2017

Delivered:
22 September 2017

Summary: National Forests Act 84 of 1998 – ss 3(3)(a), 7(1)(a) and 7(4) – licence to
carry out prohibited activities in a natural forest – meaning of ‘natural forests must
not be destroyed save in exceptional circumstances’ – nature of discretion – rigid
adherence to policy – improper exercise of discretion – refusal of licence – review of
decision.

ORDER

On appeal from: Gauteng Division of the High Court, Pretoria (Kollapen J sitting as
court of first instance):

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.’

JUDGMENT

Swain JA (Shongwe AP, Saldulker and Mathopo JJA and Schippers AJA
concurring):
[1] The subject matter of the dispute between the parties to this appeal is a
natural forest, which was declared as such in terms of ss 7(2) and (3) of the National
Forests Act 84 of 1998 (the Act) and is described as Eastern Cape Dune Forest. The
forest comprises a sensitive dune forest ecosystem and is a critical biodiversity area.

[2] The source of the dispute is that the owners of seven properties located
within the forest, represented by the appellant, the Long Beach Home Owners
Association, wish to construct homes on their properties. Before doing so, a licence
has to be obtained in terms of s 7(4) of the Act from the first respondent, the
Department of Agriculture, Forestry and Fisheries, the executive head of which is the
second respondent, the Minister of Agriculture, Forestry and Fisheries. The
application by the appellant for the requisite licence was, however, refused by the
first respondent, by way of a letter dated 17 March 2014.
[3] The reasons furnished by the first respondent for the refusal of the licence
were as follows:
‘1 . . . Section 3(3)(a) of the National Forests Act of 1998 (Act 84 of 1998) determines that:
"natural forests must not be destroyed save in exceptional circumstances where, in the
opinion of the Minister, a proposed new land use is preferable in terms of its economic,
social and environmental benefits”. This principle not only applies to trees, but to the natural
forest ecosystem as a whole, including undergrowth and wildlife, and even to disturbed
forest ecosystems, as determined by legal precedent.
2. Residential development in natural forests is not considered an exceptional circumstance.
This confirms the Departmental position on the licence application originally stated in a letter
to you, dated 10 October 2012, upon which an extensive investigation was done of all
relevant issues raised, and also involving communication with affected parties or their
representatives.’
[4] Aggrieved by the decision of the first respondent, the appellant launched an
application before the Gauteng Division of the High Court, Pretoria (Kollapen J). An
order was sought reviewing and setting aside the first respondent's decision and
substituting for that decision the grant of the requisite licence to the appellant. In the
alternative, an order was sought referring the matter back to the first respondent for
reconsideration. The court a quo, however, dismissed the application, made no order
as to costs and then granted leave to appeal to this court.
[5] Central to a resolution of the appeal is the interpretation of the provisions of
s 3(3)(a), read together with s 7(1)(a) of the Act:
The heading to s 3 reads as follows:

‘Principles to guide decisions affecting forests’
Section 3(1)(a) provides that:
‘(1) The principles set out in subsection (3) must be considered and applied in a balanced
way –
(a) in the exercise of any power or the performance of any duty in terms of this Act.’
Section 3(3)(a) provides that:
‘(3) The principles are that –
(a) natural forests must not be destroyed save in exceptional circumstances where, in the
opinion of the Minister, a proposed new land use is preferable in terms of its economic,
social or environmental benefits.’
Section 7 provides that:
‘7 Prohibition on destruction of trees in natural forests
(1) No person may –
(a) cut, disturb, damage or destroy any indigenous tree in a natural forest; . . .
except in terms of –
(i) a licence issued under subsection (4) . . .
(4) The Minister may licence one or more of the activities referred to in paragraph (a) or (b)
of subsection (1).’
[6] The following definitions contained in s 2 of the Act are relevant in
interpreting these sections:
‘“ecosystem” means a system made up of a group of living organisms, the relationship
between them and their physical environment;
“forest” includes –
(a) a natural forest, a woodland and a plantation;
(b) the forest produce in it; and
(c) the ecosystems which it makes up;
“natural forest” means a group of indigenous trees –
(a) whose crowns are largely contiguous; or
(b) which have been declared by the Minister to be a natural forest under section 7(2);

“tree” includes any tree seedling, sapling, transplant or coppice shoot of any age and any
root, branch or other part of it.’
[7] The grounds advanced by the appellant before the court a quo for the review
of the decision of the first respondent, were as follows:
7.1
Section 3(3)(a) of the Act was not applicable to the appellant's application for
a licence, as this only applied where the applicant for a licence seeks to ‘destroy’ the
natural forest. The appellant averred that it did not intend ‘destroying’ the natural
forest. At the worst it may have to ‘disturb’ some indigenous trees.
7.2
As a result, the first respondent did not have to consider the issue of
‘exceptional circumstances’, in terms of s 3(3)(a) of the Act, which only applied
where the applicant for a licence intended to destroy a natural forest. The first
respondent in deciding that ‘residential development in natural forests is not
considered an exceptional circumstance’ had therefore taken into account an
‘irrelevant consideration’ in refusing the application. In addition, the first respondent
had failed to take into account the expert evidence tendered by the appellant that the
development would not cause ‘significant disturbance’ and that there would not be
‘destruction’ of the natural forest as a whole. The decision accordingly fell to be
reviewed and set aside in terms of s 6(2)(e)(iii) of the Promotion of Administrative
Justice Act 3 of 2000 (the PAJA). This section provides that a court has the power to
judicially review an administrative action if ‘the action was taken, because irrelevant
considerations were taken into account or relevant considerations were not
considered’.
7.3
In terms of s 6(2)(d) of the PAJA a court has the power to judicially review an
administrative action if ‘the action was materially influenced by an error of law’. The
appellant submitted that the decision of the first respondent was ‘materially
influenced by an error of law’ in the interpretation it had placed upon the provisions
of s 3(3)(a) of the Act. From the answering affidavit of the first and second
respondents, it is clear that the first respondent interpreted the sentence ‘. . . natural
forests must not be destroyed . . .’ to mean ‘any part of a forest however small, and
not a forest in its entirety’. In addition, according to the first respondent, if smaller
trees had to be cut and/or removed, such cutting ‘amounts to the destruction of trees
in a natural forest, and that would lead to the destruction of forest’.

7.4
The adoption by the first respondent of the policy entitled ‘Policy Principles
and Guidelines for Control of Development Affecting Natural Forests’ (the Policy)
which provided that ‘[r]esidential development is not considered to be exceptional
circumstances’ resulted in the first respondent applying this principle invariably, as a
hard and fast rule in every case. The use of this principle as a decisive factor and not
simply as a guide, when considering the appellant's application, resulted in a failure
by the first respondent to properly exercise its discretion.
[8] In summary, the appellant's argument was that if the respondent had
properly exercised its discretion in terms of s 7(4) of the Act, it would have concluded
that the natural forest was not going to be destroyed, which meant that s 3(3)(a) was
not applicable, and even if it was, exceptional circumstances were present justifying
the grant of the licence to the appellant.
[9] The court a quo did not decide the application on the basis that the first
respondent had failed to properly exercise its discretion, but on the basis that there
was insufficient evidence to determine whether the natural forest would be
‘destroyed’ by the development, for the purposes of s 3(3)(a) of the Act. It held that in
the absence of such a factual finding the provisions of the section were not activated,
‘applicable’ or ‘triggered’.
9.1
In this approach the reasoning of the court a quo was fundamentally flawed.
Before it could be determined on the evidence whether natural forest would be
‘destroyed’, the section had to be interpreted to ascertain the proper meaning of this
term. In the absence of this exercise, no yardstick existed in terms of the section,
against which the evidence could be measured. The crucial enquiry therefore was
whether the first respondent’s interpretation of the section was correct, namely that
natural forest is destroyed for the purposes of the Act, if ‘any part of a forest however
small, and not a forest in its entirety’ is destroyed.
[10] The erroneous approach of the court a quo is illustrated in the following
extracts from the judgment. It defined the issue for decision in the following terms:
‘There is a dispute between the parties as to whether [s 3(3)(a)] has application, the stance
of the applicant being that the proposed development will not lead to the destruction of the
forest and therefore [s 3(3)(a)] is not applicable.’

The court a quo then pointed out that the view of the first and second respondents
was that the development would of necessity require the removal of indigenous
trees, a conservative approach was necessary and that the word ‘destroy’ should
enjoy a wide meaning.
[11] The erroneous view of the court a quo that an interpretation of the provisions
of s 3(3)(a) of the Act and more particularly, the sentence ‘natural forests must not
be destroyed save in exceptional circumstances. . .’ was not necessary for the
determination of the dispute between the parties, is illustrated by the following
extract from the judgment:
‘The word "destroy" is not defined in the Forests Act and while generally it denotes a state of
destruction or the bringing to an end of the existence of something (see South African
Concise Oxford Dictionary), there may be merit in the suggestion that in the context of a
natural forest, it may require a different meaning relative to the context. However, whatever
the position may ultimately be, it does appear that in order to determine whether or not
[s 3(3)(a)] is applicable, a factual enquiry with clear information with regard to both the
proposed development and its impact on the natural forest which should include the number
of trees that will be uprooted (and replanted if needs be), and the number of trees that will
require pruning and cutting, will be necessary. In the absence of this information, it becomes
speculative to make an assessment as to whether a proposed development will result in the
destruction of a natural forest and whether this would then activate the principle as set out in
[s 3(3)(a)] of the Forests Act.’ (Emphasis added.)
[12] The court a quo then referred to the fact that the original application by the
appellant was sought in respect of all of the residential properties, including the
boardwalks and garages that would form part of the development. The appellant
had, however, in its supplementary replying affidavit restricted the application to one
of the properties, namely Erf 1126, in which plans were available for the proposed
home and some information had been furnished as to the effect of the construction
upon the natural forest.
[13] The ratio for the decision of the court a quo appears in the following
passages from the judgment:

‘All of the above only relates to Erf 1126 where there are building plans that have been
developed. The situation insofar as it relates to the other erven in respect of which the
Section 7(1) licence is applied for is unclear as there are no plans for such erven and
accordingly it would be impossible to quantify the effect of any proposed development on the
vegetation and indigenous trees.
It is this lack of detail, both in respect of Erf 1126 (in particular the garage site and the
access route from the garage site to the residential erf) that prevents a proper quantification
from taking place with regard to any possible forest destruction and the related question as
to whether Section 3(a) is triggered.’ (Emphasis added.)
[14] In the result, the court a quo concluded that:
‘Under these circumstances where the nature of the relief sought has appeared to change
and even in respect of the "amended" relief there appears to continue to be areas of
uncertainty in respect of the damage to the natural forest, to conclude that the sixth and
seventh respondents’ decision to refuse the licence applications in respect of all of the
erven, would not be justified simply by reference to the effects to which reference has been
made. . . .
In addition, and for the reasons given, the continuing uncertainty with regard to the number
of trees that will be affected by the development in its entirety must all stand in the way of a
proper assessment as to whether [s 3(3)(a)] is applicable as well as the scope of the licence
sought in terms of Section 7(1).’ (Emphasis added.)
The fundamental flaw in the highlighted portion of the judgment is readily apparent.
At the risk of repetition ‘whether section 3(a) is applicable’ can only be decided once
the correct meaning of the sentence ‘natural forests must not be destroyed’ in the
section is determined.
[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

1 Natal Joint Municipal Pension Fund v Endumeni Municipality [2012] ZASCA 13; 2012 (4) SA 593
(SCA) para 26.

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.’

K G B Swain

Judge of Appeal

Appearances:
For the Appellant:

K Hopkins

Instructed by:

BKM Attorneys, Johannesburg

Claude Reid Attorneys, Bloemfontein

For the Respondent:

G Bofilatos SC (with R Oosthuizen)

Instructed by:

The State Attorney, Pretoria

The State Attorney, Bloemfontein
THE SUPREME COURT OF APPEAL OF SOUTH AFRICA

MEDIA SUMMARY OF JUDGMENT DELIVERED IN THE SUPREME COURT OF APPEAL

FROM

The Registrar, Supreme Court of Appeal

DATE

22 September 2017

STATUS

Immediate

Please note that the media summary is for the benefit of the media and does not form
part of the judgment.

Long Beach Home Owners Association v Department of Agriculture, Forestry
and Fisheries (South Africa) & another (865/2016) [2017] ZASCA 122 (22
September 2017)

Media Statement

The SCA today upheld an appeal against a refusal by the High Court to review and
set aside a decision by the first respondent, the Department of Agriculture, Forestry
and Fisheries to refuse an application by the appellant, the Long Beach Home
Owners Association, for a licence in terms of s 7(4) of the National Forests Act 84 of
1998 (The Act). The appellant represented the owners of seven properties located
within a ‘natural forest’ in terms of the Act, who wished to construct homes on their
properties. Before doing so, the requisite licence had to be obtained. It was held that
the first respondent misconstrued the discretion it possessed in terms of the Act and
the decision 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 fell to be
reviewed and set aside in terms of s 6(2)(d) of the Promotion of Administrative
Justice Act 3 of 2000 and was referred back to the first respondent for
reconsideration and decision.

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