Forests, plantations, call them what you will, they have one fundamental in common: trees. And it is among the trees, the whispering breeze overhead, and the dappled light at my feet that I recharge myself and connect with nature. It doesn’t bother me that the trees are pines; the fact that they are trees is enough. For trees, irrespective of species, hold within themselves restorative power. I walk in the Tokai forests to escape stress, to unwind and to be inspired. I haven’t been in the lower plantation for a while but last week I was horrorstruck when emerging from the young pines near the stream to find myself facing an expanse of scrubby land – marked off with red and white tape. The reconstitution of fynbos. To my eyes it looked like a graveyard. Acres of what looked like scrubby bush. And evidently more is planned. And this is the future we can look forward to? Thanks but no thanks. Tell me you’ll replant trees (and trees) and I’ll be happy; tell me I’m facing a future of Fynbos and you can keep it. I want to be able to walk in the shade surrounded by the rustling murmur of the wind above me.
Nicky Schmidt, Tokai (21 September 2006)
It seems the public fracas attending the ravaged Dennendal pine plantation marring Table Mountain National Park’s Lower Tokai section effectively ended two years ago. This is so because action in August 2016 by SANParks and MTO Forestry to clear fell the remaining trees was subject to costly litigation by the trees’ guardians, the ever-obstructive Parkscape – a purported community organisation seeking (ostensibly) to promote “safe, biodiverse, open and shaded urban parks in the buffer zones of the Table Mountain National Park”.
The last of the greater Tokai Plantation, slated to be cleared and returned to TMNP between 2021 and 2024, sits atop aging seed banks of critically endangered Cape Flats Sand Fynbos (CFSF) which, with each passing year, lose biodiversity and the capacity to restore themselves with vigour. Parkscape sought and was awarded an order of court forcing SANParks and MTO Forestry (the latter leases the land from the former) to consult the public when conducting private business in terms of the lease agreement.
That seemed to be the end of it.
The old saw tells us that things are seldom as they seem.
And it is correct.
Notwithstanding the requirements of Parkscape went to the Cape Town High Court based on what it saw as a breach of the Promotion of Administrative Justice Act, Act 3 of 2000 in terms of the Tokai-Cecilia Management Framework (TCMF).
Finding insufficient support for its argument in the TCMF (the lack of any timeline constraining SANParks and MTO’s actions), it sought to fault SANParks in terms of its lease agreement with MTO. Somewhat disturbingly, the judge, Patrick Gamble, agreed to allow into evidence Map 4B, the lease’s Tokai/Cecilia Management Framework Plantation Harvest Schedule, thereby giving Parkscape a timeline enabling it to argue its case for administrative justice in terms of both the TCMF and the SANParks/MTO Forestry lease agreement – in short, administrative and contract law.
Reload document 
Open in new tab Gamble J handed down judgement on the matter in the Cape Town High Court on 1 March, 2017, finding that SANParks had exercised public power in taking administrative action, i.e. it had accelerated the clear-felling of pines in terms of Clause 10 of its lease with MTO Forestry without due public consultation. Judge Gamble found:
[T]he right on which Parkscape relied was not the right to shaded recreational areas as such but the right to be heard in accordance with a fair procedure in relation to any decision to expedite the clear-felling schedule, the consequence whereof would be the immediate loss of a shaded recreational area which was only destined for removal many years hence.
SANParks immediately, and on numerous grounds, appealed the judgement and went to the Supreme Court of Appeal which, on 17 May this year and, with a strong dissenting minority judgement lending legitimacy to the proceedings, found in favour of Parkscape.
In his dissenting judgement, Rogers AJA was able to distinguish clearly between administrative and contract law and argued:
“…that the appellant’s [SANParks’] 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.”
Needless to say, he would have upheld SANParks’ appeal. His argument, focusing on the contractual nature of Clause 10 of the SANParks/MTO Forestry lease agreement, is as incisive as it is compelling. It seems that even the learned judges of the SCA find the law open to different and, sometimes, contradictory interpretations. And when they do, they publish their judgements.
So, two years after MTO sought to harvest its trees in the National Park and thanks to Parkscape driving untold numbers of potential CFSF plants to species extinction, we’re back to where we started.
Sections 70 (1)(a) and 76 of the National Environmental Management: Biodiversity Act, Act 10 of 2004, the National Environmental Management: Biodiversity Act, Act 10 of 2004: Alien and Invasive Species Regulations, 2014, and the National Environmental Management: Biodiversity Act, Act 10 of 2004: Alien and Invasive Species List, 2014 prohibit aliens in all but plantations.
Tokai Park, by an order of court, remains, until 2025, a plantation in name and not in fact. For all practical purposes, some 50 ha of commercially useless pine and a local elite fearing its loss of 25 ha of shade, SANParks and MTO Forestry may as well tear up their lease agreement and return the land to the people. But, favouring administrative and contract law over environmental law, our judiciary prohibits them doing so until 2025.
How many Fynbos species will be lost to Tokai’s seedbanks over the next seven years?
Who knows? Who, one might wonder, really cares?
Parkscape, emboldened by its court victory on the questionable interpretation of a technicality in the SANParks/MTO Forestry lease, has opened the TCMF to ‘rejigging’ in its favour by exploiting (courtesy of the City’s well-heeled citizens and a highly-manipulative media campaign) virtually non-existent crime and an inevitable public-participation process on the TCMF.
We canot allow it to win this frankly unwinnable battle to retain, in perpetuity, its beloved pines at Lower Tokai. Nor will we.
For, despite the following protestation:
For the record, Parkscape does not and has never supported the retention of pines – that ship sailed back in 2006 – 2009. Our mandate first and foremost is safety, followed by the creation of an urban greenspace that meets community needs – which includes shaded recreational areas for a number of different user groups.
Parkscape Facebook page
…shade (therefore the existing pine trees) remains Parkscape’s raison d’etre.
Over a mere 10 years, only a Damascene revelation could change the attitude heading this post (Nicky Schmidt’s Ode to Pines) and, until the comment on Facebook quoted above, no change of heart has been evident. Parkscape and its Chair are all about the shade and retaining pines on the Wildland Urban Interface (WUI).
And Parkscape will go to any length, just as it did by exploiting the brutal murder of a local teen, to have you think what it wants you to think.
Technically, with a Supreme Court of Appeal judgement backing it, it has the wind at its sails.
Unfortunately for Parkscape, which launched its campaign to whip up fervour for its cause back in June, its sails emit only wind. The organisation invests way too much faith in the qualification of its pay-to-play botanical and environmental advisor, Professor Eugene Moll, the man tasked with swaying public opinion on ‘scientfic’ grounds.
Launch day of Parkscape’s awareness-raising campaign comprised a lecture, Lower Tokai Management: a modern scientific perspective, delivered by the good professor, a spritely septuagenarian addressing (I assumed) a packed house of like minds, at the Kirstenbosch Botanical Gardens on Wednesday, 13 June 2018.
I (and, as I noted, several members of Friends of Tokai Park) duly took my place in the audience of wealthy patrons. Wealthy? Well Hell, yes. The talk was advertised as free but, on arriving at Kirstenbosch, I found myself shelling out a R65 entrance fee. That accounted for 25% of my weekly budget.
And what a bloody waste of money it was too. Professor Moll’s lecture, based less on science and more on advocacy of Parkscape’s cause, went down like a lead balloon. It elicited pointed questions and no praise.
The clue to Moll’s failure to gain acceptance to the weird notion that a portion of our national park should be turned into yet another Green Point Park (a truly urban park) lies in the title of his talk; “a modern scientific perspective”. “A privatised, New-Age and decidedly unbelievable perspective” might have been more punchy – and truthful.
But it was vintage Moll. “Vintage” as in he’s said it all before. His presentation was premised on the notion that SANParks’ poor communication skills front a colonial western plot to subvert and quash African initiative by way of excluding local communities in the running of our national parks.
And yep, he’s said as much before:
My passion is biodiversity conservation and people – the ‘and people’ part is critically important because conservation is a human construct….We need to find African solutions to the problems and not foist Western conservation ideals onto local people.
People’s Post 1 November, 2016
This from a guy that bases his qualification to make such a statement on a list of degrees grounded in “Western conservation ideals.” A bit thick (and an opportunistic, condescending and perhaps illuminatingly racist view of “local people”), if you ask me.
Nonetheless, Professor Moll’s lecture was enlightening and afforded great insight into what is at stake to those invested in the TCMF and the future of TMNP’s Lower Tokai Park.
Expounding and expanding on his new-found Africanist outlook, Professor Moll trashed the International Union for the Conservation of Nature (IUCN) judging the Biodiversity and Land Use (BLU) Project of the South African National Biodiversity Institute (SANBI) favourably as an example of such neo-colonial adventurism.
(BLU was, incidentally, awarded a highly-complimentary and well-deserved Satisfactory rating by the equally neo-colonial United Nations Development Programme (UNDP).)
You could accuse me of nitpicking here. Are scepticism and robust debate between academics and their institutions not what drive science forward?
Of course they are. But not when they upend common sense.
Professor Moll’s lecture was based on a highly-contentious premise: that the Holocene introduced disharmony between Homo sapiens and nature and the Anthropocene introduced us to a new era of “compassion for nature”. The Holocene is the current geological epoch. It stretches back 11 650 years. It marks the end of the last ice age and introduces, with the advent of agriculture, the trashing of the planet by modern humans. We numbered only between one and ten million at the start of the Holocene but had already established a global presence.
Of the Anthropocene, Wikipedia tells us:
The Anthropocene is a proposed epoch dating from the commencement of significant human impact on the Earth’s geology and ecosystems including, but not limited to, anthropogenic climate change.
Well, yes, okay…but is it not then synonymous with the Holocene?
More from Wikipedia:
Various start dates for the Anthropocene have been proposed, ranging from the beginning of the Agricultural Revolution 12–15,000 years ago, to as recent as the Trinity test in 1945.
Hmm, exactly…and it then goes on to inform us:
As of August 2016, neither the International Commission on Stratigraphy nor the International Union of Geological Sciences has yet officially approved the term as a recognized subdivision of geological time.
Oh, so it’s not recognised by any neo-colonial Western scientific organisation enjoying international authority or respect. Perhaps the “local people” came up with it? Ehem. By and large though, the Anthropocene, when not used to describe a geological epoch, is used worldwide to describe the 250-year period of industrialisation in which our species multiplied from some 700 million to well over seven billion, i.e. by an order of magnitude.
Mind-boggling, eh? It took us some 120 000 years to multiply 700 times and, driven by greed and the accumulation of capital, only 250 years to…you get my point.
Finding common cause with new-conservationist Fred Pearce, author of The New Wild: Why Invasive Species Will Be Nature’s Salvation, Professor Moll believes it’s been a jolly good time. The Anthropocene equates to accepting the “novel and functional” (and, of course, their profits) whereas a “preservation mythology” dominates the Holocene. The former is our all-new current era, during which we’ve learned to put people first, accept extinction as a natural and not fatal phenomenon (sic) and practice “compassion for all life”.
Put that mess of revisionist Africanism and Western anthropocentrism in your pipe, smoke it and see if it doesn’t remind you of the acid trip you took back in 1979.
The generally accepted, near-term Anthropocene has seen us destroy everything that’s near, dear and needed for our species to survive. So much for our “novel and functional…compassion for all life”.
Scepticism? Debate? No. This is your much-touted evangelical Environmentalist speaking. Scientific principles are being harnessed and beaten to service junk science in a small corner of TMNP.
Whether you or I accept this befuddled melange of crazed inexactitudes or not is beside the point. The learned professor foresees, among Parkscape’s indigenous peoples, conservationists, ramblers, dog walkers, horse-riders, runners, cyclists, families and others jostling to reach the cultural programmes, play or treed areas, medicine gardens, traditional healers, craft markets, events, picnic sites, running, cycling, mountain-biking or horse riding tracks, armed guards or parking areas of their choice…a Cape Flats Sand Fynbos garden at Tokai Park.
Isn’t that nice? In the middle of the Table Mountain National Park where, according to Professor Moll, “Cape Flats Sand Fynbos stands no chance.” Were our monocultural profess(e)r to emerge from beneath his beloved trees, he would see – immediately adjacent to them – that some 350 species of fynbos have rejuvenated.
Good grief! Parkscape did itself a real disservice with this one. Little wonder the lecture, advertised on Parkscape’s Facebook page, saw no comment or follow up on either its timeline or the organisation’s website.
Legally, Parkscape, at great financial cost to the taxpayer at large, has diminished environmental law and succeeded in tripping up SANParks on a questionable procedural matter (read Rogers AJJA’s dissenting judgement). In doing so, it’s doomed who-knows-how-many fynbos species to extinction. But that is about as good as it will get for this hapless outfit for, ultimately and within the more meaningful context of those for whom the successful coexistence of our city and our natural places is paramount, it has succeeded in tripping up only itself.
I’m calling bullshit on both Professor Moll and Nicky Schmidt’s nonsensical and contradictory utterances. Unlike fallible justices of the Supreme Court of Appeal interpreting the law, their judgement on environmental matters is severely impaired and highly questionable.
“They can’t get the fynbos back, no matter what they do.”
Professor Eugene Moll Kirstenbosch 13 June, 2018
Yeah, right.
Mike Golby writes – at length and, occasionally, with reactive venom – in his personal capacity. His views and the way he frames or articulates them do not in any way reflect or seek to reflect the views of The Cape Aflame Project Team.
As a member of the Cape Aflame Project Team, a group committed to supporting those who protect our biodiversity from an ever-increasing number of urban-based threats, he is as entitled to air his views as Parkscape.
A notable difference between his material and that issued by Parkscape is that he makes no claim to represent anybody but himself – an ordinary Capetonian with access to information in the public domain. Nor does he send hate mail.
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