a Word from our Chair

Dear OCA members

We are deeply dismayed by two recent developments that you will have heard about. Firstly, on the 20th August the Department of Environmental Affairs and Development Planning (DEADP), issued an Environmental Authorisation to the owners of the River Club property, LLPT, for their massive mixed-use development on a sacred piece of land and heritage resource. As our previous newsletter pointed out, the EA is a decision that we believe is biased, unreasonable, and unlawful. But hardly had the EA been issued when we received notice that an application for rezoning, first submitted in August 2018, was to be considered at the Municipal Planning Tribunal. Many of you were also objectors to the rezoning from 2018 so would have gotten this notification as well. In fact, there were about 180 objectors.

This was quite an acrobatic feat on the part of City planners to help the LLPT get their application considered given that the City, in terms of the Municipal Planning By-Law, may require an application to be re-advertised if two years have elapsed since first applying or if new information is available which is relevant to deciding the application. Since 2018, we have seen Heritage Western Cape reject the developer’s HIA as failing to the meet the requirements of the National Heritage Resources Act, and after the Environmental Authorisation decision by DEADP, we have seen the unprecedented situation of one City Department, Environmental Management, appealing the EA and Heritage Western Cape (HWC) in a separate appeal declaring the EA illegal.

You might think that these developments are clearly relevant to a fair adjudication of the rezoning. However, despite the obvious need to re-advertise the application, the City planners went ahead with the meeting. We should not be surprised given the fact the City and DEADP joined the developers in opposing Heritage Western Cape’s provisional protection order over the River Club in 2018, claiming there was no imminent threat to heritage. The collusion between the planners in the City, the officials in the provincial government, and the developers in the Heritage Appeal Tribunal have been acted upon with perfect coordination and timing. And the threat to heritage confirmed in the Heritage Appeal Tribunal directive, is now overwhelming.

The MPT meeting turned out to be what communities have long said it is – a rubber stamp for developers. We know, for example, that the Bokaap community are still in a legal battle over the MPT’s approval in 2016 of a monster building cutting off the Bokaap heritage area from any sight of the City – one of the few areas where black families have had easy access to the City will now be walled off by a 60m high, R1 billion development of 4 000m² of retail space and 250 residential apartments. This is the kind of decision-making the city has created which Crispian Olver exposed in his book about the City of Cape Town’s capture by developer interests enmeshed with political conflicts in the province.

Even trying to get an opportunity to present at the MPT on Friday proved to be a challenge. Objectors were treated as interlopers, told we were too late to present (which we weren’t), and told that we could most certainly not present new information to the Tribunal. In the end, it was at the discretion of the Tribunal chair that five objectors were allowed to present – Lelethu Mgedezi (from the LRC) and Tauriq spoke on behalf of the Goringhaicona, I presented for the OCA, Jonty Cogger for Ndufuna Ukwazi, Robert Ketteringham as an Observatory resident, and Riad Davids for TRUPA.

The hearing went more or less as follows:
The Case Officer introduced the matter but went to great lengths to provide a trumped-up explanation for why the City did not insist on re-advertising the application when they could have.  There are two grounds for re-advertising – if the application is more than 2 years old and if new information is available. To avoid this, she claimed that the development was actually advertised on the 14 September 2018 even though the original letter said 24 August which must surely be an extraordinarily convoluted piece of posthoc rationalization so they can claim the period elapsed is not 2 years.
Secondly, she claimed the application was basically the same as what was submitted in 2018. No mention of the Heritage Appeal Tribunal Directive or the final comments by HWC on the HIA in Feb 2020, even though the developers included their own consultant’s poisonous response to the final comments in March 2020. So, go figure that – the developers have the opportunity to tell the MPT why HWC are wrong but the MPT are not provided with the HWC report that their heritage consultant attacks, and we are told we cannot introduce new information…
She needn’t have bothered and simply could have said the City was not interested in a fair process and have the power to pursue an unfair process.

The Goringhaicona input focused on the legal context for first nation heritage in South Africa and the importance of the site for First Nations.

Our objection pointed out that the MPT could not adjudicate the rezoning without sight of key documents that the case officer had not provided them.  Both the HWC final comments and their appeal were clearly relevant, as was the City’s Environmental Management appeal. But our input fell on deaf ears.

Jonty Cogger, from Ndifuna Ukwazi, did not argue for affordable housing on the floodplain, pointing that normally NU would have pushed affordable housing as part of Spatial Planning and Land Use Management Act (SPLUMA) principles of spatial justice, but in this case, NU recognized that spatial justice is also about heritage and memory and so they opposed this development. Robert Ketteringham made a brief presentation that the proposed developed failed to actualize Non-motorised transport. Riad Davids focused on environmental concerns and appealed to the MPT members to do the right thing.

But despite our best efforts, the MPT bought into that fiction that they did not need any more documents to enable them to bring out the rubber stamp.

One of the most disappointing aspects of this farce was that our Ward Councillor, Paddy Chapple, failed to object to the development. Our Councillor is meant to represent the interests of his constituency in ward matters by submitting comments to the formal process. Despite three appeals, we made to him to express his strong objection, he declined to object but sent a private note to officials indicating he had a concern about the objector list. We feel we have been totally betrayed by our Ward Councillor on this matter and, when we expressed our dissatisfaction to him, he dismissed this concern as the OCA trying to vilify the Councillor. I leave you to judge who is working against whom on this matter of the River Club.

Despite this gloomy picture, we will not give up because we believe in our cause, we believe in justice and we believe South Africa is a democracy in which procedural justice and fairness are preserved in a Constitution for which many people fought, and, sadly, died for.

So, we will be appealing both the EA to DEADP and the MPT decision to the City’s appeal authority.

What you can do now:

1. Remember, if you are an IAP in the DEADP BAR process, you have till 29^th September of comment on the many appeals (there were 28) which you should have received. Please support as many of them as you can. Attached is a proforma you can make use of – either in general or specific to the appeals by the OCA, TRUPA, the Goringhaicona, HWC, and the Department of Environmental Management in the City.
2. If you are an IAP in the rezoning process, you will receive formal notification of the MPT outcome and will have a period of 21 days in which you can appeal. We have not yet been notified, but since the City is steamrolling this as quickly as it can to benefit the developers, we expect to see this notification soon. Be on the lookout!
3. Get involved in our Campaign ( See Edwin’s introduction to this newsletter above )
4. Share this information widely

5. Please boost our Petition at change.org. We currently have over 18 000 signatures but really want to push that over 20 000. Sign and/or share with friends.