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Thursday, 04 April 2019 10:25

Letter to Premier Helen Zilla re: "SCHULPHOEK DRAFT CONCEPT PLAN"

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E-mail send 4 April 2019

The Whale Coast Business and Community Forum NPO (hereafter referred to as the WCBCF) is a duly mandated organisation which acts on behalf of our members, which constitutes of approximately 800 business and property owners in the Overstrand area.

 With reference to your meeting dated 25th March 2019 at the Auditorium, Overstrand Municipality. Hermanus.

We, as a non-political, non-racial, public interest entity, support your development plan for Schulphoek and thank you for taking the time to come up with this solution.

In this meeting, you again emphasized the joint agreement that no further illegal dwellings should be erected on Schulphoek while there are ongoing negotiations.

Accordingly, it was again agreed by all (as was previously agreed at the preceding meeting already) that the Zwelihle Renewal / Land Party/ Overstrand Unite (being all one and the same), or any other political party, as well as any other groups, associations or persons, would not continue to encourage/cause erecting illegal dwellings on Schulphoek. If there was proof of illegal dwellings being erected, especially while they were in the process of being erected, these would be stopped and forcibly taken down by the Overstrand Municipality Law Enforcement.

schulphoek 1

You further stated that should more illegal dwellings be erected, this “Schulphoek Draft Concept Plan” would not be entertained.

Unsurprisingly, Zwelihle Renewal / Land Party are deliberately reneging on the agreement to the detriment of the whole of Hermanus, openly burning Milkwoods and Fynbos, and continuously sanctioning the erection of new structures on a daily basis.

milkwood trees burning 1

This occurs right under the noses of the Overstrand Municipality “led” by the dispirited DA controlled town council who has clearly capitulated, preferring to forsake the lawful interests of our many thousands of law-abiding rate-paying community members of Overstrand, instead of acting decisively against such brazen lawlessness and ongoing disregard for the rule of law as enshrined in our Constitution, which costs Hermanus businesses and residents alike, millions of rands in lost revenue, remuneration, rapidly plummeting property values, and the irreparable harm to Overstrand’s core income and wealth generator: -our precious tourism industry.

This continuous inaction by Overstrand Municipality is downright criminal, unlawful forsaking of its statutory obligations, which is causing the Overstrand community massive losses. In the SCA judgment of Lester v Ndlambe Municipality & Another 2015(6) 213 (SCA) at paragraphs [17] to [27] it was made clear that section 26(3) of our Constitution must not only be read in its historical context, ie as a bulwark against the forced removals, summary evictions and arbitrary demolitions of the shameful past dispensation, but also together with ss 26(1) and (2) thereof, since s 26 must be read as a whole. Mokgoro J, writing for a unanimous court in Jaftha v Schoeman; Van Rooyen v Stoltz, emphasised that — '(s)ection 26 must be seen as making that decisive break from the past. It emphasises the importance of adequate housing and in particular security of tenure in our new constitutional democracy'.
The protection afforded in s 26(3) must therefore always, without exception, be read against the backdrop of the right to have access to adequate housing, enshrined in s 26(1).

Thus, where a person facing a demolition order does not adduce any evidence that he or she would not, in the event of his or her dwelling being demolished by order of a court, be able to afford alternative housing, s 26(1) is of no avail to him or her. (my emphasis)

The SCA concluded with the following profound remarks in paragraph [27]: “ I conclude by reverting to what Harms J said in United Technical Equipment (supra) with regard to the City Council's obligations to enforce the law in the face of ongoing illegality being perpetrated by the appellant company in that case:
'The respondent has not only a statutory duty but also a moral duty to uphold the law and to see to due compliance with its town planning scheme. It would, in general, be wrong to whittle away the obligation of the [City Council] as a public authority to uphold the law. A lenient approach could be an open invitation to members of the public to follow the course adopted by the appellant, namely to use land illegally with a hope that the use will be legalised in due course and that pending finalisation the illegal use will be protected indirectly by the suspension of an interdict.' (my emphasis)
Ndlambe is in exactly the same position as the respondent in the aforementioned case — [the municipality] was statutorily and morally duty-bound to approach the court below for a demolition order in order to uphold the law. The court a quo, in turn, had a concomitant duty to uphold the doctrine of legality, by refusing to countenance an ongoing statutory contravention and criminal offense. (my emphasis)

Accordingly, the moment further erections of illegal structures have taken place, Overstrand Municipality should have taken immediate steps, on a case by case basis, to obtain demolition orders in terms of section 21 of The National Building Regulations and Standards Act 103 of 1977. At the very least these structures could still be legally removed despite them having been erected on so-called private land. This can still be done, in view of the census conducted already, and thus OM can demonstrate which structures have been erected since the census and at the very least since the agreement was reached at the first meeting that no further shacks would be erected, as these minutes will show. This, however, is not being done.

As a result Gcobani Ndzongana is publicly ridiculing you both in social media and from political platforms, and openly boasting that he already took the Schulphoek land and the people would not vacate it. The illegal land-grabbing at Schulphoek is continuing unabated and we still see Milkwood and Fynbos clearing fires daily, with the inevitable illegal structures immediately being erected shortly thereafter. Please see attached proof of further houses being erected. 

(Annexure 1) available on request

Moreover, In March / April 2018 after the first protests / riots, the DA run Municipality stated that there would be a survey conducted in which they would ascertain the number of back yard dwellers / shack dwellers. Why are the results of this survey not being made public? How can proper development planning take place without such a survey? How many people are still back yard dwellers, in view of the mass invasion of public and private land in the Overstrand area? Common logic dictates that unless the back yard dwellers are closely monitored and documented, this
influx of opportunistic land grabbers will continue unabated, as when one moves out, two more will grab his/her place, and on top of, erect illegal structures on “captured land” for good measure. What about the rights of law-abiding persons, patiently waiting their turn on the housing lists, which are now being trampled upon?. Surely they are first in line, should they qualify, for housing in any orderly development of Schulphoek?

shulphoek 3   shulphoek 4

In our local newspaper, Hermanus Times, of 28 March 2019, there appeared an article on page 4 (Initiatives that followed) (Annexure 2 available on request) Point 2 – Several emergency housing sites and other housing opportunities were identified. Bonginkosi Madikizela the MEC for Human Settlements announced approximately 40 hectares of land has been identified for creation of 7500 housing
opportunities. Has there also been new infrastructure i.e. Schools, sewerage, water systems etc. that has been identified to be able handle another 7500 houses? Why has the MEC named areas, as we know that that will incite further illegal land grabs, and in particular, how does any responsible government organ dare to do so without proper and timeous public participation in the communities that will be affected?

shulphoek an 2

It is the right of the rest of the community to know where you intend housing the people while your plan is to be implemented, and what the criteria will be? Will anyone qualify and how are these persons vetted?

In conclusion, we as a public interest entity wholly support your previous call for a “Tax Revolt” in appropriate circumstances. Regrettably the time has now arrived for Overstrand community members to embark on a rolling “Tax Revolt”, boycotting the payment of all rates, water and electricity from 9 April 2019, for three months, that is until well after the elections, unless we are given credible assurances (backed up by deeds) that Overstrand Municipality will immediately uphold and comply with its statutory obligations in taking prompt, decisive action in removing illegal structures erected since the date of the first agreement to stop the erection of further illegal structures (in this regard all structures erected on the top of and on the Sandbaai—side of the Schulphoek dune and coastal area fall within this category) , and ensuring the speedy removal of all illegal land grabbers from the Schulphoek area by no later than mid-June 2019, and to, in this regard, vigorously support all present and/or future applications by land owners and public interest entities to ensure that this happens with promptness.

In so far as our proposal for the fine-tuning of the Schulphoek development proposal is concerned, it is our humbly submission that a competition should be held amongst the relevant faculties of the Universities in South Africa, to prepare a proposal for the Schulphoek development that will be forward thinking, utilizing new building technologies and materials, with green technology and community development facilities, including small enterprises and restaurants that can tap into the Overstrand Tourism Industry and attract such tourists and day visitors. In our view such initiatives would greatly enhance the chances of the Schulphoek development succeeding.

An official letter has been sent to Deputy Mayor Elnora Gillian for her to request a meeting with Premier Helen Zille to address the Sandbaai Ratepayers and Business Community on the Schulphoek plans and other issues.

Whale Coast Business and Community Forum

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