July 24, 2006
By Neil Fraser
Following a number of Citichat columns written last year in regard to the proposed Gauteng precinct, I received numerous emails asking how people could best make their opposition to the plan known.
In Citichat 34/2005 I advised that "I will submit a further appeal including the names of all of those who have written to me requesting to have their names associated to an objection".
That was duly done in November 2005 when I submitted some 80-plus names in a notice of appeal to the authorities.
The appeal hearing was held on Wednesday last week. Five appeals had been lodged: one from Herbert Prins, representing a group of about 40 persons; another from the South African Institute of Architects; a third from the Parktown and Westcliff Heritage Trust; and the fourth from myself, representing the Johannesburg Heritage Trust and the group of about 80+.
The fifth would have been from the City Council, but it had been withdrawn earlier this year.
The appeal submissions
'Our' submission was in four parts.
Part one was a heads-on argument regarding:
- the legality of the decision-making process;
- the failure of the Committee to give meaningful effect to the spirit and intentions of the NHRA in assessing the cultural significance of the buildings proposed for demolition and the potential effect of the loss of these buildings as an integral part of the National Estate; and
- the committee's failure to understand and/or consider the direct impact of the proposed GPG Precinct development on heritage resources.
We, together with the other appellants, were advised at the start of the appeal hearing by the chairman that we should not address these 'procedural' or 'technical ' issues in our presentations as they would be investigated by the appeals committee. That, in itself, appeared to me to be questionable.
We (I was assisted by Professor Lone Poulsen and Sue Krige) therefore spoke to the three other parts of our submission – Poulsen on the architectural and urban design issues, Sue Krige on the heritage issues and myself on the economics of the proposal. Should any Citichat reader wish to have a copy of any or all of our submissions I would be happy to provide.
There are a number of issues that I have found very disturbing about the process and procedures that have been adopted in this whole GPGP saga.
But first let me again state my position as I did in Citichat 34/2005: "Just to again state clearly that I am highly supportive of the Gauteng Provincial Government's proposals to 'bring together different GPG departments in a cost-effective manner'. I am equally highly appreciative of the published 'potential benefits' of the project which include improving service delivery; identifying a vehicle for changing equity ownership of the property estate in the CBD; improving space functionality and working environment; eliminating process and work disruption and creating an urban design of a government precinct through consolidation of office space structures that will act as a stimulus for urban regeneration and socio-economic empowerment. I am also supportive of creating a resource that celebrates the heritage of African peoples who were here before the 'discovery' of gold in 1886.
"What I am totally opposed to is creating a poorly conceived public open space at the expense of culturally significant buildings and irretrievable damage to an important existing heritage resource. The celebration of those African peoples here prior to 1886 must be done, but in an appropriate place and manner."
So, what disturbs me about the process and procedures?
Processes and procedures
Firstly, as a country though, I am concerned that we gave birth to some excellent legislation but which is often badly flawed. Either it is highly impractical in its policing or implementation or the same government that produces the legislation does not provide the means for administration, policing or implementation. The National Heritage Resources Act (NHRA) is but one example. The Provincial Heritage Resources Authority (PHRA), established in terms of that Act, is hopelessly inadequately funded, resulting in it being completely understaffed and not able to carry out its responsibilities under the Act.
Another is recent legislation introduced by the government in regard to the construction industry. Again excellent objectives but, as commented on in a recent edition of The Civil Engineering Contractor "While the intention of the legislation is sound, its implementation and, particularly its policing, are almost non-existent. The situation is akin to the law relating to cell-phones in cars. Everybody knows you should not use them, but every second driver has his hand glued to his ear while driving …. In a developing country such as ours … it's not helpful to have a plethora of unenforceable legislation moving traditional responsibilities into areas without expertise."
While the NHRA became law in 1999, SAHRA, as the heritage resources authority responsible for the development nationally of all requisite standards and norms with respect to the protection and management of heritage resources, has failed to develop the necessary system for the grading of places which form part of the National Estate.
This was a pertinent issue in the decision of the original SAHRA committee that approved the demolitions. That committee conveniently elected to ignore the problem surrounding this issue when stating that the Heritage Impact Assessment's choice of terminology was felt "not to be congruent to the National Heritage Resources Act". Yet the Act clearly states that "SAHRA, in consultation with the Minister and the MEC of every province, must by regulation establish a system of grading of places and objects which form part of the national estate ... and which prescribes heritage resources assessment criteria, consistent with the criteria set out in section 3(3), which must be used … to assess the intrinsic, comparative and contextual significance of a heritage resource…."
Seven years and we don't have a system of grading in place.
Secondly, there appears to be a growing attitude that in cases of what the government perceives as its own imperatives, it is not necessary for them or their agencies to comply with the letter of the law that they themselves have promulgated. Should this particular case end up in court, as I fear it will do, the many issues of procedural unfairness (which were not allowed to be debated at the hearing) will have to be answered.
Some of these were included in our main heads of argument:
- SAHRA did not afford interested and affected parties a reasonable opportunity to make representations when the matter was being decided. The Long Title, the Preamble and S5(4) of the NHRA make it clear that the management of heritage resources is intended to be a co-operative process. It is submitted that the spirit of the NHRA was not heeded in the assessment of the decision being appealed.
- The decision being appealed was not made at a public hearing. It is submitted that a "behind closed doors" assessment of the matter does not embrace the spirit of the NHRA, the principles of natural justice and the principles of fair administrative action. [S5(4) of the NHRA; the audi alteram partem rule of natural justice and the constitutional right to fair administrative action; the provision of the Promotion of Administrative Justice Act (PAJA)].
- The decision was unlawfully influenced by observers to the decision, who participated in the decision-making process. [Paragraphs 4.1 of the Minutes].
- SAHRA did not make available a clear statement of the administrative action taken after the decision was made. [S5(3) of the NHRA].
- SAHRA did not clearly advise interested and affected parties with adequate notice of the right to appeal and request reasons. [S5(3) of the NHRA, the provisions of PAJA ].
- When interested and affected parties made repeated requests for guidance from SAHRA as regards the appeal process and procedure to be followed, SAHRA simply ignored those requests for clarity. [S5(3); S5(4) of the NHRA; provisions of PAJA].
- From a general point of view, the decision-making process was not transparent. [S5(4) of the NHRA: the provisions of PAJA].
On the City Council
Thirdly, the issue of the withdrawal of the City Council's appeal.
As I understand it, and as was recorded in the media, the mayoral committee was "visited" by two provincial MECs resulting in the Council withdrawing their appeal. They evidently agreed to do so subject to the Council and the province meeting as soon as possible to discuss the Council's difficulties with the proposals.
According to the media report, this meeting was to have taken place within two weeks. I believe that to date only a preliminary meeting has been held - and only eight or more weeks after the withdrawal of the Council's appeal.
However, what really concerns me is for the province to pressurise the more politically "junior" City Council to withdraw its appeal – I think that this is scandalous.
When I was in Perth a couple of months ago, I looked at their equivalent of Gautrain which is currently under construction. The city official who was showing me around the city, told me that the provincial authorities had wanted the train section through the city to be above ground. They were told by the city in no uncertain terms that this would not be allowed and they have had to tunnel below the city to accommodate the train as a result. Surely that is the way things should be in a democratic society. The City is the responsibility of the Council and they should have been permitted to address their appeal at a hearing in terms of the Act.
It's the only history we have
Fourthly, the issue of heritage conservation in a country with such a bad history – as the premier himself said at the sod-turning ceremony of the Constitutional Court, "it is the only history we have".
There is a vast difference between retaining buildings steeped in the history of the city and choosing parts of the buildings to be demolished and building them into various dispersed parts of a project to memorialise what has been demolished! These are buildings that the heritage expert employed by province described in the Heritage Impact Assessment (which was totally rejected by the SAHRA committee) as of either of "considerable cultural significance" (eight buildings) or "exceptional cultural significance" in one case. The buildings so described are going to disappear. Space does not permit me to reproduce in full the excellent submission to the appeal hearing by historians Sue Krige and Elizabeth Delmont. But here are some pertinent extracts:
"The Union Buildings complex is one of the foremost examples of colonial architecture, symbolising Union in 1910 and the exclusion of people of colour from the ruling white regime. Yet it has become a symbol of the liberation of South Africa, forever associated with the inauguration of President Mandela in 1994."
On the issue of redress: "The notion of redress is central to the Act. The Preamble of the Act is eloquent in its bringing together of the health or healing of the nation with the notion of symbolic and material redress. Thus we affirm the richness what has been ignored as well as what we have, and come to a more empathetic understanding of our fellow citizens.
"Our heritage celebrates our achievements and contributes to redressing past inequities. It educates, it deepens our understanding of society and encourages us to empathise with the experience of others. It facilitates healing and material and symbolic restitution and it promotes new and previously neglected research into our rich oral traditions and customs.
"Redress does not mean the destruction of heritage resources on the basis of their association with a particular historical period, regime and/or exploitative and exclusionary practices and painful memories. Indeed it seeks to highlight all experiences and activities, using the existing traces where possible, while foregrounding experiences which have been neglected or silenced in the past."
"Managing and promoting heritage is not a backward looking pastime. We are dealing with how people see, understand and use past and present practices in the present. As we have said, meaning and significance can change over time and cannot be fixed forever. So, we cannot second-guess what future generations will find significant. We can only ensure that as wide a range of heritage as possible is preserved for their enjoyment and commemoration, and that young people are involved now in finding out about it."
"An historic site contains the histories of all the people who are and have been associated with it. It is an anchor, a place of departure from which to tell these histories, and to express needs and hopes for the future. The traumatic and transforming urban experience of Johannesburg is common to all its inhabitants, though the experiences were intensified by race, class and gender."
"Many areas in Johannesburg had both their physical layers and their memories expunged by forced removals and/or by barely controlled expansion. The Johannesburg CBD has been a prime site of these forces of destruction."
"The existing square is important as one of the markers of the urban experience over time. It still contains the footprint of the original Market Square, and is enclosed in part at least by buildings designed to look upon it. The GPGP would blur and obscure the outline of one of Johannesburg's oldest and most historic public space, namely Dr Beyers Naude Square (previously known as the Market Square and later the Library Gardens). Its associations range from a market site as a cultural exchange/melting pot to a place of public meetings and political ferment right up until the security workers' strike of 2006. To essentialise this multi-faceted history into a symbolic Tswana homestead is to be both narrow and patronising about what has constituted and constitutes urban identities in Africa and the world."
"The role and responsibility of government entities vis-a-vis protection of the national estate is another major consideration. Under the National heritage Resources Act of 1999, all tiers of government are charged with responsibility for heritage protection. Furthermore, as owners of heritage property, the Provincial Government (in common with other levels of government) bears special responsibility for historic resources which lie directly under their control and ownership."
"Government should exercise a stewardship role in managing its heritage assets and in the process set appropriate standards for private owners of heritage to follow. In practical terms, this would mean setting aside the proposed demolition of heritage buildings identified in the HIA and considering the sustainable re-use of these assets".
The Appeal Committee has 30 days in which to come to a conclusion - don't hold your breath.
Regards, Neil
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