In July, 2008, two members of the MPA, who were checking the conservation status of the Magaliesberg from the air, noticed a massive new development that was taking place inside the Magaliesberg Protected Environment (MPE) at Olifantsnek. The MPA immediately informed the North West Department of Agriculture, Conservation and Environment and learnt that they had only recently become aware of this illegal development and were in the process of prosecuting the developer.
Subsequently the MPA learnt that the developer was applying for rectification of his illegal development (a 57-bedroom upmarket hotel), via Section 24G of the National Environmental Management Act, and although the MPA formally submitted its strong objections to this, we were notified on 9th March, 2009 that the Department had approved the application, and that the developer was permitted to carry on with his hotel development. This approval was given despite the fact that the EMF (Environmental Management Framework) for the Magaliesberg Protected Environment classifies the area where the Kgaswane Country Lodge is situated as ?highly sensitive?, and designates hotels, lodges and conference centres as ?incompatible activities in such an area.
Significantly, although the EMF had been completed by the Department in 2007 and had been used since then to guide their decision making on developments in the MPE, it was only gazetted by the Department less than a week after the decision to retrospectively approve the hotel development. However, regulations that have been in place ever since the Magaliesberg was proclaimed a Protected Natural Environment in 1994 (and going back to the original proclamation of the Magaliesberg Natural Area in 1977) also make it clear that hotels are not compatible inside the MPE. (The MPA later learnt that the fine imposed on the developer for building illegally inside the MPE was only R21,000 instead of between half- and one million Rand, which is normally applied to a 24G application for a development of that size.)
The MPA decided to object officially to this approval, and instructed an environmental law firm to assist it in the matter. The details of this process are given in previous Statements issued by the MPA. Suffice it to say that, on 5 February, 2010, eight months after it had lodged its objection, we received notification from the MEC of the Department, dismissing the MPA?s appeal.
In light of the serious risk that the Department?s decision to grant environmental authorisation to the Kgaswane Country Lodge poses to the integrity of the Magaliesberg Protected Environment, since it could serve as a precedent for developers to build illegally and when apprehended to take the Section 24G route, the MPA committee decided to take the MEC?s decision on review. In this we had the support of the Mountain Club of South Africa, the Johannesburg Hiking Club and the Buffelspoort Valley Conservancy, as well as other concerned individuals and organisations. The details of the review, in which advocate Peter Lazarus and Senior Counsel Paul Kennedy argued our case in the Mafikeng High court on 4th August, 2011 (as well as our earlier unsuccessful application to interdict further construction on the lodge, which was heard on 30 September 2010), are given in previous Statements. Unfortunately the judge was very unsympathetic to our cause ? she even questioned why in our pleadings we focused on the environment, but not on the economy or job creation ? and on 10 January, 2012 we received the judgement from the review hearing, dismissing our application, with costs awarded against the MPA. Our subsequent application to the judge for leave to appeal against her judgement was also dismissed, with costs.
Given the importance of this case for the future protection of the Magaliesberg, and for the prospects of success with South Africa?s application to UNESCO for the Greater Magaliesberg Region to be declared a Biosphere, the MPA committee then approached the Supreme Court of Appeal (SCA) in Bloemfontein for leave to appeal the judgements of the Mafeking High Court. Eventually, the MPA?s run of adverse decisions came to an end on 5 July, 2012 when the SCA granted us leave to appeal the judgement against us.
The much-awaited appeal took place in the Supreme Court of Appeal in Bloemfontein on 13 May 2013. The MPA was represented by Advocates Peter Lazarus and Fiona Southwood, with Amanda van der Lith as our attorney. There were two advocates representing the Province and one the developer. The case was presided over by a bench of 5 Judges. They were well prepared and, in contrast to the Mafikeng judge, appeared to have a good understanding and some sympathy towards our case.
Nevertheless, when judgment was received on 31 May 2013, we were very disappointed to learn that the MPA?s Appeal was dismissed, except that the costs order against us was reversed. It is clear the judges considered that because the EMF was only formally gazetted (less than a week) after the MEC had decided to retrospectively grant Section 24G approval for the Kgaswane Country Lodge, the EMF did not apply and that it would have been unfair towards the developer to take it into consideration. (This, despite the fact that the EMF was dated October 2007 and had been used by the Department since that time ? 18 months before the 24G approval for the Lodge ? to guide its decisions.) Some positive aspects do, however emerge:
1. The MPA has not been bankrupted so we can continue in our quest to protect the Magaliesberg.
2. The fact that the completion of Kgaswane Country Lodge was held back by the court case (it has still not opened for business) and the developer has had to pay his own costs, will hopefully deter others from trying the same.
3. The Appeal Court judgment being premised on the fact that the EMF had not yet been gazetted when the MEC granted the Section 24G approval for the Lodge, means that it cannot be used as a precedent for future developments in the MPE.
4. Because the EMF is now firmly in place, it should hopefully be very unlikely that the Department will approve another such development in the MPE.
The MPA is very grateful for the generous support it has received from the legal fraternity in its legal challenge.
* Senior Counsel Paul Kennedy and Advocate Peter Lazarus for representing us at the initial court action on a 50% fee basis
*Advocate Peter Lazarus for generously acting on a pro bono basis for the appeal
* Advocate Fiona Southwood who has been assisting Peter, also on a pro bono basis ? Environmental law firm Cameron Cross for doing the same
* Attorney Amanda van der Lith who took over from Cameron Cross, also on a pro bono basis.
We are also very grateful for the generous donations received from MPA members, the Mountain Club of South Africa and its members, as well as from the Johannesburg Hiking Club, the North West Environmental Forum, the Buffelspoort Valley Conservancy and members of the public.
Paul Fatti
Chairman, Magaliesberg Protection Association
24 June, 2013
