MPA Statement on Kgaswane Lodge, March 2011

This court case has now taken place. Below an update from Paul Fatti:

Dear All

Well, yesterday we at last had our day in court! Kevin Gill and I attended the court case which took place on Thursday, 4th August in the Mafeking High Court, as observers. The case was set down for Friday as well, but it turned out at the last moment that the judge was not available on that day. However, she was willing to stay on for as long as was required and eventually we finished in the late afternoon.

The Judge President for the NW Province, Judge Leeuw, presided over our case and at times she gave our Senior Counsel Paul Kennedy a hard time with her interjections and questions. However, Paul (assisted by Junior Counsel Peter Lazarus) presented our case powerfully and covered both the MPA’s original objection to the granting of a NEMA Section 24G (retrospective) approval for Kgaswane Country Lodge built illegally inside the Magaliesberg Protected Environment (MPE), as well as our review of the MEC’s dismissal of our objection. In addition to a broad coverage of our case, stressing the importance of the Magaliesberg as a unique environment that the MPA is trying to protect for future generations, and the Magaliesberg Biosphere project that is proceeding very well, but crucially depends on the inviolability of the MPE, he focused on the following four grounds for our review:

1. The fact that the EMF for the Magaliesberg Protected Environment, which was developed and approved by the NW Department of Agriculture, Conservation and Environment in 2007 but was only gazetted on 17 March, eight days after the Department had given the Section 24G approval, despite the fact that the EMF specifically identifies a Country Lodge/Hotel as an “incompatible activity” inside the MPE.

2. The Serious and gross errors in the Environmental Impact Analysis (EIA) on which the Section 24G approval relied.

3. The inadequate public consultation that took place when the Section 24G application was being considered. The invitation for comments was very poorly advertised – the MPA was not invited to comment (as happens with other development applications in an around the MPE) and we only saw the notice on the gate of the property (which is set back from the road) after the period for commenting was past. (Nevertheless the MPA did send letters of objection to both the MEC and the environmental consultants.)

4. The Bias that the MEC displayed in favour of the developer during his meeting with the developer and the MPA Chairman (me) in his offices in Mafeking, while he was considering the MPA’s objection.

Advocate Kennedy also argued for the relief that we sought, ranging from the strongest, demolition of the upmarket Lodge and restoration of the environment, to the mildest, referring the decision back to the (new) MEC for re-consideration.

The senior counsel for the state (the developer’s counsel only submitted written evidence) argued strongly against us, and he very much downplayed the importance of the MPE and stuck to the formal position that the EMF had not been gazetted when the Section 24G decision was taken to “rectify” the illegal development. The court proceedings closed after Advocate Kennedy’s brief replies to the defence counsel’s arguments. Judgment was reserved by the judge, and it might take some time before she makes her judgement, as the court papers far exceed 1000 pages!

In the meantime we can only bite our nails.

Regards

Paul