APPEAL BY THE DRAKENSTEIN HERITAGE FOUNDATION (DHF) against the decision of HERITAGE WESTERN CAPE (HWC) TO APPROVE THE REDEVELOPMENT OF CHEVE HOUSE IN PAARL (CHEVE)
This appeal is founded upon the following principles
a) HWC does not have the authority to adjudicate on this application
b) The procedure adopted by HWC contravened the rights of the conservation bodies included in the Act.
c) The heritage decision (qualified in terms of this submission by the fact that the DHF was not granted the opportunity to have sight of the details of the application as it was altered during the process with B.E.L.com) as gleaned from our attendance at the B.E.L.com meeting is not consistent
A) THE AUTHORITYOF HWC:
a) The property in question is registered in the name of the department of education in the Western Cape and the application is from the department of public works of that province.
b) The property has a long history of heritage conservation,
having been originally donated to the Simon van der Stel Paarl
branch by the administrator of the Cape to preserve Mill Street
in conjunction with the widening and moving of the Mill Street
wall. The condition was that it was to be reinstated to the
façade as represented in numerous late 19th cen. views of Paarl
c) The donation was motivated by the research which proved that the basis of this property was the original family house (stamplaas)
of both the Hugo and Blignault families in South Africa, as well
as due to the excellent photographic record available .
d) The property had been expropriated to form part of the Paarl Gymnasium Primary School sportsground. The school objected to the grant as did the previous owners (Van der Merwe family).
e) At the suggestion of the administrator a trust was formed by
the parties with the objective of restoring the ground plan
and façade. The parties agreed that after completion
(and proclamation by NMC) the full control of the trust would
be handed to the school.
f) The DHF paid for the survey and subdivision of the property as per the agreement.
g) The school occupied the property for a number of years as an aftercare facility and paid rental to the DHF.
h) With the impending change in government in 1994 the DHF allowed the school to take transfer of the property in the name of the governing body. The school continued to pay rental as per the agreement of lease (the monies were retained for the restoration fund by the DHF).
h) After a long struggle to raise their portion of the required funds, the school requested that the DHF release them from their responsibility and proceed with the restoration as per the agreement.
i) in order to proceed with a proposed private /public partnership the DHF sought assurances from the province that we could go ahead.
j) The department refused this and eventually brought the current applicants to us and an agreement was reached that they would restore the building in terms of the permit obtained by the DHF (which had been acted upon).
THE REST IS INCLUDED IN THE CURRENT PERMIT APPLICATION, WHICH THE DHF OPPOSES.
THE AUTHORITY OF HWC TO GRANT A PERMIT / HEAR THE MATTER IS CONTESTED
in terms of the act
1) the province is included under the definition as being
part of the state (xiii)
2) any action in terms of state assets must be ‘by agreement
with the authority or body concerned in the management of
any heritage resource which is owned or controlled by
the state’ (25(2)f )
3) section 9 clearly sets out the procedure to be followed when
any action to a state asset is contemplated.
4) section 9 clearly sets out the responsibilities to report
the state of, the protection of and the information required to
be submitted when state assets are concerned and requires
SARAH to play a more active role to ensure that the state
does not take any action that adversely affects a heritage
resource. These are not powers available to HWC.
5) section 9 sets out the action and pre-application reports that
are required to be submitted to and responded to by SAHRA
6) the purpose of the act is to promote good governance. Section 5 includes the obligation to give further content to the rights set out in the constitution.
In this case the province, through their control, seek to be applicants,
assessors, judges and appeal judges in the matter. This is contrary to the constitution principles as well as the principles of natural justice.
The situation is as set out above legislated for in the act, but despite our submission dismissed by BEL com.