COMMENTS BY THE HERITAGE ASSOCIATION OF SOUTH AFRICA ON THE DRAFT DOCUMENT FOR A WESTERN CAPE HERITAGE ACT

From HASA

The heritage association of South Africa have  received comments(which is attached) on the  draft document for a Western Cape Heritage Act.   Our members are of the opinion that it is dangerous to amend, or omit, provisions of a workable agreement, without excellent reason.  We therefore  question the removal of definitions and  ask why and with what purpose these definitions are being omitted.

 

We seek the assurance  that  the definitions  that   provided for the repair, restoration and rehabilitation of heritage assets  as defined in the Oxford dictionary will not require a permit or other heritage permission. We believe that this is best achieved. by providing clear  definitions  in the act so that all owners of historic properties .

We would appreciate receiving your assurances before the round of consultations begins

 

From  Jacques Stoltz chairperson

 

 

COMMENTS BY THE HERITAGE ASSOCIATION OF SOUTH AFRICA

ON THE DRAFT DOCUMENT FOR A WESTERN CAPE HERITAGE ACT

 

The Draft Document refers to and must be read in conjunction with the National Heritage Resources Act of 1999 (NHRA).

There are however some subtle adjustments in the definitions.

For example the definition of “alter” is the same as in the NHRA while other definitions such as “management” and “improvement” are omitted from the Draft Document.

The reason for this should be made clear because they seem to add benefit to the conservation of heritage, and affect how heritage resources are managed. 

All departures from the NHRA should be explained.

In omitting the definitions from the Draft Document, the owners of historic buildings could find it very onerous and more expensive to carry out repairs. HWC have started insisting that repair work be carried out only under permit.  I contend that in the main NHRA “repairs” are excluded from the definition of “alter” and a permit is not required (and this obviates the need for the heritage report, the comments by conservation bodies, the fees for the application and the three months delay).

I motivate this as follows:

HWC operates under delegated authority from SAHRA to “manage” heritage resources in the Western Cape. SAHRA cannot delegate powers that they do not have and their powers are limited to those in the NHRA.

The definition of “management” in the NHRA includes “conservation”,improvement” and “presentation” of a place protected in terms of this act, while under the definition of “improve” are included “repair”, “restore” and “rehabilitation” of a place protected in terms of the NHRA. All these definitions are omitted from the Draft Document presented for comment.

Quoting from Willies, the principles of South African Law, it is accepted that recourse to authoritative dictionaries is the accepted principle to assist in defining the true English meaning of a word.

In the Oxford dictionary:

To repair is the act of restoring to a sound condition; or Repair “to renew (renovate something or part) to restore to a sound condition by making up for in some way for previous waste, loss decay or exhaustion”.

Restore (a composite thing, structure etc.) is defined as -”by renewal or replacement of decayed or damaged parts or by fixing what has given way“ – “to mend”.

Rehabilitate is defined as –to restore to a previous condition; set up again in proper condition”.

Alter is defined in the same source as -”to make a thing otherwise or different”.

It is an accepted principle that the express inclusion of a situation or word in one definition results in the exclusion of the same word in another if not defined in that situation

Section 34 of the NHRA states that “no person may alter or demolish without a permit.”

If “Improve” is defined as “repair”, “restore” and “rehabilitation” and “improve” is not included under alter, then “repair”, “restore” and “rehabilitation” do not apply to alter and therefore a permit is not required.

It seems that the provisions of the Draft Document will bring under the control of HWC any action required for a building over 60 years and require the owners to obtain a permit at great cost and with extensive time delays.

The net result will be further burden on the owners of historic properties, both in terms of costs (including the application fees and experts reports) as well as time, and will ultimately lead to the loss of our heritage resources and a rise in disregard of the law which is already prevalent in all the outlying districts under the present laws.

HWC can in terms of section 57 of the NHRA enact a provincial heritage act (which is what this document is) and that this enactment will take precedence over the equivalent provisions of the NHRA in so far as they relate to provincial areas of competence.

We question the legal power of HWC to omit definitions in the Draft Act that will lead to a situation inconsistent with the Section 6 of the NHRA.

The reason for this should be made clear because they seem to add benefit to the conservation of heritage, and affect how heritage resources are managed. 

 

HERITAGE ASSOCIATION OF SOUTH AFRICA

May 2018

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