Why Anton Bredell should go
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Robert Verdonk waits more than 7 years and stil can’t develop;
some DA donors wait less than 7 months.
Is there something wrong here!?
Oudtshoorn. 25 September 2012. 06h00. The story starts on 18 July 2005 – seven years ago – when Plett developer Robert Verdonk applied for ECA (Environment Conservation Act 73 of 1989) clearance to develop a much needed retirement village on a portion of the farm Ganse Vallei some 4km north-east of the Plettenberg Bay central business district and 2km from the Market Square Shopping centre, on land which he owns and where he lives.
In a detailed memorandum dated 13 March 2009 two senior functionaries of the Western Cape Department of Local Government, Environmental Affairs, and Development Planning, advised the then minister, Pierre Uys, that the application should be refused, notwithstanding the Bitou Municipality’s supported of the project. On 20 April 2009 Uys nonetheless approved the application “for the purpose of establishing a retirement village” on the property.
However, on 30 November 2009 (which was about 7 months after Uys had approved the structure plan amendment) the new minister, Anton Bredell, refused the application.
I was personally present at a meeting on 5 June 2009, some two months after he took office, where Bredell said that he would probably spend his first term in court as virtually every development approved by his predecessor was suspect. Verdonk, on the other hand, recalls a meeting where Bredell said that he had the greatest respect for his predecessor and that he would probably not overturn any of his decisions… and, if any person had a problem it was up to them to approach the High Court.
But around the same period a senior official in the Minister’s Department, Mr Chris Rabie, during a meeting of the SC Forum for Development Management held on 7 August 2009, stated that the department was concerned that although the provincial government had approved the Western Cape PSDF, the facts were not always properly reflected in decision-making at provincial level. Rabie stated further that it had accordingly been decided that previous planning approvals which in the department’s view were non-compliant with the broader policy framework would not be set aside (allegedly due to the legal implications thereof) but that the provincial government would use future applications required in respect of a particular development (such as an environmental authorisation or a rezoning as the case might be) to refuse those applications which the department considered should never have received development approval in the first place. Rabie concluded his remarks with the statement that these developments (or developers) would thus still be “snookered”. These allegations are not denied by the Minister, as is evident from court papers in the subsequent High Court verdict of 16 May 2012 – see below.
Verdonk feels that this decision could not have been made without the approval of Bredell and that, as such, the negative decision on both the environmental ROD and the appeal had already been made before the documentation had been scrutinized.
On 18 December 2009 Verdonk appealed against the Western Cape Provincial Government Environmental Affairs Development Planning (Dead-P) decision to refuse the ROD .
On 28 April 2010 Bredell dismissed Verdonk’s appeal and after numerous requests and demands to both Bredell and premier Zille to provide reasons for the dismissal decision, Bredell complied 4 months after the decision, on 26 August, even though the Nema regulations demanded that an appellant be provided with written reasons within 10 days of a decision.
Verdonk then applied to the High Court to impugn Bredell’s decision, arguing that the Minister acted unlawfully in dismissing the appeal.
In her verdict of 16 May 2012, Madam Justice Judith Cloete ruled, “In my view, the Minister’s contentions do not address the central question which requires to be answered, namely whether in the particular circumstances of this matter the applicant’s suspicion of bias is reasonably apprehended.”
Cloete continued, “Can it be said that in these circumstances the applicant could be assured that the Minister’s decision was the result of ‘more careful scrutiny, prolonged debate and sober reflection’? In my view the answer must be no… I am satisfied that the applicant’s suspicion of bias on the part of the Minister is reasonably apprehended.”
Bredell’s dismissal of Verdonk’s appeal was set aside with costs.
In finding against Bredell, the court veritably criminated him, as is evident from Verdonk’s acusals of the illegality of the decision to dismiss the 18 December 2009 appeal:
Bredell failed to consider relevant considerations and took irrelevant considerations into account; Bredell’s decision was based upon an improper purpose or motive, was irrational, arbitrary and capricious, was taken pursuant to an unfair procedure and was so unreasonable that no reasonable person could have taken it.
The court found Bredell, in coming to a decision effecting investment both foreign and local of millions; and shaping employment and economic growth, to have considered irrelevant facts and to have failed to consider relevant facts; to have displayed improper purpose or motive, was irrational, arbitrary and capricious, was unfair!
This blazing ineptitude must surely constitute management repugnance and is indicative of a man completely out of his depth and completely unable to execute his duties and discharge his noblesse oblige.
There remains also a third accusal: That Bredell intruded into a local government competence.
The court found that “if the Minister was not empowered to give consideration to the spatial context of the applicant’s land in relation to environmental factors in reaching his decision, it is difficult to understand how he was supposed to have exercised the very power conferred upon him in terms of the ECA. Of course that he chose to disregard municipal planning considerations in reaching his decision is a separate issue with which I have already dealt. The fact of the matter is that having regard to considerations which the Municipality could or should take into account when deciding on municipal planning issues, does not preclude another sphere of government (in casu the Minister) from taking into account the very same considerations in the exercise of its functions.”
It is remarkable that Bredell continues steadfastly to refuse to intervene in Oudtshoorn in the face of overwhelming corruption, mismanagement, and downright theft; in the face of political hooliganism and administrative thuggery, when even a High Court judgement apparently gives him some leeway to “intrude into a local government competence”.
I am not for a moment arguing that this judicial utterance is carte blanche for Bredell to intervene into “a local government competence”. I am, however, suggesting that in the face of flagrant mismanagement the minister, to give effect to his “oversight role” should energetically explore mechanisms to protect residents and ratepayers against the effects of administrative and political vandalism!
The question flowing from this unhappy happening is a thunderclap in the face of transparent and clean government of an “Open Opportunity Society for All*”:
Why is Robert Verdonk still obliged to fight for his right to do business seven years after properly applying to do so; and three and a half years after the Amendment of the Regional Guide Plan approval was first granted; and five months after beating Bredell in the High Court? Bredell is appealing and already demanded an extension to file papers – delaying tactics seen over and over again in this case. Yet another applicant, Proud Heritage Properties, had its site development plan approved, at record speed, by both DEAD-P and Bitou Municipality according to an article in the CXPress of 11 July 2012:
PLETT TO GET MUCH-NEEDED NEW RETIREMENT VILLAGE.
The development is the initiative of a group of prominent retired local residents.
The Justice and Equality Front (JEF) unearthed some rather disturbing information about this development:
Three of the directors of Proud Heritage are very familiar names in DA circles and are major donors to the party. And all three have ties to the Plettenberg Bay Community Environmental Forum (PBCEF): Mr. Hilton Davies; Mr. Neville Pietersen; and Mr. Rudi Martin.
Information made available ito PAIA indicates that Martin had resigned and that the other (active) directors were Mr. Mike Bridgeford, Mr. Basil Smith and Mr. Jock Worthing, also, directly or indirectly, connected to PBCEF.
PBCEF, through its affiliates, have been the only objectors to Verdonk’s application. All neighbours agreed in writing in 2005 and, after the Regional Guide Plan was approved a legal advertisement for the Rezoning & Sub Division in 2009 resulted in no objections at all.
So involved was PBCEF that even the “Approval of the Amendment” to the EA was copied to Mrs. D. Grant of Grant Johnston Associates, a firm with established ties to PBCEF.
On 9 May 2012, the Board of Directors of Proud Heritage received a non-substantive amendment from DEAD-P to an EA dated 9 June 2008, for the upgrade of Keurbooms Hotel and Chalets comprising the the construction of 64 resort units. It was stated that the environment and the rights and interests of other parties were not likely to be adversely affected by this decision to amend the EA.
As the article in the CXPress states that the “resort” will comprise of 120 sectional units and 40 health and frail care suites/units, the development appears to have suddenly doubled in size, without even a “legal advertisement” inviting response, as it is deemed non-substantive amendment to the previous EA.
Even more interesting is a letter from DEAD-P dated 14 May 2012, relating to the same application. In this letter, signed 5 days after the amended ROD was approved by the Director, Mr. Ayub Mohamed, the same department informs the town planner, Ms. Wendy Floyd:
Refer to your letter W047212 (304/3) dated 28 October 2011.
Kindly note that this office concurs with the recommendations of Bitou Municipality that this application be referred back to the applicant.
The applicant is requested to withdraw the above application and submit a new application for the amendment of Condition 2.1 together with a revised site development plan.
The applicant is further requested to submit an application in terms of the National Environmental Management Act (NEMA), 1998 (Act 107 of 1998), to this Department to amend the 2008 site development plan.
This letter clearly indicates that DEAD-P agreed with the recommendations of the Bitou Municipality’s then head of planning, Mr. L. Gericke, that the application was flawed. Yet the application was miraculously approved after Gericke had “resigned” his position.
Did Bitou Municipality withdraw its earlier recommendations to DEAD-P? Even though DEAD-P confirmed in writing that it “concurred” with the recommendations?
And how is it possible that the Director of Land Use Management, Mr. AYUB Mohamed, came to sign the amended environmental authorization 5 days earlier!?
OO has learned that the PBCEF, through is affiliate the KPOA, “objected” to a planning application for a retirement village on land bordering the Keurboom’s Hotel several years ago. That application was subsequently “refused” by DEAD-P. One would have thought that the “Reasons given for that Objection by the PBCEF” would also apply to the “Tsokwane Retirement Resort” next door.
Two of the many reasons given by the department to the town planner Ms Wendy Floyd in a letter dated 12 October 2009 were:
1. With the history of flooding incidents in this area, there should be a responsibility in the authorities not to locate vulnerable members of the community close to such areas and;
2. Retirement Village does not constitute a resort-type development.
“Resort”, according to the Oxford English Dictionary means “a place visited for holidays or recreation”; not for permanent occupation like a retirement village that probably requires an alternative zoning certificate.
The Keurbooms Property Owners Association, affiliated with the PBCEF and of which Bridgeford is the vice chair and Worthing is a member, commented on 29 November 2009, before the current directors became involved, and relating to the same application and property, that no approval was granted for the use of the 64 chalets which are now designed as 4 bedroom units to be used or sold as permanent residences. This would necessitate an application for a change of the current Resort II zoning.
JEF concludes that the only logical determination from the facts is that if one bet money on the right horse before 18 May 2011, one is definitely in the pound seats today!
Perhaps the comment, on OO, by Rikus Truter, Verdonk’s attorney, best summarises the Anton Bredell ministry:
It seems that the officials of the Department of Environmental Affairs and Development Planning managed to isolate Anton Bredell from his constituents. I was present at a meeting where he was invited by the Chair and ad hoc committee of the Plett Business Chamber to meet with Plett business and to establish through communication with the Chamber the views of the business people of Plett. Although it was promised the meeting never materialized. We later learned that he uses the excuse that due to the fact that he is the appeal authority he should not attend such meetings. We however managed to meet with any other Minister whenever necessarry.
Before the Provincial elections Ministers Grant and Winde promised a handful of businessmen that the DA would expedite environmental and planning decisions by the Department of Environmental Affairs and Dev Planning should the DA took power. They were aware of the unhappiness of developers and professionals with respect to unnecessarry delays caused by the officials of the Department. Furthermore they were promised absolute transparency at the same meeting. Again Donald Grant and Allan Winde did not dissappoint me in their respective Departments. The same could not be said about Minister Bredell. One simple example is when an application (one of those that was dragging on during ANC rule and “should not take longer that four months”) was awaiting a decision by the officials in the George office of the above mentioned Department. The law required action by the department within a stipulated period of time and if an extension is required by the officials they should approach the Minister (Bredell) for such an extension. When the department did once again not took the necessary action within the time allowed, I enquired whether and when such an extension was requested from the minister. Anton Bredell’s response was simply that they did ask for an extension but if I want any more information, like when it was requested, I should bring an application in terms of PAIA. How is that for transparency if taken into consideration that an official in the George office warned that nothing will be done on the file during the Paia application process and thus a further delay? What did Bredell do to this official and the official who stated that with Bredell signing the WCPSDF the department will now “snooker” the Developers? Just for interest sake, the final decision of the development that would have been expedited is still outstanding many years later.
I successfully represented Robert Verdonk in the High Court action against Bredell and Judge Cloete find that the department’s decision should be set aside for various reasons. A particular official in the department was exposed for the snooker event and later that official was involved in advising Bitou officials that the zoning of one of my properties, for which I had a zoning certificate, should be withdrawn. I had to take the matter to the High Court. It was settled and R150 000 of legal expenses later I have my zoning for the property again. The question is, why was it necessary to spend legal costs of R150 000 on something I had, just to get it back again?
In the property development industry it is well known that time is the difference between the success or failure of a development and development is needed to stimulate the economy. The good days of many developments went by due to excessive the time delays of the department and lots of money that could flow into our town never did with the result that no jobs were created and the Bitou people are severely suffering.
You will have to decide for yourself if actions like the above have a negative effect on our economy. I do not think a specific political party should be blamed for it as the same officials caused the damage under more than one political rule. What happens to those officials is however the responsibility of the Political party.
Verdonk tells OO that he has written about this outrage to the Bitou constituency head, Donald Grant, and, when the constituency head did not respond, he forwarded the papers to premier Helen Zille, who can therefore no longer claim that she is not aware of the situation.
A single question remains: Why is Anton Bredell still the minister of local government, environmental affairs, and development planning? And why is he allowed to waste tax payer’s money on expensive appeals, while mostly refusing to fight municipal mismanagement in court?
A long time ago, in a ministry far, far away… there’s a Dark Side.
Next installments of this drama should provides answers to the many questions OO readers will no doubt harbour.
* This formed the basis of the philosophy underlying the DA’s 2009 Election Manifesto, which seeks to build a society by linking outcomes to “opportunity, effort and ability”:
In such a society, everybody has the opportunities and the space to shape their own lives, improve their skills and follow their dreams. The government’s key role is to expand and promote equal opportunities for all. People are not held back by arbitrary criteria such as gender, religion, or colour, or the prejudice of those in power. In the open, opportunity society, outcomes are linked to opportunity, effort and ability, not special favours dispensed by a ruling clique in the ruling party.