Heritage Cases

The Socio-economic Impact Assessment (SEIA) conducted by the Department of Public Works and Infrastructure (DPWI) for the Expropriation Bill, 2019 [the Bill], was not made available to the public, and obtained through a Promotion of Access to Information Act, No. 2 of 2000 (PAIA 2000), request by Sakeliga (2021a): “Sakeliga condemns both the apparent withholding of the document from public consideration as well as glaring deficiencies regarding its content.”  Sakeliga (2021a) focussed initial attention, amongst others, on stakeholder concerns, stating that: “The SEIA is supportive of confiscation of property without compensation and reveals various institutions’ purported support for the proposal. In fact, the study claims there is unanimous support for the Bill among the entities it consulted.” Sakeliga questioned both the accuracy of stakeholders’ comments contained in the SEIA, with the aim of verifying these, as well as alleged preferential stakeholder consultation, asking why some stakeholders were consulted and others not. Stakeholder concerns raised, including anticipated economic decline, not excluding -catastrophe, and the probability of further ‘unintended consequences’ were not included in the SEIA (DPWI 2019), with commentary included reflective of Government Departments and civil groups closely aligned with the African National Congress’ (ANC), or ruling party’s, ideological convictions (Sakeliga 2021a, 2021b); Sakeliga (2021a) concluded that the SEIA - “Amounts to nothing more than an extended opinion article… there are no real facts, data, or analysis to consider,” and further thereto that it - “Reads like a political justification for expropriation policy and does not really account for the cost of the proposal.” Whereupon Sakeliga (2021b) requested the DPWI to withdraw the SEIA with recommendations, including that a recommissioned, rigorous SEIA be conducted by independent specialists.  As legal extension to the Bill the Constitution Eighteenth Amendment Bill, 2019, was published. Following publication of the 2019 Constitutional Amendment an unpublished (leaked) copy of the Constitution Eighteenth Amendment Bill, 2021, made it into the public arena (Morning Shot 2021). Commentary by stakeholders so referred to by Sakeliga (2021a, 2021b) is outlined in the SEIA (DPWI 2019), Part 2.3 – Consultations. The said Part of the SEIA also containing commentary by Government Departments, and, most importantly for purposes of this report, the comment issued by the Minister Nathi Mthethwa, Department of Sport, Arts and Culture (DSAC) as follows: a) Q – “What do they see as the main benefits, Implementation / Compliance costs and risks?” A (DSAC) – “The proposal will streamline the procedure for expropriation. Gazette notices and property suitability investigations. Negotiations.” b) Q – “Do they support or oppose the proposal?” A (DSAC) – “They support the proposal.” c) Q – “What amendments do they propose?” A (DSAC) – “None.” d) Q – “Have these amendments been incorporated in your proposal? If yes, under which Section?” A (DSAC) – “N/A.” Commentary by the Minister Mthethwa, DSAC, was so issued with direct reference to the (DPWI 2019): o National Heritage Resources Act, No. 25 of 1999 (NHRA 1999); and the o World Heritage Convention Act, No. 49 of 1999 (WHCA 1999). (With the signed SEIA indicating no area of conflict with either the NHRA 1999 or the WHCA 1999.) In summary, the SEIA (DPWI 2019) argues the Bill as aiming to facilitate access to land on a non-discriminatory basis related to gender, sex, age, disability, religious belief and political affiliation, with the potential to reduce unemployment, poverty, homelessness, criminality and morbidity, whilst promoting entrepreneurship, food security and productivity of the nation in general. The aim of the Bill is so described as in accord with Government’s core national priorities of: i) Social cohesion and security; ii) Economic inclusion; iii) Economic growth; and iv) Environmental sustainability. The Bill inevitably seeks to change behaviour to achieve its desired purpose; with the primary behaviour identified to be changed being that of private property owners, and the desired change the Bill intends to effect being a uniform expropriation framework for organs of State, including on national, provincial and local levels of government, to facilitate the acquisition of privately owned property in a cost effective manner, with compensation for expropriation in certain cases determined at nil, in order to enable the State to meet its socio-economic objectives. The SEIA furthermore claims the Bill’s stance on expropriation in affirmation of the ‘Rule of Law’ principle; - that the Bill will decrease incoherent and burdensome legislative regimes, whilst obviating the possibility of irrational expropriation through requisite consultation with affected parties, and further thereto that sufficient checks and balances in both government policy and different legislations are in place to keep such issues in check. Cost analysis of the Bill is centred on cost to the State; - including, amongst others, the management of an expropriation register, transfer-, notice- and conveyancing costs, property investigations and including the payment of compensation. Part 2.9 of the SEIA deals with risk management of the Bill, and listing, amongst others, disputes between Government Departments and -agencies as a possible risk that may arise due to competing / conflicting interests. It is here argued that the Bill’s SEIA (DPWI 2019) is insufficient for purposes of Social Impact Assessment (SIA), and specifically so with reference to the NHRA 1999, Section 38 – Heritage Resources Management; both the development extent (study site) and reasonably inferred impact on protected heritage resources call for caution, with the proposed development, the Bill (including the Constitutional Amendments), described as a development with a potential high impact on heritage. From a heritage, and specifically a Socio-cultural Impact Assessment (SCIA) point of view, it is furthermore argued that the proposed development, the Bill and associated SEIA (DPWI 2019), represents, as it stands, a partially transparent formal / official forced acculturation process: Where ‘partially transparent’ refers to nondisclosure of the Bill’s SEIA (DPWI 2019), - only recently, and very late in the process, partly remedied through the Sakeliga’s SEIA PAIA 2000 request, the still pending Monitoring and Evaluation- and Implementation Plans, and the Medium Term Expenditure Framework (MTEF), the unpublished (leaked) copy of the Constitution Eighteenth Amendment Bill, 2021, and the absence of a Heritage Impact Assessment (HIA); ‘Formal / official’ refers to the planned acculturation program or -development being proposed legislation, - the Bill (including the Constitutional Amendments), intended for implementation. ‘Forced’ is to be understood within the framework of partial transparency, and the recognised Government intention to change behaviour, but through assessment scale and type (SEIA) not proportionate to the scale of intended impact nor the suitability of assessment type (HIA / SCIA) provided for by law (NHRA 1999), - and hence with ‘unintended consequences’ on heritage / culture an expected outcome of the proposal; consequences which will be non-mitigatable and non-manageable, since being non-identified and thus not provided for within the current framework of the Bill and SEIA (DPWI 2019), and which inevitably will result in ‘forced’ (and reasonably argued non-transparent but ‘intended’) consequences. The force applied by Government can be described as diplomatic, - comprising consultation and associated legislative changes and amendments, as opposed to aggressive force. However, the history of opposition to the proposed rule, - the withdrawal in 2008 of a 2007 draft Policy (B16-2008), the 2018 rejection by Parliament of a 2013 revised Draft Bill (B4D-2015), and with opposition ongoing, spells of forced opposition, - with the force so used by opposition to the Bill similarly described as diplomatic in nature. The process of cultural change proposed comprises a standard process of ‘acculturation,’ where cultural exchange is intended to occur from the dominant or ‘donor’ culture to the ‘recipient’ culture: Within a composite (South African) cultural context the ‘donor’ culture is denoted by Government, democratically so elected by the majority of the people, with the ‘recipient’ culture represented by the primary target audience, private property owners, to bring the desired program of cultural exchange, a uniform expropriation framework to facilitate the acquisition of privately owned property, for purposes of public interest, in a cost effective manner about (DPWI 2019). Not only do the SEIA (DPWI 2019) exclude cultural assessment of the target or recipient culture, private property owners (primary recipient culture), but also of the ‘beneficiary’ culture (secondary recipient culture); - in neither case do the assessment (SEIA) aim to, or holistically consider impact on the 16 basic universal aspects of culture, associated social units underlying the -aspects, or linkages and interlinkages connecting these, and extended to temporal frameworks associated with cultural exchange programs, and with transfer (or re-invention) of the integrated cultural complex between the primary and secondary recipient cultures inferred, but not assessed. The SEIA (DPWI 2019) is thus, with direct reference to holistic cultural consideration, described as contrary to the risk averse principle of impact assessment and will reasonably speaking result in ‘unintended consequences’, with the unintended consequences preliminary described as imbalance to the integrated cultural complex, - where imbalance can refer to disturbance, maladaptation / -integration, fracturing, splitting, disintegration and the like, of both affected recipient (primary and secondary) cultures. It is furthermore necessary to make brief mention of the broader context or ‘environment’ within which SCIA is vested, and where ‘environment’ is defined as the natural environment, the cultural environment and the socio-economic relationship between the two, - albeit designating a commonality between SEIA and SCIA inquiry, method of inquiry vary because the aim of the assessment, socio-economic vs. socio-cultural, differs. From a SCIA point of view, considering the scale and potential impact of the proposed development, - the Bill (and Constitutional Amendments), any assumption of a static or near static cultural- or natural environment denotes potential risk, with the projected dynamism of the environments central in determining socio-economic impact, or change in the socio-economic relationship between these environments. o Recommendations:  It is recommended that DSAC makes available information, in terms of the NHRA 1999, Sections 51(5)(a), 51 (5)(b) and 51(5)(g), regarding signature to the SEIA (DPWI 2019) and approval thereof as per Table 1. It is recommended that the Minister Nathi Mthethwa, Department of Sport, Arts and Culture (DSAC) makes available information, in terms of the NHRA 1999, Sections 51(5)(a), 51 (5)(b) and 51(5)(g), regarding signature to the SEIA (DPWI 2019) and approval thereof as per Table 1. The presentation of information should include: o A detailed explanation of DSAC commentary as contained in the SEIA (DPWI 2019), Part 2.3 – Consultations (see Table 1), and with direct reference to the NHRA 1999, not necessarily excluding the WHCA 1999 (as per Part 2.1 of the SEIA); o Names, contact particulars and details of any organizations / parties / movements / individuals that have counselled the accused prior to or during consideration of the SEIA (DPWI 2019); and o Names, contact particulars and details of any organizations / parties / movements / individuals that was counselled by the accused associated with the DSAC approval of, and comment to the SEIA (DPWI 2019).  It is recommended that SAHRA makes available the DPWI notification of the ‘Planned Development’ (the Bill), and the SAHRA response thereto, and / or other information that may so apply, with reference to the NHRA 1999, Sections 9(3)(f), 9(4), 9(5) and Section 38. It is recommended that SAHRA makes available the DPWI notification of the ‘Planned Development’ (the Bill), with DPWI as implementing agent / sponsoring Department, and the SAHRA response thereto, and / or other information that may so apply, with reference to the NHRA 1999, Sections 9(3)(f), 9(4), 9(5) and Section 38. Should no such Notification of Intent to Develop (NID) have been received by SAHRA it is recommended that SAHRA requests the Minister Patricia de Lille, Department of Public Works and Infrastructure (DPWI), to make available information in terms of the NHRA 1999, Sections 51(5)(a), 51 (5)(b) and 51(5)(g) regarding the non-submission of a NID.  It is recommended that SAHRA requests a Heritage Impact Assessment (HIA) to be conducted by DPWI as implementing agent / sponsoring Department, in terms of the NHRA 1999, Section 38, for the Bill. 1. It is recommended that the Minister de Lille, DPWI, withdraws, with immediate effect, the SEIA (DPWI 2019) for the Bill (and implying requisite temporary repealment of the Bill), based on: o Non-transparency of the SEIA for public commenting purposes, and the recent making available thereof through the PAIA 2000 Sakeliga (2021) request; and o The identified need for a Heritage Impact Assessment (HIA) with the Bill argued as a ‘Planned development’ subject to the NHRA 1999, Section 38, HIA process, with reference to both development extent (study site) and reasonably inferred impact on protected heritage resources, and with the Bill described as a development with a potential high impact on heritage. 2. It is recommended that SAHRA requests a HIA to be conducted by DPWI as implementing agent / sponsoring Department, and as compulsory heritage compliance requirement to the ‘Planned Development’, the Bill. o The requested HIA is argued as a stand-alone HIA, to be called for in terms of the National Heritage Resources Act, No. 25 of 1999 (HRA 1999), Section 38 – Heritage Resources Management. o With reference to the NHRA 1999, Section 38(1), it is argued that the Bill will: 1) Impact (have effect) on a surface area, the extent of which will be the geographical extent of South Africa [with reference to the NHRA 1999, Section 38(1)(a) – 38(1)(d)]; and 2) Where reasonably inferred / known impact on heritage resources, as defined and protected by the NHRA 1999 will occur, with inferred resource impact preliminary summarized as - “The legislation [NHRA 1999] requires that all heritage resources, that is, all places or objects of aesthetic, architectural, historical, scientific, social, spiritual, linguistic or technological value or significance are protected. Thus any assessment should make provision for the protection of ALL these heritage components, including archaeology, shipwrecks, battlefields, graves, and structures over 60 years, living heritage and the collection of oral histories, historical settlements, landscapes, geological sites, palaeontological sites and objects” (SAHRA 2007); thus notwithstanding the NHRA 1999, Section 38(1)(e) necessity for a category of development provided for in Regulations by SAHRA or a PHRA, but in accordance with resources directly protected by the NHRA 1999, and in order to ensure protection of the national estate (NHRA 1999, Section 3) in accordance with the general principles for heritage resources management, as per the NHRA 1999, Section 5, in general, and with specific reference to the NHRA 1999, Section 5(7)(a) – 5(7)(f). o It is recommended that the HIA: -  Include at minimum a comprehensive Desktop study; and  The Phase 1 component of the HIA be focussed on, though not limited to, the NHRA 1999, Section 38(3): (d) An evaluation of the impact of the development on heritage resources relative to the sustainable social and economic benefits to be derived from the development; (e) The results of consultation with communities affected by the proposed development and other interested parties regarding the impact of the development on heritage resources. o The purpose of the HIA is to inform: - 1) The HIA provides heritage specific information on a proposed development to SAHRA, mandatory responsible for the implementation of the NHRA 1999, and as Competent Authority with reference to Section 38 – Heritage Resources Management, for purposes of responsible decision making; and 2) The HIA should be made available to Interested & Affected Parties (I&AP) during the 45 day commenting period (re-submission of the Bill), and including during the full Public Participation Process (PPP) of the Bill, for purposes of public evaluation and comment. NOTE 1: SAHRA retains the right to diverge the HIA to PHRA level, be it to provincial or smaller geographic units, such as district- or local municipal level, or any other defined cultural or heritage units for HIA management purposes. NOTE 2: It is recommended that DPWI makes available to SAHRA the reasons why the SEIA (2019) was not published for public comment as per the SEIAS Guidelines (DPWI 2015), and for this information to be made available, upon request, for purposes of the HIA (and to ArchaeoMaps with direct reference to submission of this report). NOTE 3: It is recommended that DPWI makes available to SAHRA the Monitoring and Evaluation Plan for the draft Bill as per the SEIA (DPWI 2019), Part 2.10.e), and for the Monitoring and Evaluation Plan to be made available, upon request, for purposes of the HIA (and to ArchaeoMaps with direct reference to submission of this report). NOTE 4: It is recommended that DPWI makes available to SAHRA the Implementation Plan for the draft Bill as per the SEIA (DPWI 2019), Part 2.10.f), and for the Implementation Plan to be made available, upon request, for purposes of the HIA (and to ArchaeoMaps with direct reference to submission of this report). NOTE 5: It is recommended that DPWI / DSAC makes available to SAHRA particulars of the areas of linkages: Sections 46 and 30, with reference to the NHRA 1999 and the WHCA 1999 respectively, as per Part 2.1 of the SEIA (DPWI 2019), and for this information to be made available, upon request, for purposes of the HIA (and to ArchaeoMaps with direct reference to submission of this report). NOTE 6: It is recommended that DPWI makes available to SAHRA the Medium Term Expenditure Framework (MTEF) as per Part 2.7.a) of the SEIA (DPWI 2019), and for this information to be made available, upon request, for purposes of the HIA (and to ArchaeoMaps with direct reference to submission of this report). NOTE 7: It is recommended that ‘Specialist Declarations of Interest’ be considered by SEIAS to avoid, and provide a platform for investigation, in the event of political or party-political bias concerns being raised, - not limited to SEIA assessors, but extended at minimum to Government Department officials signing off on a SEIA. NOTE 8: It is requested that SAHRA makes available for purposes of HIA, upon request, the Cultural Heritage / Conservation Management Plan (CMP) of DSAC as per the Regulations (2017) in terms of the NHRA 1999, Section 9, for cultural heritage resources, the maintenance and conservation of which is the responsibility of State Departments and supported bodies, and thus so applicable to DSAC. Should no such DSAC CMP exist, is it requested that SAHRA instructs the DSAC to commission the relevant CMP, - and for the CMP to be made available, timeously and upon request, for HIA purposes. NOTE 9: It is similarly requested that SAHRA makes available for purposes of HIA, upon request, the Cultural Heritage / Conservation Management Plan (CMP) of DPWI as per the Regulations (2017) in terms of the NHRA 1999, Section 9, for cultural heritage resources, the maintenance and conservation of which is the responsibility of State Departments and supported bodies, and thus so applicable to DPWI. Should no such DPWI CMP exist, is it requested that SAHRA instructs the DPWI to commission the relevant CMP, - and for the CMP to be made available, timeously and upon request, for HIA purposes. The deadline for Parliament to report back to the House on the Bill is 30 August 2021 (Merten 2021). It is requested that SAHRA address heritage compliance concerns raised in this report with immediate effect, and prior to said date, 30 August 2021. This report is made to SAHRA, mandatory responsible for the implementation of the NHRA 1999, directly on SAHRIS, and without any contact with the accused’s office.