SA FARMER CRIES FOUL

Abion Nkosi al­leges that the gov­ern­ment sys­tems meant to pro­tect his rights are be­ing abused by his neigh­bour and the Gaut­eng depart­ment of agri­cul­ture to hin­der his farm­ing dream

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An as­pir­ing farmer is ac­cus­ing the Gaut­eng agri­cul­tural depart­ment of sup­port­ing his neigh­bour in a lit­i­ga­tion which he claims is aimed at co­erc­ing him to sell his prop­erty to the same neigh­bour. Abion Nkosi has al­leged that he re­alised only later, about seven years ago, af­ter oc­cu­py­ing the farm that is a por­tion of Farm Nooitgedacht in the Mul­der­s­drift area of Mo­gale City Mu­nic­i­pal­ity, that a de­vel­op­ment project known as Crane

Val­ley Coun­try Life­style Es­tate had been ap­proved be­fore he bought the farm.

There was, how­ever, no doc­u­men­ta­tion the de­vel­op­ers could show to prove that the pre­vi­ous owner had con­sented to the de­vel­op­ment.

An en­vi­ron­men­tal im­pact re­port on the planned de­vel­op­ment con­sists of a list of 18 farm­ing por­tions, in­clud­ing Nkosi’s.

It is ex­plained in the same doc­u­ment that “Crane Val­ley Es­tate will mainly con­sist of res­i­den­tial 1 type of hous­ing and will in­clude ac­tiv­i­ties such as agri­cul­ture, horse trails, a na­ture re­serve and staff ac­com­mo­da­tion”.

Nkosi said he only learnt about all this months af­ter tak­ing oc­cu­pa­tion of por­tion 142 of Farm Nooitgedacht in 2011.

“Af­ter oc­cu­py­ing the farm, my fam­ily started us­ing the avail­able space to store some of the ma­te­ri­als for the telecom­mu­ni­ca­tion busi­ness as well as trucks. A foun­da­tion was also dug for build­ing new staff quar­ters and two se­cu­rity guard­houses were built, but we only learnt later that these could not be done with­out the ap­proval of the au­thor­i­ties and for this our neigh­bour took us to court for con­tra­ven­tion of [the Na­tional En­vi­ron­men­tal Man­age­ment Act], some­thing we never knew about,” he said.

“My fam­ily was or­dered by the court to de­mol­ish two newly built guard houses, re­move any other ma­te­ri­als and trucks not re­lated to farm­ing and stop any other con­struc­tion. It took some time be­fore we fully obliged, although we did in the end, but now my neigh­bour has taken us to court again for con­tra­ven­ing a court or­der in re­la­tion to the de­lay.”

City Press has seen a Novem­ber 22 2012 let­ter, signed by then agri­cul­tural MEC Nandi May­athula-Khoza, ex­plain­ing that the fam­ily was in­deed con­tra­ven­ing the act and that the depart­ment in­spec­tors had es­tab­lished that all this was hap­pen­ing on half of the eight-hectare prop­erty. The MEC fur­ther warned the fam­ily that fail­ure to com­ply could see them “li­able to a fine not ex­ceed­ing R5 mil­lion or im­pris­on­ment for a pe­riod not ex­ceed­ing 10 years, or both…”

Nkosi said he was sur­prised be­cause there was a dif­fer­ent pic­ture on the ground.

“I learnt later that one has to seek ap­proval if the af­fected area is over 1 hectare. The land on which there was ac­tiv­ity in my prop­erty was less than one hectare, but still the depart­ment lied and said it was four hectares, which was not the case, hence I am say­ing for rea­sons known to them they just de­cided to sup­port my neigh­bour’s case and shat­tered my dream of be­com­ing a farmer and got me en­tan­gled in a le­gal bat­tle all these years in­stead,” Nkosi said. When asked about the 4 hectares the MEC cited against what was ac­tu­ally on the ground, depart­ment spokesper­son Andile Gumede said: “Ini­tial in­ves­ti­ga­tions led to the com­pli­ance no­tice be­ing is­sued on the ba­sis that an il­le­gal ac­tiv­ity had been com­menced with. Fur­ther in­ves­ti­ga­tion and more in­for­ma­tion be­ing pro­vided showed that there was in­deed no il­le­gal ac­tiv­ity com­menced with.”

The depart­ment went on to open a crim­i­nal case against the fam­ily even af­ter they had com­plied with the court or­der, amid some de­lay, and re­moved all un­wanted ma­te­rial, de­mol­ished guard houses, re­moved rub­ble and halted in­tended con­struc­tion.

“The crim­i­nal case was opened on the ba­sis that an il­le­gal ac­tiv­ity had been com­menced with, un­til fur­ther in­for­ma­tion re­vealed oth­er­wise,” Gumede said.

On why the depart­ment ap­proved an es­tate de­vel­op­ment plan which in­cluded Nkosi’s prop­erty with­out ver­i­fy­ing if he had given con­sent, Gumede said: “The pro­po­nent/ap­pli­cant/de­vel­oper [Bruce Fin­nemore] did not dis­close that he did not own por­tion 142 as re­quired pro­ce­du­rally in the en­vi­ron­men­tal im­pact as­sess­ment ap­pli­ca­tion process. This is ma­te­rial mis­in­for­ma­tion.

“Only once the Mkhonza Fam­ily Trust [of which Nkosi is a part] com­plained to the depart­ment of the ac­tion by the de­vel­oper did the depart­ment be­come aware that the de­vel­oper did not own the land in 2008; that por­tion 142 be­longed to a dif­fer­ent owner, who sold it to the new own­ers [the trust] in 2011.

“The depart­ment no­ti­fied the de­vel­oper of cor­rec­tive ac­tion it in­tended to un­der­take in that re­gard. It must, how­ever, be noted that ac­cord­ing to records the depart­ment has in its pos­ses­sion, the Mkhonza Fam­ily Trust only bought the land in 2011, there­fore the orig­i­nal and amend­ment ap­pli­ca­tions of 2008 and 2010 pre­ceded them, and as such they could not con­sent. Still, the de­vel­oper should have in­di­cated that he didn’t own por­tion 142 even then.”

Speak­ing on Fin­nemore’s be­half, lawyer Kal­lie Eras­mus said the land in ques­tions was “in­cluded in the Crane Val­ley de­vel­op­ment with the law­ful con­sent of the pre­vi­ous own­ers of that prop­erty”.

He said, how­ever, Nkosi’s fam­ily has “been re­peat­edly as­sured in writ­ing that their prop­erty, por­tion 142, will not be in­cluded in any fu­ture it­er­a­tion of the de­vel­op­ment”.

Mean­while, City Press has seen a let­ter writ­ten by Eras­mus to the Nkosi fam­ily, in which he wrote: “Our in­struc­tions are, con­se­quently, to pro­pose, wholly with­out prej­u­dice, that the mat­ter be set­tled on the fol­low­ing ba­sis: Your clients grant West­ern Crown or its nom­i­nee a 120-day op­tion to pur­chase the prop­erty for R4.5 mil­lion.

“Should no pos­i­tive re­sponse to this set­tle­ment pro­posal be re­ceived by next Wednes­day, we would re­quire you to file your heads of ar­gu­ment by close of busi­ness on Fri­day, Sep­tem­ber 20 2013.”

This, Nkosi said, was “rea­son enough for me to be­lieve they are us­ing the court to force me to sell my prop­erty to them”.

“It was a mat­ter of: ‘You sell to us or we con­tinue drag­ging you to court and let you suf­fer even fur­ther,’” he said.

Eras­mus de­nied the al­le­ga­tion.

“The al­le­ga­tion that our client is abus­ing court process to achieve a com­mer­cial aim is sim­ply un­true. In the early stages of the lit­i­ga­tion be­tween the par­ties, the Mkon­zas’ pre­vi­ous at­tor­ney of record sug­gested such a sale as a pos­si­ble means to find set­tle­ment, not our client.”

Nkosi said all he has ever wanted was to “re­tire and pur­sue my love for farm­ing, but in­stead here I am, years later, and I have spent more than R1 mil­lion de­fend­ing my­self in court”.

“My dream has been de­layed and com­pletely shat­tered. I feel un­wanted and that the gov­ern­ment has, in­stead of help­ing me as an as­pir­ing farmer, de­cided to take the side of those try­ing to push me off the edge … I am not sure if I will ever be able to pro­ceed with farm­ing af­ter all the suf­fer­ing that is still con­tin­u­ing,” he said.

Abion Nkosi

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