Big game parks vs big farming: the battle raging on the Klaserie River
The fight between heavyweight conservationists and one of South Africa’s largest citrus exporters over land in the Kruger Park buffer zone goes to the very heart of South Africa’s environmental legislation. By
One of the country’s largest citrus exporters is taking on 15 of the biggest brands in nature conservation, with the provincial authorities so far favouring the former. If the final battle is lost, say the conservationists, it will be open season on the region’s ecological treasures.
When ecologist Jessica Wilmot wrote a report on the likely impact of a proposed citrus farm on the Klaserie River basin, outside Hoedspruit in Limpopo, she highlighted the problem of where the farm had been staked out – in “an area where the main land use is either wildlife-based tourism or wildlife economy initiatives”.
The land is sandwiched between two of the largest private game parks in SA, the 60,000ha Klaserie Reserve and the 53,000ha Timbavati Reserve.
Wilmot, who published her report in April 2019 on behalf of the NGO Elephants Alive, said the elephants on the reserves would almost certainly sniff out the orange orchards, which would result in “human-wildlife conflict” and the possible slaughter of the animals.
The Kruger National Park and the Kruger to Canyons Biosphere Region, in an earlier response to the mooted project, had also foreseen the problem.
“The current fencing system ‘keeping animals in’ is very porous,” they noted, because the Klaserie River “cannot be fully fenced, meaning movement levels from the reserve to the proposed citrus area could be high”.
There are a number of reasons for their interest. First, the proposed development is inside the Kruger National Park Land Use Buffer, which is “earmarked for expansion”. Second, the Klaserie River flows into the Olifants River, one of the Kruger’s largest watercourses.
Their response was blunt: “Vast amounts are being invested in the clearing of the Klaserie headwaters of invasive alien plants to improve streamflow. This additional water is not for uptake by a single entity but is intended to maintain basic human needs and river health to the confluence. Downstream impacts on the protected areas are likely and there is little evidence of mitigation.”
The mitigation plans should have been included in the draft environmental impact assessment (EIA), completed in 2018. The final EIA, submitted in June 2019, acknowledged that irrigation of the citrus orchard would have a “negative impact on available water resources in the region”.
So how, then, did the citrus farmer get his environmental authorisation?
This question, among many others, has formed the basis of ongoing litigation between the citrus farming company, identified in the court papers as Casketts Sitrus – a cosmetic name-change from Soleil Mashishimale, a subsidiary of the Soleil Sitrus Group, which exports to international markets – and the Klaserie Reserve, the Timbavati Reserve and Elephants Alive.
The applicants are leaning on the National Environmental Management Act (NEMA) to take Soleil’s environmental authorisation on review, a process – still pending – that involves taking the Limpopo provincial authorities to court.
Backing up the applicants, as “interested and affected parties” in a concurrent appeal process, are no less than 12 of the biggest brands in South African conservation, including SANParks and the Greater Limpopo Transfrontier Conservation Area.
As all of them were aware, there was evidence to suggest that Soleil had acted unlawfully in its haste to plant saplings and get the operation going.
On 2 August 2019, the Limpopo provincial government’s Department of Economic Development, Environment and Tourism (LEDET) granted Soleil the right to start preparing the ground.
There were caveats to the authorisation, including that no more than 102ha would be open to cultivation; that a permit for removing “protected trees” would need to be obtained; and that no farming could take place within the flood line of the Klaserie River.
On 3 September 2019, Thabo Mokone, the Limpopo MEC for economic development, environment and tourism, was sent 15 separate appeals against the decision.
The appellants alleged that, “despite repeated correspondence,” Mokone had failed to adhere to the prescribed time limits for the processing of appeals. Soleil – in apparent contravention of NEMA, which states that an appeal “suspends an environmental authorisation” and that to “commence with an activity” in these circumstance is a criminal offence – had brought in earth-moving equipment.
On top of Soleil’s disregard for the process, which it justified in legal correspondence by suggesting that the MEC’s delay was evidence of his intention to deny the appeal, it would soon appear likely to the appellants that the conditions of the original authorisation had been breached.
Although Soleil had been granted permission to repair one of the dam walls on the property, Google Earth satellite imagery – captured by Wilmot in February and August 2020 – suggested that the company had deepened and widened the dam itself.
By October 2020, when the appellants obtained ground-level photographs, the full extent of Soleil’s activities became clear. The images showed that bulldozers, backhoe loaders and articulated trucks were on site.
The appellants decided to call Mokone to account. On 19 November 2020, in a letter to the MEC on behalf of Elephants Alive, attorney Richard Summers alleged that Soleil had transgressed NEMA and committed a criminal offence. He demanded that LEDET investigate the case.
When nothing happened, Wilmot approached other public institutions mandated with the investigation and prosecution of environmental crimes. In December 2020 and January 2021, after unsuccessfully reporting Soleil’s alleged transgressions to the National Environmental Crimes and Incidents hotline, Wilmot lodged complaints with the Environmental Management Inspectorate, otherwise known as the Green Scorpions, which were all met with disturbing silence.
Next was the South African Police Service, which has the same powers as the Green Scorpions – but, again, crickets.
The surveillance of Soleil’s activities continued. On 15 December 2020, Bruce McDonald, a fixed-wing pilot, captured images of extensive land clearing.
In February 2021, Summers tried his own luck with the Green Scorpions, to no avail. A few days later, Wilmot took photographs that appeared to show breach of environmental legislation on a large scale.
By this late date, MEC Mokone had denied the appeal. In the decision of 24 March, rendered 18 months after the original submission, only the appeals of Klaserie Reserve and Masungulo Lodge were addressed. None of the other conservation heavyweights involved in the matter had received word of Mokone’s decision.
The appeal decision had imposed a further condition on Soleil – the erection of an elephant-proof fence around the property “to enhance the safety of freely roaming elephants and other damage-causing animals”.
According to Wilmot, the images from April 2021 showed that no such fence had been erected.
In a letter to Elephants Alive dated 10 September 2020, Soleil’s attorney, Leon Doyer of WdT Inc, noted that it had been more than a year since the conservationists had lodged their appeals. The National Appeal Regulations, Doyer noted, allowed authorities no more than 50 days from receipt of the responding statement.
“You are in charge of the current appeal,” Doyer insisted in the correspondence with Elephants Alive. “Our client cannot verify that all the correct steps were taken to lodge the appeal timeously and procedurally correctly. It is obvious by now that [LEDET] either has taken the view that it is not obliged to even consider the appeal (due to some or other mistake in the process) or does not intend to do so.”
Accordingly, said Doyer, his client intended “to act on the authorisation and commence with the development of the property for citrus farming”.
Six weeks later, after being informed that the appeal decision was expected on 27 November 2020 – and less than a week after Summers had requested Mokone to “investigate” the alleged criminal breach of NEMA – Doyer said his client would “await the MEC’s final decision and then react accordingly”.
Soleil’s legal correspondence has been consistent in its framing of the company’s counter-arguments:
Where the conservationists pointed out that the property had lain fallow for a decade and thus retrieved its natural ecological state, Soleil argued that it was registered farmland, which hadn’t been pristine bushveld since 1967.
Where the conservationists contended that Soleil had breached their authorisation by extending and deepening the dam, Soleil said they were “repairing the wall that already existed”.
Where the conservationists insisted that there was still no elephant-proof fence,
Soleil maintained that
“the fences currently in place” were “more than adequate deterrence against elephants”.
The dispute over water rights was one that Soleil claimed to have settled to the satisfaction of the authorities.
The Klaserie Reserve, the
Timbavati Reserve and Elephants Alive have launched a judicial appeal against Soleil’s original environmental authorisation, with the MEC and LEDET listed as co-respondents.
On 14 May, the applicants approached the Polokwane High Court for an urgent interdict, hoping to stop Soleil from “further clearing of the land, installing irrigation systems, planting citrus saplings and erecting fences” until the decision on the review had been handed down.
On 8 June, the interdict was denied. Judge Veronica Semenya chose to set aside the ecological arguments and focus on the ineptitude of the authorities.
The applicants had been aware for some time that they “weren’t being assisted,” she noted in her ruling, “so why was the application only launched now?”
The conservationists have not given up. The review application has been drawn up to go to the heart of the fight, where the ultimate arbiter would hopefully be NEMA itself.
The elephants on these two reserves
would almost certainly sniff out the orange orchards, which would result in ‘human-wildlife
conflict’ and the possible slaughter
of the animals