Sisulu ‘overrode’ tribunal
The former water minister reversed the suspension of a water licence for a development that affects a heritage site and river that is sacred to the Khoi
ACape Town civic association says the former minister of water and sanitation, Lindiwe Sisulu, “usurped” the powers of the water tribunal by lifting the suspension of a water-use licence issued to the developer of the multibillion-rand redevelopment of the River Club in Observatory, Cape Town.
A Mail & Guardian investigation has found that Sisulu overturned the appeal process giving the developer — Liesbeek Leisure Properties Trust (LLPT) — a water licence. The investigation also found that Sisulu’s special adviser, Jurgen Kögl, met the developer. Kögl was named by the amabhungane investigative journalism centre in 2012 as one of the benefactors of former president Jacob Zuma.
US multinational Amazon is the anchor tenant in the R4.6-billion mixed-use redevelopment, which will house its new African headquarters, and include residential units, office and retail space, a hotel, gyms, restaurants, conference rooms, schools and event space.
Asked about this “special treatment”, the department’s spokesperson, Sputnik Ratau, said: “The minister exercised her powers in terms of section 148(2)(b) [of the National Water Act], based on all factors considered in the initial decision-making process, to allow the developer to continue exercising the water-use licence.
“As a responsible government that has the ultimate duty to ensure that our nation’s water resources are being protected and conserved, the government also has a responsibility to ensure our nation’s water resources are being developed and used in a sustainable and equitable manner.”
When asked about Kögl’s meeting with the developer, Ratau said the department “embraces” Batho Pele principles. “One [of these] … is openness to the people served by the department. The minister’s advisers meet with people to understand the matters that are being considered so that they provide well-informed advice to the minister.”
But Kögl never had a meeting with the Observatory Civic Association (OCA) — which has been fighting against the redevelopment of River Club since 2016.
The OCA describes how the significant infilling of the floodplain to raise it above the 1:100-year flood line would “materially and permanently change this well-loved, iconic, historically and spiritually important open space area”.
The negative effects, it said, would include the displacement of biodiversity habitat, steep gradients that would inhibit wetlands and “the current aquifer recharge function of the existing natural Liesbeek River will be lost”.
The department’s approach was flawed from the outset when it considered the site as degraded and “therefore developable” and that “rehabilitation of the water resources is only possible if the proposed development is authorised”, the OCA said in its appeal, citing among its reasons that the department failed to apply its mind independently or to have the reports submitted in respect of the water-use licence application independently reviewed.
In his appeal submitted to the tribunal, Tauriq Jenkins, of the Goringhaicona Khoi Khoin Indigenous Traditional Council, said the approval of the licence is an “egregious offence” against indigenous people. The Liesbeek and Black rivers are culturally and spiritually significant, Jenkins said. “We do not accept nor have we consented to the infill of the river. We do not artificially redirect sacred rivers … We do not consent to their destruction.”
He said the developer failed to acknowledge to the department that the site is slated for national heritage status and for inclusion in the National Khoi and San Liberation Route, a presidential legacy project.
In response, the developer said the “majority of First Nations leaders in the peninsula have voiced their support” for the project “during professionally facilitated engagement.
Heritage Western Cape has declared the environmental authorisation for the project unlawful.
On 21 June, the OCA lodged an appeal with the water tribunal, an independent statutory body that hears appeals in terms of the National Water Act, against the “flawed” licence issued to the developer on 6 June. When an appeal is lodged with the tribunal against a water use licence, the appeal suspends the licence.
But, on 28 June the developer wrote to Sisulu asking her to invoke her statutory powers under the Act to uplift or reverse the suspension, describing how the appeal was without merit.
The LLPT states in documents that any delay or suspension of the project while an appeal process is underway “will expose the developer to severe financial prejudice” and that the appeal was a strategy to delay the project and to “scupper” it.
The environmental, social and economic benefits of the development have been “unequivocally” established, comprehensively assessed and “found to be positive and beneficial”, the lawyers told Sisulu.
“These benefits and the inherent sustainability of the development, were established … in the rigorous, exhaustive and lengthy environmental assessment and land use planning processes that preceded the grant of the water-use licence … and led to the latter’s approval.”
Leslie London, the chairperson of the OCA, said his requests for a copy of the licence from departmental officials was refused and he was told he should ask for a copy through a Promotion of Access to Information Act (PAIA) application. “Eventually, our lawyers took over and got the water-use licence and reasons without a PAIA application and used that to lodge an appeal with the water tribunal.”
London questioned why Kögl met the LLPT. “He arranges to meet the developer in a matter where they have tried to secure the minister’s decision which will allow them to proceed with the development. If people with strings and influence and money can get access to the minister to get a favourable decision for a billion-rand development, then we are not surprised.”
Kögl said Sisulu’s decision was prepared by the department’s regional and national office of regulations, and referred questions to the department.
In their letter to Sisulu on 14 July, the OCA’S attorneys said the developer’s request to lift the automatic suspension of its licence pending the appeal and to “continue at pace” with construction was an “improper and impermissible attempt” to undermine the constitutional rights of registered interested and affected parties in decision making.
“The proposed development will be about 12 months into the estimated 30-month construction period by the time the appeals are heard,” rendering the appeal and those of persons yet to appeal, of no effect. It was for the tribunal to assess the effect of the proposed development on the environment and “not for the minister to usurp its power and attempt to do so”.
Sisulu, in a letter to the OCA’S attorneys, said she had taken account of a number of factors, including the local economic development of Cape Town. “Therefore, rejecting the application to uplift the water use licence of [the] LLPT will not be in the best interests of the people of Cape Town and the economy of the country.”
The developer said it had had discussions with a number of people in the department. “The LLPT has adhered to the state’s legislative and regulatory framework throughout our redevelopment planning and remains committed to continue doing so. To insinuate otherwise is unfounded and libelous.”
A key component of the licence application, according to the developer, is for physical works in watercourses, “essentially the rehabilitation of a canal, the transformation of a degraded watercourse into a swale and the creation of ecological corridors — aspects assessed by qualified specialists to be ecological benefits”.
“This is not simply infilling as claimed by the OCA,” it said.
The OCA’S appeal notes how the environmental management department of the City of Cape Town lodged an appeal against the environmental authorisation of the project.
The city’s department said the authorisation “does not give sufficient weight to the environmental impacts that would result from the scale of development and infilling of the river corridor and floodplain associated with the development proposal.
“These significant impacts will result in future risks and costs, particularly in the context of climate change and the reduced role of the site as green infrastructure which supports a resilient future. The development proposal is also in conflict with historical planning for the area as predominantly open space and part of the coast to coast greenway.
“The development proposal is also in conflict with historical planning for the area as predominantly open space and part of the coast to coast greenway.”
‘These significant impacts will result in future risks and costs, particularly in the context of climate change’