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Bo Kaap, Cape Town, 8001

Jaime-Lee Gardner
072 171 1979

Louise Martin
073 335 4084

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Dem bones

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Dem bones

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6 min read

You’ve probably heard all the hype about Maropeng and the Cradle of Humankind, but there is a lot more to it than the tourism marketers make out.

South Africa has quite possibly the richest fossil and archaeological record in the world – from the earliest known living organisms to dinosaurs, ancient mammals,human ancestors and the earliest anatomically modern humans. There is rock art in the mountains, and all over the Karoo, and coastal caves shelter the evidence of human occupation going back hundreds of thousands of years – including what may well be the very first artworks and tools in the world. Even what appear to be natural accumulations of shells on the open beaches may turn out to be priceless records of human occupation. There is so much.

But with this incredible wealth of resources comes a huge responsibility – and enormous opportunities. Even just a few decades ago, landowners were resentful of environmentalists finding endangered frogs or endemic plants on their land, as they saw them as constraints on development. But, with the increasing emphasis investors and residents of estates place on sustainability and environmental responsibility, these are now considered to be assets that need to be nurtured, both for their intrinsic value and also for their marketing appeal. And heritage resources are just as valuable as natural ones.

Take Pinnacle Point Estate, for example, a successful golf and residential development. The developers teamed up with archaeologists from top local and international universities to excavate, study and document the extensive deposits in Pinnacle Point Cave, and subsequently developed the Point of Human Origins site and tour. The cave is only open to the public on organised tours, and is considered as much of a feature of the estate as its fabulous scenery and the Peter Matkovich-designed championship golf course. Along with other sites on the southern Cape Coast, Pinnacle Point Cave is on the UNESCO World Heritage Site tentative list.

The legislation

The relevant regulations include:

  • the National Environmental Management Act (NEMA), Act 107 of 1998
  • the National Heritage Resources Act (NHRA), Act 25 of 1999
  • some sections of the Environmental Conservation Act, Act 73 of 1989.

“ South Africa has quite possibly the richest fossil and archaeological record in the world.”

So what does that actually mean for developers?

If you are doing an environmental impact assessment (EIA), the contractors are legally obliged, in terms of NEMA, to find out if there is any evidence or any likelihood of heritage resources. If there are, they will usually subcontract a heritage specialist to do further assessment. You don’t need to involve yourself in it any further –that’s what you’re paying the EIA consultant to do.

But here’s where it gets tricky. If the land you are planning to develop does not require an EIA, it may still require a heritage impact assessment (HIA). In terms of the NHRA, there are specific triggers that indicate that some level of heritage assessment is required. The list that follows is not exhaustive, as it may be added to at any time because the legislation is continually evolving, but it’s about as close as we can get to a constantly moving target.

Heritage assessment is mandatory for:

  • linear developments of more than 300 metres, e.g. a road, canal or power line
  • developments involving the construction of a bridge of 50 metres or longer
  • developments on land bigger than 10,000 square metres, and that will require rezoning
  • any development that will change the character of a site that:
    a) is more than 5,000 square metres in extent
    b) will be subdivided
    c) will involve the consolidation of three or more erven
  • developments that will cost more than a sum that is to be set by SAHRA or a provincial authority (tricky one, this – talk about a moving target)
  • and– the clincher – any other category of development provided for in regulations by SAHRA or a provincial heritage resources authority.

Indicators that there may be a need for further assessment include when
the land under question is:

  • greenfield land – undeveloped land that may be used for agriculture or some other purpose
  • urban land that lies in a heritage overlay zone, involves historic structures greater than 60 years in age, or activates the triggers below.

The triggers

Even if the land does not fall into any of the categories above, it may still trigger a heritage assessment. If there is even the remotest possibility that the land contains any of the following features, you need to do a heritage assessment.

  • Shell middens. These are found all along the coast, and even quite far inland because the coastline has moved over the last few thousand years. Almost 90% of all coastal sites require an HIA.
  • All types of burial sites and graves.
  • Any building over 60 years old. Not all are of significance, but the law requires that they be assessed.
  • Military objects from more than 75 years ago. These are automatically protected.
  • Any South African War (Anglo-Boer War) sites are also automatically protected – and most will, anyway, fall under the above point, but this requirement is here to close any loopholes.
  • Any rock art. All rock art sites require a mandatory buffer zone.
  • Any sites that may contain significant fossil remains.
  • Sites that involve industrial heritage over 60 years old. This is really important if you are developing on land that once held factories, mines or mills. The equipment may be as important as the buildings.

If a development involves reclaimed land, or reclaiming land from the sea, it must be remembered that all shipwrecks and their contents are also generally protected.

The process

Okay, so say your proposed development triggers the need for a heritage assessment. What do you do?

If you are already doing an EIA, all you have to do is check that the environmental consultant has subcontracted a heritage consultant, which they are required to do in terms of NEMA.

If the development did not trigger the need for an EIA, you will need to contract a heritage consultant – unless you want to do it yourself and wade through some pretty dense and byzantine legislation. The process starts off small, and only escalates if more triggers are uncovered.

  • So the first step is a notice of intent to develop (NID). This will be prepared by the consultant, after doing a relatively simple assessment, and presented to the relevant authority. This is generally quick and simple and, if there are no major triggers, the process stops there.
  • If there are triggers, or the authority requires further information, you may need to do a scoping report or a full HIA. Depending on the land, what province you are in, and what resources are likely to be found, this could also be relatively quick and simple, or it may be quite long and involved.

“Almost 90% of all coastal sites will require a heritage impact assessment.”

The relevant authorities

Heritage is controlled on two levels. Sites or material of national significance are in the jurisdiction of the South African Heritage Resources Agency (SAHRA). Most of the balance is dealt with at provincial level – in theory – but, in reality, only three provinces are mandated to issue permits, and the rest are dealt with by SAHRA on an agency basis. Of these three, the most efficient are Heritage Western Cape (HWC) and Heritage KZN (Amafa).

The bottom line is that, like the legislation, the relevant authorities are also undergoing a certain amount of evolution, and are learning as they go along. So dealing with them is not that straightforward. As heritage consultant Dave Halkett of ACO Associates says, ‘I’ve been doing this for 30 years, and I still get surprised. The law is constantly changing mand being tested.’

Why bother?

It may seem like just one more tedious piece of red tape standing between you and the first residents moving in, but there are good reasons to not skip this step.

  • It’s not expensive, and may cost less than the bathroom in your demo house.
  • It usually takes no more than a month or two but, of course, complicated cases can take much longer. (But then the rewards are also likely to be greater.)
  • If you don’t, you may get away with it and, if you are caught wilfully breaking the law, the fine is a mere R300,000. That really isn’t much but – you will have a criminal record! And you will need to retain a lawyer for a few months to wangle out of it, and that’s likely to cost more than R300,000. More importantly, you will almost certainly be issued a stop works order, which could result in some very costly delays. You may even be ordered to demolish any work you have already done. It’s really not worth it.
  • And, remember, anyone can lay a criminal charge in terms of the Act – that little old lady walking her Yorkie, or the lycra-clad jocks on mountain bikes. In the age of social media there are so many watchdogs out there – including some dedicated local heritage groups. Big Brother, Auntie May and her Yorkie are all watching you!
  • It’s not just new-age, enviro-fascist, fossil-bunny-hugging. Identifying the cultural resources on the land you intend to develop will enable you to fully utilise any and all opportunities to most effectively and profitably develop the site. But there’s also a less tangible but no less important value. While archaeology and palaeontology deal with things that have been long dead, they are living and vibrant disciplines that contribute immensely to our understanding of what it is to be human – and that changes the way we think of ourselves and our neighbours. Usually for the better.
  • Unlike equally important natural resources, heritage resources are not renewable, and not self-healing. While they manifest as concrete artefacts, their value lies in the insights they offer into our heritage and history – and once they are disturbed, destroyed or degraded, this intangible resource is gone. For ever.


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