In the High Court of South Africa
(Durban and Coast Local Division)
Case no:
In the Matter between:
N. Mqadi Complainant
And
Adv. S Lakhi Respondent
_____________________________
Complainant’s Submission for a Special Review in the High Court i.r.o of the Promotion of Equality and Prevention of Unfair Discrimination Act No. 4 of 2000
To: The Registrar of
The High Court
(Durban and Coast Local Division)
And To: Mr M Shezi
c/o State Attorney
KwaZulu-Natal
Sirs
Be pleased to take notice that the Complainant herein evenly files the following representations in support of his application for a Special Review in terms of the court order granted by the Equality Court sitting at the Durban Magistrate’s Court on the 13th day of October 2006, before the Presiding Officer Mr G. Abrahams Esq.
Under Case No: 76/2005
1.
The grounds for the complaint emanates from the following allegations:
1.1 Use of language loaded with racial overtones by a Senior Public servant
1.2 Breach of Batho Pele principles
1.3 Abuse and/or Humiliation of Dignity to a private citizen
2.
The complainant asks the High Court to overturn the ruling of the Equality Court with a finding that it was constitutionally invalid and unlawful.
3.
The complainant avers that the Equality Court failed to consider the potential prejudice to himself (Mqadi) which may affect the fairness of the trial, as complainant was not legally represented throughout the proceedings. Such decision by the Equality Court infringed on the complainant’s constitutional right to equality and compromised the complainant’s right to a fair trial.
4.
The complainant avers that it standard practice in the legal system and in a constitutional democracy that proceedings in a court of law were imperative for previously-disadvantaged persons to be legally-represented.
5.
The complainant avers that the Equality Court failed to discharge her responsibility as it failed to take into account the generally-established rule on practice.
6.
Complainant avers that the Equality Court failed to make a determination regarding the central role of public service administration employees that their professional conduct and ethics shall at all times not be illegal but be necessarily always ethical as they send strong messages which may encourage unethical behaviour to the wider citizenry.
7.
Complainant avers that Respondent breached the central government’s noble motives of Batho Pele principles. The Equality Court failed to make a determination that should inculcate and deepen a culture that strengthens a sound constitutional democracy work ethics.
8.
Complainant avers that the fundamental principle of our democracy--Human Dignity—was grossly violated during the 13 September 2006 visit at Independent Complaints Directorate (ICD), as Respondent failed to create a loving, tender and caring environment to a private citizen canvassing government services.
9.
Complainant avers that the treatment he endured at Independent Complaints Directorate offices on 13 September 2005 was grossly inhumane, unfair, unethical, abusive and humiliating. Respondent had a mens rea when she refused to consult with complaint on an appointment that was set down a month earlier after “learning from some nameless ICD personnel that Mqadi was a difficult complaint”.
10.
Complainant avers and respectfully submit that the refusal to consult with complaint was a dereliction of duty by Respondent as when called by the Equality Court to produce her personal diary, it depicted an entry-in the respondent’s handwriting- showing that Respondent had (personally) scheduled an appointment at 10H00 to consult with the Applicant.
11.
Complainant avers that the Respondent had breached the KwaZulu-Natal Citizen’s Charter as unveiled by Premier Sibusiso Ndebele which implores that public servants should ensure a responsive climate focused on people’s needs, and that the citizens are invited to participate in the monitoring of the efficiency and effectiveness with which delivery of services is effected.
12.
Complainant avers that the Respondent’s evidence-in-chief gave credence to the complainant’s version that he was abused, humiliated, severely prejudiced and constitutional rights grossly violated as the Respondent’s first line of defence re-iterated the blatant disrespect of the Constitution Act 108 of 1996 when,her legal counsel said,“There was nothing wrong in calling you African, even the country’s Constitution classifies people in terms of Whites, Coloureds, Indians and Africans”.
13.
Complainant avers that the crux of the complaint lodged with the Equality Court was very much informed by the blatant disrespect, shouting, tone and the context upon which racial language was uttered. I argue that such language was not necessarily illegal but was unethical to a citizen requesting government services.
14.
Complaint avers that the Presiding Officer failed to scrutinize and rule in a detailed manner whether such language and conduct by a senior public servant was justified during the “Age of Hope” and the creation of a caring, people-centred developmental democracy in the Republic of South Africa.
15.
Complaint avers that the Honourable Court must look in details at the Respondent’s base racism and her non-chalance about the provisions of the Bill of Rights by a public servant occupying her position. I implore the Court’s indulgence to scrutinize the Respondent’s views on 13 September 2005 about Africans that were re-iterated on the court record.
16.
Complainant avers that the Respondent’s language was not justified and is contrary to country’s constitutional provisions of a democatric, non –racial, multi-cultural and unified Republic of South Africa?
17.
Complainant avers that the Respondent had shown blatant disrespect, innuendo, deep-seated hatred and subjectivity to the complainant that was grossly prejudicial as Respondent had repeated her remarks “ I had learnt that complainant was a difficult person to deal with” before the Equality Court hearing.
18.
Complainant avers that the refusal of legal aid representation by the Head of Durban Justice Centre was a travesty to a fair and just litigation.
19.
Complainant avers that Durban Justice Centre refusal of legal representation to the complainant was a transgression that breached the corporate principles of good governance and transparency.
20.
Complainant avers that the refusal of legal aid representation to the complainant by the Durban Justice Centre further perpetuated the marginalisation of the complainant as a historically-disadvantaged individual in the democratic Republic of South Africa.
21.
Complainant avers that his constitutional right to a fair trial was violated as complaint was repeatedly denied access to justice by a senior public servant-Head of Durban Justice Centre- despite the recognition and development of a right to effective and affordable court structures, systems and management through the concept of fundamental Batho Pele principles.
22.
Complainant avers that the much-vaunted Legal Services Charter that seeks to restore dignity of all people before a court of law in the Republic of South Africa was violated by the Durban Justice Centre as refusal to grant legal aid representation to the complainant was prejudicial to opportunities of/to a fair trial.
23.
Complainant avers that Durban Justice Centre violated the country’s key focus in ensuring a more caring government peoples-centred environment whereby all citizens are equal and should be seen as equal before law.
24.
Complainant avers that the Head of Durban Justice Centre committed a serious crime which hindered the complainant’s chosen approach regarding the unique nature and the intricacies of a South Africa in transformation as the refusal grant violated the legislative framework issued under the Equality and Prevention of Unfair Discrimination Act No 4 of 2000 was disregarded by the Head, personally.
25.
Complainant avers that the adjudication of the Equality Court complaint should be declared a ‘mistrial’ as it failed to create an affirming environment as there were blatant disparities in the provision of legal services, that were compounded by the disparity in professional and economic opportunities of the two litigants as the Head of Durban Justice Centre violated and breached the Public Finance Management Act.
26.
Complainant avers that the socio-economic empowerment through unconditional access to legal justice opportunities to all citizens in the Republic of South Africa was denied for a fair and equitable trial as enshrined in the Constitution Act 108 of 1996 0f the Republic of South Africa.
27.
Complainant avers that the education of the judiciary service providers, such as the Presiding Officer, was critical about knowledge and understanding of the fundamental principles of Batho Pele as the Equality Court complaint was based on the unethical, and not illegal conduct of the Respondent.
28.
Complainant respectfully avers that there was a blatant abuse of state power and mal-administration that was committed by the Head of Durban Justice Centre and the Presiding Officer {Equality Court} to proceed with the hearing when legal aid was not granted/refused against the complainant without furnishing him with sound reasons.
RELIEF SOUGHT:
a. I pray that the Durban High Court reverse the findings of the Durban Equality Court, and rule in the Complainant’s favour.
b. I pray for the High Court to look critically and expose the flaws that were brought to the justice system through human failure, stupidity and small-mindedness by instituting a financial audit and forensic investigations on the corporate guidelines by the top Durban Justice Centre personnel.
c. I pray for the High Court to provide answers to the Presiding Officer’s question “whether the fact that complainant was unequally armed detracted from his right to fully participate in the proceedings and also whether he was given access to justice.”
d. I pray for the Hon. Court to order the Respondent to make an unconditional apology to the Complainant about the treatment he was made to endure at ICD offices on 13 September 2005.
14.
e. I pray for the Hon. Court to dismiss the Respondent’s defence and order the Respondent and the Durban Justice Centre to pay the Costs.
Dated in DURBAN on this 6th day of January 2007.
Nkonzwenhle H. Mqadi
COMPLAINANT
Address: Z 484
Umlazi Township
4031
Tel:031-9096457
Cell: 0825816323
0735370549
Saturday, May 9, 2009
N2 Wild Coast Toll-Free Road
SADC REGIONAL ENVIRONMENTAL EDUCATION FELLOWSHIP PROGRAMME
(06 October 2005)
DISCUSSION DOCUMENT ON THE SOCIAL, ENVIRONMENTAL & ECONOMIC IMPACT ON THE CONSTRUCTION OF N2 WILD COAST TOLL-FREE ROAD TO THE LOCAL COMMUNITIES
Submitted by: NKONZWENHLE MQADI
(Independent Media Practitioner)
Contact: 0825816323 / 0762557826
E-mail :emaqadinimedia@webmail.co.za
nmqadi@yahoo.com
DURBAN SOUTH AFRICA
INTRODUCTION
The profound changes to the environment during the last decade have resulted in a strong focus on resource materials development, use and dissemination with a participatory orientation to local communities. The development of environmental educational awareness support material should play an advocacy role for environmental sustainability, global partnership development, peace, human rights and the eradication of extreme poverty among communities.
The local communities should be empowered through education and training that involves environmental education methodologies and development programmes to enhance the achievement of the UN Declaration on Sustainable Development.
Lack of a sound consultative process with local communities has resulted in many environmentalists questioning the rationale employed to justify the construction of a toll free road across two provinces as the project will sacrifice one of the most spectacular coastlines in the name of development.
BRIEF HISTORY OF THE PROJECT
Research shows that some time in October 2002 a group of consultants hired by a major road-building consortium to investigate the ramifications of creating a new 550 kilometre toll road between Durban in KwaZulu-Natal and East London in the Eastern Cape presented the Draft Impact Report for public submissions.
The Consultants report had stated that there were no significant social or environmental hurdles preventing the construction of a new N2 Wild Coast Toll Free Road. The consultants report pointed to a wide range of potentially positive long-term spin offs, such as better access and better prospects for economic, tourist and industrial development.
The environmental issues such as that the road would carve a completely new section of almost 100 kilometres through the steep river valleys of the Transkei to create a new coastal route between the Wild Coast Casino scenery and Port St John’s were overlooked or ignored.
The numerous village residents along the length of the road who will be forced to resettle or lose grazing or farming rights to make way for new road interchanges, re-alignment or creation of road reserves and biodiversity interests were never considered in the report.
The consultants’ finding stated that the Wild Coast Spatial Development Initiative would create better road networks that would also increase the prospects for cash economy, jobs and economic development. However, the Consultants’ report made no mention of any comprehensive consultation process with all the interested stakeholders.
The Draft Impact Report listed five major companies outsourced for the Toll Road construction. They are namely; Group Five Construction, Grinaker-LTA, Hawkins Hawkins and Osborn, Steward Scott, and WBHO Consortium.
Members of the public were thereon given until 1 November 2002 to make submissions about the Draft Impact Report.
THE ENVIRONMENTAL ISSUE
The environmental issue under discussion here is the impact of the construction of the N2 Wild Coast Toll-Free Road and the link between people
and nature that was deliberately broken by the private developers.
The proposed road construction reveals a bitter struggle in which the rural communities’ desire to hold onto the lands of their ancestors is pitted against the private developers who are projected as forces that do not value the environmental, cultural and historical allegiance of the local inhabitants but are more concerned with economic motives.
Several spokespersons for environmentalists, community representatives, church leaders and civil society formations opposed to the Draft Impact Report and are questioning the environmental impact assessment findings. The majority of Non Governmental Organisations are challenging the proposed construction of the N2 Wild Coast Toll Free Road.
VIEWS OF ENVIRONMENTALISTS
Vance Martin, President of the WILD Foundation and Executive Editor of the International Journal of Wilderness advocates that the South African National Roads Agency Limited (SANRAL) should suspend any final decision on the proposed Toll Road construction until all the local communities who were never involved in the development of a comprehensive land-use plan are consulted.
Interviewed by the SABC 2 on 26 January 2003, John Costello of the Wild Coast Conservation Forum dismissed the N2 Toll Road by saying it will destroy the area where karoid sediments support extremely rare plant endemics of great antiquity which have no relatives on distant islands and continents of Gondwana origin. Costello also emphasised that the N2 Toll Road would be cutting a swathe along the cultural and scenic offerings that affects the Pondoland Coast that was recently granted World Heritage Status. “How can you justify blasting a highway through one of South Africa’s
most pristine areas? ” asks Costello.
Well-known local botanist Tony Abbot argues that there are many endemics in the Wild Coast that have just been discovered and there are countless plants in the grasslands still unnamed and waiting to be discovered. Abbot says the Wild Coast is one of South Africa’s magical areas. It is not only plants that will be disturbed by development but also the local rural communities that will suffer from the noise of the Toll Road traffic passing through their area.
THE POSITION OF CHURCH LEADERS
Bishop Geoff Davies of the Anglican Diocese of Umzimvubu, which extends from the Pondoland Wild Coast to the Drakensberg Mountains describes the go ahead for the proposed N2 Wild Coast Toll Road as illogical. He warns that there will be disastrous consequences, and he proposes that a commission should be appointed immediately to ensure the implementation of sustainable development and democratic decision-making.
“We should turn the existing R61 main road into the N2 Wild Coast Highway and establish and protect the eco-tourist potential of this area. Wild Coast is one of the 25 botanical hotspots and most incredible coastlines in the world,” says Bishop Davies.
South African Council of Churches (SACC) General Secretary, Dr Melefe Tsele, noted that their Biblical and historic mandate to be good stewards of God’s resources and to deal justly in the face of human, social and ecological challenges. This forces them to respond with deep concern to the suggestions contained in the Record of Decision.
In the letter which SACC addressed to the Minister of Environmental Affairs and Tourism dated 17 December 2003, it is illegal that the construction of the N2 Wild Coast Toll Road will not address adequately concerns on poverty eradication, sustainable ecological development or due civil empowerment.
Therefore, the SACC said they were obligated to urge the Minister to withhold approval for the road construction and appealed on behalf of affected communities that the provincial governments and local government authorities be given adequate time to consult and discuss the Draft Impact Assessment Report proposals with the affected communities.
FEARS OF COMMUNITY REPRESENTATIVES
Local people are up in arms and they accuse the government and private developers of doing things unilaterally as was the case during the building of the Wild Coast Resort when they were never consulted but were forcefully uprooted and displaced from their ancestral lands because of other people development motives.
According to Rev N M Gable of Lusikisiki, they fear that the toll road will divide communities and create numerous social problems. Further, he complains that the suggested wide range of potentially positive spinoffs, including employment opportunities to the local people were a pipedream because such promises were made when the casino was built on the banks of Umzamba River but to date very few locals have been gainfully employed.
STANCE OF CIVIL SOCIETY ORGANISATIONS
The Save Wild Coast Campaign (SWC), which is a loose coalition of over 200 organisations and individuals, have voiced opposition to the current route of the proposed N2 Toll Road too. SWC states it was environmentally insensitive for South African National Roads Agency Limited to obtain financial gains at the expense of the rural communities. They cited a 1996 Indaba called and attended by the then Minister of Water Affairs and Forestry, Prof Kader Asmal, in the area.
They allege it was resolved to establish a broadly acceptable decision-making framework for forestry planning, with a strategy aimed at meeting the needs and demands of community by establishing procedures that will empower the rural people.
Several other member organisations have voiced concerns that the government dealings have shown no insight into environmental ethics, bio-diversity protection or economic justice.
According to SWC, the consultation, if any, was so minimal that even the Pondoland King, Mpondompini Sigcawu, was excluded from the process. Wild Coast communities have concluded that the project was forced upon them without the due consultation process. Because the mining of iron ore and titanium of the sand dunes was proposed on the Wild Coast, fast, reliable and efficient transportation mode was needed to ferry the resources to East London industries.
In a letter dated August 2004, the SWC calls for the South African National Roads Agency Limited to offer a public apology to the people of South Africa for false impressions arising from the ambiguous full-page advertising on the proposed N2 toll road placed in various newspapers, including “The Mercury”, “Daily Dispatch”, and “ Sunday Tribune” in February and March 2004.
The Save Wild Coast campaign have also proposed that South African National Roads Agency Limited transfers the two billion rands earmarked to construct the two Msikaba and Mtentu bridges to be spent on developing and upgrading the infrastructure of Pondoland for the benefit of her communities.
They say 90% of the area is made of plantations; therefore, the money should develop agriculture and train and equip the Pondoland people with skills for sustainable development.
Rehema White, the Acting Dean of Research at the University of Transkei says relocating and finding alternative land for uprooted communities caused by building the proposed N2 Wild Coast Toll Road would be complex under the communal land ownership structure, and the local communities should start preparing themselves for new transport strategies.
The Wild Coast local communities’ anger has fostered the creation of a community-based empowerment initiative called the Wild Coast Empowerment and Monitoring Project (WEMP).
Accordingly, the Wild Coast Empowerment and Monitoring Project aims to help the rural communities develop the capacities and strategies as well as skills for both the sustainable utilization and equitable distribution of the land and other national resources along the Wild Coast.
Wild Coast Empowerment and Monitoring Project says there should be a institutional capacity building of local community structures to ensure co-ordinated and effective local structures such as participation and active involvement in the local government process. WEMP argues that having well-informed communities will help influence the government policy on land tenure legislation on the simultaneous movements towards both traditional forms and elected institutions.
WEMP’s argument is that there is a lack of viable institutions to champion and take custody of communal land rights because there are still unaddressed complaints about the Wild Coast Spatial Development Initiative (WCSDI) that were launched in 1996 to attract investment in the area. The Department of Environmental Affairs and Tourism has championed eco-tourism as its flagship for economic development since 1994 but there is nothing tangible in this direction, says WEMP.
Development Bank of Southern Africa analyst Julie Clarke says there is no convincing evidence to prove that the Wild Coast proposal is in the interest of the local communities. Clarke challenges the notion that big bridges and fast roads automatically bring development and warns that the days of getting away with poor development proposals before selling them on the grounds of “job creation” are over. She argues that there are several questions that investors have to answer to and that these questions have not been answered in the existing documentation presented by developers to date. “Building a freeway through the global hotspot of bio-diversity will not only have an impact on the endemic ecology but will also deflate the opportunities to uplift local communities through promoting the region as an eco-tourism destination,” warns Clarke.
SOUTH AFRICAN NATIONAL ROADS AGENCY LTD
Writing in the “Business Report” dated 16 October 2003 SANRAL Chief Executive Nazir Alli dismissed all the various stakeholders’ concerns and media statements about the Environmental Impact Assessment Report as ill-informed and baseless. “There is a general misrepresentation with no foundation to remark that the proposed highway is being planned by an almost secret community of road engineering contractors, planners and the South African National Roads Agency Limited. The process of planning, financing, designing, constructing and maintaining is subject to extensive legislation that requires comprehensive public participation, open to public tender scrutiny and adjudication of more senior tribunals, including our courts of law” explained Alli.
In addition, according to South African National Roads Agency Limited Marketing Manager, Connie Nel, the N2 Wild Coast Toll Free Road should be viewed within its proper context of furthering sustainable development and improving the quality of life of our citizens. Therefore, added Nel, it as for the above reasons that the Wild Coast Toll Free Road was identified as one of the areas for strategic development in accordance with the Government’s Spatial Development Initiative (SDI) strategy. “The inefficiencies of the transport sector and the lack of a proper road network in many pars of South Africa have been identified as major impediments to economic growth and development, as well as to national and international trade.
The construction of the highway was to fast-track the delivery of goods and services, access to employment opportunities and household access to consumer goods since all the above depended on transport, and more particularly roads” said Nel.
The Hibiscus Coast Municipality website, where the Wild Coast area falls, insists that all the environmental planning frameworks were followed properly before the construction tender was awarded to the five toll road constructing companies.
East London Buffalo City and Umthatha Chamber of business fully supported the toll road but opinion was divided among the smaller Eastern Cape municipalities.
Mbashe municipality criticised the location of the toll plaza next to poor communities while the Kei municipality and Nyandeni municipality were non-committal over the proposed toll free road.
The eThekwini Municipality’s Transportation Advisory Board dismissed new toll roads driven by private sector interests. Its website reads “The eThekwini Metro is planning to restructure its public transport system and has not taken into account the proposed toll road”.
BUSINESS GROUP
Businesses trading from the Joyner Road Interchange (Isiphingo-Durban) felt the location of a major toll plaza on their front doors could push up costs by at least R 750 000 00 a year, says South African Breweries District Manager Greg Foreman. Foreman added that 50% of their staff lived south of the toll plaza; therefore, their transport costs would escalate and the value of the company’s business would decline because of its proximity to a toll plaza.
The Chairperson of the Ogwini Taxi Association, M E Mkhize, says taxi operators would have no option but to increase fares. Durban Chamber of Commerce representative Colin Butler said the building of toll roads in remote rural areas was likely to yield little revenue and said proponents of the proposed highway should be aware of the dire consequences which can be attributed to a lack of extensive consultative processes.
SOCIO-HISTORICAL CONTEXT OF THE AREA
People that reside along the stretch of Umzimvubu River, Umtamvuma River and the Umzamba River regard the Wild Coast area as part of their cultural heritage. Even when many rural households were forced to re-settle at the nearby villages of Bizana, Port St John’s and Lusikisiki when large tracts of land were turned into the Wild Coast Resort and Casino, they have always related to it as the resting lands of their ancestors.
The Wild Coast area is situated on the Lower South Coast and falls under the Hibiscus Coast District Municipality under the Ugu Regional Council in KwaZulu-Natal and it stretches into Port St John’s and beyond to the Eastern Cape.
According to the 2001 national census, Statistics South Africa and the Independent Electoral Commission records, the area known as Umzamba to the local African inhabitants, covers approximately two hundred and fifty (250) kilometres of coastline, two (2) district municipalities, seven (7) local municipalities, twenty (20) wall-to-wall municipal wards, four (4) regional authorities, about thirty (30) tribal authorities and their respective administrative areas total about 12 000 households.
The local community is a mix of IsiZulu-speaking and IsiXhosa-speaking people as the area was on the edge of a cross-border region between the provinces of KwaZulu-Natal and Eastern Cape.
Since the Municipal Demarcation Board delimitation of ward boundaries in 2000 and the subsequent local government elections, KwaZulu-Natal governs the area.
BIOPHYSICAL CONTEXT
The Wild Coast has pristine vegetation which have been identified by the South African National Parks (San Parks) and the Wildlife and Environmental Society of South Africa (WESSA). The Wild Coast area is seen as the last remaining habitant of its kind on the continent.
Despite its critical challenges the area faces regarding the proposed N2 Wild Coast Toll Free Road, her scenery remains untapped in terms of economic, social and sustainable environmental development.
Local people link the proposed development of the N2 road in the Wild Coast area to plans by Trans-World Energy and Minerals to extract titanium and iron ore resources from the Xholobeni sand dunes in the not too distant future.
CONCLUSION
When Minister Marthinus van Schalkwyk decided to uphold appeals against the construction of the N2 Wild Coast Toll Free Road, he cited ‘extensive and inappropriate links between the consultants, Bohlweki Environmental company that had compiled the EIA, the Group Five Developers, and the Wild Coast Consortium’ for breaches that had been highlighted by the environmentalists and civil society institutions the previous year (The Mercury 14 December 2004). Therefore, the critical challenge facing all stakeholders and the wider South African public is to-re-visit the country’s supreme legislation, the S.A Constitution Act 108 of 1996.
The Constitution establishes that negative impacts on the environment and on the people’s environmental rights should be anticipated and prevented, and where they cannot be altogether prevented, at least should be minimised and remedied. Weighing and balancing the pro’s and con’s of the obligations and rights of both the environment and the welfare of the people, it becomes imperative that the democratic government principles of EAT (i.e ethical, accountability and transparency) should be followed at all times. Failure to uphold these cardinal principles of our Constitution remain critical aspects as we deepen the pillars of a democratic culture in South Africa. SANRAL, as the government representative, should take the blame because finding the wider civil society institutions challenging the proposed N2 Wild Coast Toll Free Road in unison proves that the due processes as enshrined in the Constitution was never followed.
We should address the dilemma posed by the need for economic development dictates on the one hand and the need to preserve and conserve environmental imperatives on the other by using the ideal approach of transparent consultative processes.
Engaging communities at all levels or across the board in their respective contexts would help to enhance the achievements of the Millenium Development Goals, the 2002 World Summit on Sustainable Development resolutions and the principles of the UN Declaration on Sustainable Development.
Writing in Caring for the Earth-South Africa. A Guide to Sustainable Living (WWF, 1997: 41) John Yeld warns readers that “We must not burden later generations with an ecological debt that will condemn most of them to an even more precarious poverty stricken existence than that endured by millions of people today”.
REFERENCES
1. The Mercury, 17 October 2002; The Mercury, 17 June 2003
2. SABC 2 Interview, Sandra Herrington, 26 January 2003
3. Business Report, 16 October 2003
4. The Mercury, 14 December 2004
5. SACC Public Policy Liaison Unit, 17 December 2003
6. SANRAL presentation (undated)
7. WEMP presentation (undated)
8. The Herald, 16 January 2004 (http.www.epherald.co.za)
9. Caring for the Earth-South Africa. A Guide to Sustainable Living, Yeld.J, Stellenbosch: WWF,1997,41
(06 October 2005)
DISCUSSION DOCUMENT ON THE SOCIAL, ENVIRONMENTAL & ECONOMIC IMPACT ON THE CONSTRUCTION OF N2 WILD COAST TOLL-FREE ROAD TO THE LOCAL COMMUNITIES
Submitted by: NKONZWENHLE MQADI
(Independent Media Practitioner)
Contact: 0825816323 / 0762557826
E-mail :emaqadinimedia@webmail.co.za
nmqadi@yahoo.com
DURBAN SOUTH AFRICA
INTRODUCTION
The profound changes to the environment during the last decade have resulted in a strong focus on resource materials development, use and dissemination with a participatory orientation to local communities. The development of environmental educational awareness support material should play an advocacy role for environmental sustainability, global partnership development, peace, human rights and the eradication of extreme poverty among communities.
The local communities should be empowered through education and training that involves environmental education methodologies and development programmes to enhance the achievement of the UN Declaration on Sustainable Development.
Lack of a sound consultative process with local communities has resulted in many environmentalists questioning the rationale employed to justify the construction of a toll free road across two provinces as the project will sacrifice one of the most spectacular coastlines in the name of development.
BRIEF HISTORY OF THE PROJECT
Research shows that some time in October 2002 a group of consultants hired by a major road-building consortium to investigate the ramifications of creating a new 550 kilometre toll road between Durban in KwaZulu-Natal and East London in the Eastern Cape presented the Draft Impact Report for public submissions.
The Consultants report had stated that there were no significant social or environmental hurdles preventing the construction of a new N2 Wild Coast Toll Free Road. The consultants report pointed to a wide range of potentially positive long-term spin offs, such as better access and better prospects for economic, tourist and industrial development.
The environmental issues such as that the road would carve a completely new section of almost 100 kilometres through the steep river valleys of the Transkei to create a new coastal route between the Wild Coast Casino scenery and Port St John’s were overlooked or ignored.
The numerous village residents along the length of the road who will be forced to resettle or lose grazing or farming rights to make way for new road interchanges, re-alignment or creation of road reserves and biodiversity interests were never considered in the report.
The consultants’ finding stated that the Wild Coast Spatial Development Initiative would create better road networks that would also increase the prospects for cash economy, jobs and economic development. However, the Consultants’ report made no mention of any comprehensive consultation process with all the interested stakeholders.
The Draft Impact Report listed five major companies outsourced for the Toll Road construction. They are namely; Group Five Construction, Grinaker-LTA, Hawkins Hawkins and Osborn, Steward Scott, and WBHO Consortium.
Members of the public were thereon given until 1 November 2002 to make submissions about the Draft Impact Report.
THE ENVIRONMENTAL ISSUE
The environmental issue under discussion here is the impact of the construction of the N2 Wild Coast Toll-Free Road and the link between people
and nature that was deliberately broken by the private developers.
The proposed road construction reveals a bitter struggle in which the rural communities’ desire to hold onto the lands of their ancestors is pitted against the private developers who are projected as forces that do not value the environmental, cultural and historical allegiance of the local inhabitants but are more concerned with economic motives.
Several spokespersons for environmentalists, community representatives, church leaders and civil society formations opposed to the Draft Impact Report and are questioning the environmental impact assessment findings. The majority of Non Governmental Organisations are challenging the proposed construction of the N2 Wild Coast Toll Free Road.
VIEWS OF ENVIRONMENTALISTS
Vance Martin, President of the WILD Foundation and Executive Editor of the International Journal of Wilderness advocates that the South African National Roads Agency Limited (SANRAL) should suspend any final decision on the proposed Toll Road construction until all the local communities who were never involved in the development of a comprehensive land-use plan are consulted.
Interviewed by the SABC 2 on 26 January 2003, John Costello of the Wild Coast Conservation Forum dismissed the N2 Toll Road by saying it will destroy the area where karoid sediments support extremely rare plant endemics of great antiquity which have no relatives on distant islands and continents of Gondwana origin. Costello also emphasised that the N2 Toll Road would be cutting a swathe along the cultural and scenic offerings that affects the Pondoland Coast that was recently granted World Heritage Status. “How can you justify blasting a highway through one of South Africa’s
most pristine areas? ” asks Costello.
Well-known local botanist Tony Abbot argues that there are many endemics in the Wild Coast that have just been discovered and there are countless plants in the grasslands still unnamed and waiting to be discovered. Abbot says the Wild Coast is one of South Africa’s magical areas. It is not only plants that will be disturbed by development but also the local rural communities that will suffer from the noise of the Toll Road traffic passing through their area.
THE POSITION OF CHURCH LEADERS
Bishop Geoff Davies of the Anglican Diocese of Umzimvubu, which extends from the Pondoland Wild Coast to the Drakensberg Mountains describes the go ahead for the proposed N2 Wild Coast Toll Road as illogical. He warns that there will be disastrous consequences, and he proposes that a commission should be appointed immediately to ensure the implementation of sustainable development and democratic decision-making.
“We should turn the existing R61 main road into the N2 Wild Coast Highway and establish and protect the eco-tourist potential of this area. Wild Coast is one of the 25 botanical hotspots and most incredible coastlines in the world,” says Bishop Davies.
South African Council of Churches (SACC) General Secretary, Dr Melefe Tsele, noted that their Biblical and historic mandate to be good stewards of God’s resources and to deal justly in the face of human, social and ecological challenges. This forces them to respond with deep concern to the suggestions contained in the Record of Decision.
In the letter which SACC addressed to the Minister of Environmental Affairs and Tourism dated 17 December 2003, it is illegal that the construction of the N2 Wild Coast Toll Road will not address adequately concerns on poverty eradication, sustainable ecological development or due civil empowerment.
Therefore, the SACC said they were obligated to urge the Minister to withhold approval for the road construction and appealed on behalf of affected communities that the provincial governments and local government authorities be given adequate time to consult and discuss the Draft Impact Assessment Report proposals with the affected communities.
FEARS OF COMMUNITY REPRESENTATIVES
Local people are up in arms and they accuse the government and private developers of doing things unilaterally as was the case during the building of the Wild Coast Resort when they were never consulted but were forcefully uprooted and displaced from their ancestral lands because of other people development motives.
According to Rev N M Gable of Lusikisiki, they fear that the toll road will divide communities and create numerous social problems. Further, he complains that the suggested wide range of potentially positive spinoffs, including employment opportunities to the local people were a pipedream because such promises were made when the casino was built on the banks of Umzamba River but to date very few locals have been gainfully employed.
STANCE OF CIVIL SOCIETY ORGANISATIONS
The Save Wild Coast Campaign (SWC), which is a loose coalition of over 200 organisations and individuals, have voiced opposition to the current route of the proposed N2 Toll Road too. SWC states it was environmentally insensitive for South African National Roads Agency Limited to obtain financial gains at the expense of the rural communities. They cited a 1996 Indaba called and attended by the then Minister of Water Affairs and Forestry, Prof Kader Asmal, in the area.
They allege it was resolved to establish a broadly acceptable decision-making framework for forestry planning, with a strategy aimed at meeting the needs and demands of community by establishing procedures that will empower the rural people.
Several other member organisations have voiced concerns that the government dealings have shown no insight into environmental ethics, bio-diversity protection or economic justice.
According to SWC, the consultation, if any, was so minimal that even the Pondoland King, Mpondompini Sigcawu, was excluded from the process. Wild Coast communities have concluded that the project was forced upon them without the due consultation process. Because the mining of iron ore and titanium of the sand dunes was proposed on the Wild Coast, fast, reliable and efficient transportation mode was needed to ferry the resources to East London industries.
In a letter dated August 2004, the SWC calls for the South African National Roads Agency Limited to offer a public apology to the people of South Africa for false impressions arising from the ambiguous full-page advertising on the proposed N2 toll road placed in various newspapers, including “The Mercury”, “Daily Dispatch”, and “ Sunday Tribune” in February and March 2004.
The Save Wild Coast campaign have also proposed that South African National Roads Agency Limited transfers the two billion rands earmarked to construct the two Msikaba and Mtentu bridges to be spent on developing and upgrading the infrastructure of Pondoland for the benefit of her communities.
They say 90% of the area is made of plantations; therefore, the money should develop agriculture and train and equip the Pondoland people with skills for sustainable development.
Rehema White, the Acting Dean of Research at the University of Transkei says relocating and finding alternative land for uprooted communities caused by building the proposed N2 Wild Coast Toll Road would be complex under the communal land ownership structure, and the local communities should start preparing themselves for new transport strategies.
The Wild Coast local communities’ anger has fostered the creation of a community-based empowerment initiative called the Wild Coast Empowerment and Monitoring Project (WEMP).
Accordingly, the Wild Coast Empowerment and Monitoring Project aims to help the rural communities develop the capacities and strategies as well as skills for both the sustainable utilization and equitable distribution of the land and other national resources along the Wild Coast.
Wild Coast Empowerment and Monitoring Project says there should be a institutional capacity building of local community structures to ensure co-ordinated and effective local structures such as participation and active involvement in the local government process. WEMP argues that having well-informed communities will help influence the government policy on land tenure legislation on the simultaneous movements towards both traditional forms and elected institutions.
WEMP’s argument is that there is a lack of viable institutions to champion and take custody of communal land rights because there are still unaddressed complaints about the Wild Coast Spatial Development Initiative (WCSDI) that were launched in 1996 to attract investment in the area. The Department of Environmental Affairs and Tourism has championed eco-tourism as its flagship for economic development since 1994 but there is nothing tangible in this direction, says WEMP.
Development Bank of Southern Africa analyst Julie Clarke says there is no convincing evidence to prove that the Wild Coast proposal is in the interest of the local communities. Clarke challenges the notion that big bridges and fast roads automatically bring development and warns that the days of getting away with poor development proposals before selling them on the grounds of “job creation” are over. She argues that there are several questions that investors have to answer to and that these questions have not been answered in the existing documentation presented by developers to date. “Building a freeway through the global hotspot of bio-diversity will not only have an impact on the endemic ecology but will also deflate the opportunities to uplift local communities through promoting the region as an eco-tourism destination,” warns Clarke.
SOUTH AFRICAN NATIONAL ROADS AGENCY LTD
Writing in the “Business Report” dated 16 October 2003 SANRAL Chief Executive Nazir Alli dismissed all the various stakeholders’ concerns and media statements about the Environmental Impact Assessment Report as ill-informed and baseless. “There is a general misrepresentation with no foundation to remark that the proposed highway is being planned by an almost secret community of road engineering contractors, planners and the South African National Roads Agency Limited. The process of planning, financing, designing, constructing and maintaining is subject to extensive legislation that requires comprehensive public participation, open to public tender scrutiny and adjudication of more senior tribunals, including our courts of law” explained Alli.
In addition, according to South African National Roads Agency Limited Marketing Manager, Connie Nel, the N2 Wild Coast Toll Free Road should be viewed within its proper context of furthering sustainable development and improving the quality of life of our citizens. Therefore, added Nel, it as for the above reasons that the Wild Coast Toll Free Road was identified as one of the areas for strategic development in accordance with the Government’s Spatial Development Initiative (SDI) strategy. “The inefficiencies of the transport sector and the lack of a proper road network in many pars of South Africa have been identified as major impediments to economic growth and development, as well as to national and international trade.
The construction of the highway was to fast-track the delivery of goods and services, access to employment opportunities and household access to consumer goods since all the above depended on transport, and more particularly roads” said Nel.
The Hibiscus Coast Municipality website, where the Wild Coast area falls, insists that all the environmental planning frameworks were followed properly before the construction tender was awarded to the five toll road constructing companies.
East London Buffalo City and Umthatha Chamber of business fully supported the toll road but opinion was divided among the smaller Eastern Cape municipalities.
Mbashe municipality criticised the location of the toll plaza next to poor communities while the Kei municipality and Nyandeni municipality were non-committal over the proposed toll free road.
The eThekwini Municipality’s Transportation Advisory Board dismissed new toll roads driven by private sector interests. Its website reads “The eThekwini Metro is planning to restructure its public transport system and has not taken into account the proposed toll road”.
BUSINESS GROUP
Businesses trading from the Joyner Road Interchange (Isiphingo-Durban) felt the location of a major toll plaza on their front doors could push up costs by at least R 750 000 00 a year, says South African Breweries District Manager Greg Foreman. Foreman added that 50% of their staff lived south of the toll plaza; therefore, their transport costs would escalate and the value of the company’s business would decline because of its proximity to a toll plaza.
The Chairperson of the Ogwini Taxi Association, M E Mkhize, says taxi operators would have no option but to increase fares. Durban Chamber of Commerce representative Colin Butler said the building of toll roads in remote rural areas was likely to yield little revenue and said proponents of the proposed highway should be aware of the dire consequences which can be attributed to a lack of extensive consultative processes.
SOCIO-HISTORICAL CONTEXT OF THE AREA
People that reside along the stretch of Umzimvubu River, Umtamvuma River and the Umzamba River regard the Wild Coast area as part of their cultural heritage. Even when many rural households were forced to re-settle at the nearby villages of Bizana, Port St John’s and Lusikisiki when large tracts of land were turned into the Wild Coast Resort and Casino, they have always related to it as the resting lands of their ancestors.
The Wild Coast area is situated on the Lower South Coast and falls under the Hibiscus Coast District Municipality under the Ugu Regional Council in KwaZulu-Natal and it stretches into Port St John’s and beyond to the Eastern Cape.
According to the 2001 national census, Statistics South Africa and the Independent Electoral Commission records, the area known as Umzamba to the local African inhabitants, covers approximately two hundred and fifty (250) kilometres of coastline, two (2) district municipalities, seven (7) local municipalities, twenty (20) wall-to-wall municipal wards, four (4) regional authorities, about thirty (30) tribal authorities and their respective administrative areas total about 12 000 households.
The local community is a mix of IsiZulu-speaking and IsiXhosa-speaking people as the area was on the edge of a cross-border region between the provinces of KwaZulu-Natal and Eastern Cape.
Since the Municipal Demarcation Board delimitation of ward boundaries in 2000 and the subsequent local government elections, KwaZulu-Natal governs the area.
BIOPHYSICAL CONTEXT
The Wild Coast has pristine vegetation which have been identified by the South African National Parks (San Parks) and the Wildlife and Environmental Society of South Africa (WESSA). The Wild Coast area is seen as the last remaining habitant of its kind on the continent.
Despite its critical challenges the area faces regarding the proposed N2 Wild Coast Toll Free Road, her scenery remains untapped in terms of economic, social and sustainable environmental development.
Local people link the proposed development of the N2 road in the Wild Coast area to plans by Trans-World Energy and Minerals to extract titanium and iron ore resources from the Xholobeni sand dunes in the not too distant future.
CONCLUSION
When Minister Marthinus van Schalkwyk decided to uphold appeals against the construction of the N2 Wild Coast Toll Free Road, he cited ‘extensive and inappropriate links between the consultants, Bohlweki Environmental company that had compiled the EIA, the Group Five Developers, and the Wild Coast Consortium’ for breaches that had been highlighted by the environmentalists and civil society institutions the previous year (The Mercury 14 December 2004). Therefore, the critical challenge facing all stakeholders and the wider South African public is to-re-visit the country’s supreme legislation, the S.A Constitution Act 108 of 1996.
The Constitution establishes that negative impacts on the environment and on the people’s environmental rights should be anticipated and prevented, and where they cannot be altogether prevented, at least should be minimised and remedied. Weighing and balancing the pro’s and con’s of the obligations and rights of both the environment and the welfare of the people, it becomes imperative that the democratic government principles of EAT (i.e ethical, accountability and transparency) should be followed at all times. Failure to uphold these cardinal principles of our Constitution remain critical aspects as we deepen the pillars of a democratic culture in South Africa. SANRAL, as the government representative, should take the blame because finding the wider civil society institutions challenging the proposed N2 Wild Coast Toll Free Road in unison proves that the due processes as enshrined in the Constitution was never followed.
We should address the dilemma posed by the need for economic development dictates on the one hand and the need to preserve and conserve environmental imperatives on the other by using the ideal approach of transparent consultative processes.
Engaging communities at all levels or across the board in their respective contexts would help to enhance the achievements of the Millenium Development Goals, the 2002 World Summit on Sustainable Development resolutions and the principles of the UN Declaration on Sustainable Development.
Writing in Caring for the Earth-South Africa. A Guide to Sustainable Living (WWF, 1997: 41) John Yeld warns readers that “We must not burden later generations with an ecological debt that will condemn most of them to an even more precarious poverty stricken existence than that endured by millions of people today”.
REFERENCES
1. The Mercury, 17 October 2002; The Mercury, 17 June 2003
2. SABC 2 Interview, Sandra Herrington, 26 January 2003
3. Business Report, 16 October 2003
4. The Mercury, 14 December 2004
5. SACC Public Policy Liaison Unit, 17 December 2003
6. SANRAL presentation (undated)
7. WEMP presentation (undated)
8. The Herald, 16 January 2004 (http.www.epherald.co.za)
9. Caring for the Earth-South Africa. A Guide to Sustainable Living, Yeld.J, Stellenbosch: WWF,1997,41
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