Comments On Mayibuye Pda Application 24-11-2013

COMMENTS ON THE APPLICATION IN TERMS OF CHAPTER 2, 3, 4 AND 6 OF
THE KWAZULU-NATAL PLANNING AND DEVELOPMENT ACT NO.6 OF 2008

FOR THE CONSOLIDATION OF 21 PROPERTIES TO BE KNOWN AS ERF 1
MAYIBUYE AND SUBDIVISION INTO 225 SUBDIVISIONS AND A REMAINDER
TO FACILITATE THE PHASED DEVELOPMENT OF VARIOUS LANDUSES; THE
INCLUSION OF A SPECIAL ZONE INTO THE CAMPERDOWN TOWN PLANNING
SCHEME AND THE REMOVAL OF RESTRICTION OF TITLE ON VARIOUS
PROPERTIES THAT FORM THE MAYIBUYE COMMUNITY GAME RESERVE.
I comment on this application under the Kwazulu-Natal Planning and

Development Act No.6 of 2008 (“the PDA”) in my personal capacity. In
accordance with section 158(1)(a)(iv), I nominate to receive further
correspondence by electronic transmission.
For the past seven years I have submitted comments on environmental

impact assessments and planning applications in my capacity as a trustee
of the Preservation of the Mkondeni Mpushini Biodiversity Trust (“PMMB
Trust”). The primary goal of the PMMB Trust is to preserve the ecological
and environmental integrity of the area for the communities living in the
vicinity of Pietermaritzburg in KwaZulu-Natal. Its objectives are inter alia to
facilitate and support sustainable community driven development
initiatives within and adjacent to the area. The proposed Mayibuye
Community Game Reserve aligned with the objectives of the PMMB Trust
and therefore the concept was supported. However, there were many
contradictions in the report which were confusing and could mislead the
affected community as to the true benefit of the project to them.
Comments from the PMMB Trust on the Environmental Impact Assessment

Report are attached in Annexure A. The financial benefit of the
development to the community is relevant to both the environmental
assessment and the planning application. I examined the planning
application to establish whether the issues which were confusing in the
environmental assessment process, were spelt out clearly in the planning
process. Although the benefits are still not clear, what has come to light
seriously undermines the possibility of the amaXimba community enjoying
the financial benefits generated by the development. Two properties which
play a significant role in wealth generation in the game reserve, have
been transferred from the Mayibuye Community Trust (“the Trust”) to a
company in which the community appears to have no stake. In terms of
the Settlement Agreement the sale of the properties is unlawful.
Furthermore, the proposed sale of property from the Trust in terms the
Lease Agreement with Pamish Investments (Pty) Ltd (“Pamish
Investments”) also contravenes the Settlement Agreement. The
transactions that have taken place also throw doubt on the validity of the
Environmental Authorisation for the development. The sale of land
dispossesses the community once again and perpetrates past injustices.
These matters must be brought to the attention of the community and the
authorities and addressed before the planning application proceeds.
Approval of the application in the absence of addressing these issues will
invite an appeal.
Before examining the legality of the transfer of land from the Trust, I raise
a point in limine. The application does not comply with section 2 (d) of
Schedule 1 of the PDA. The Registered Owners Consent found in Annexure
3 is a letter from Pamish Investments authorising Rob Kirby and Associates
to make the application in terms of the PDA. Pamish Investments are not
the registered owners of land in the development. Without the written
consent of the Trust, this application is incomplete.
The transfer of Remainder of Portion 184 of the Farm Vaalkop and

Dadelfontein No. 885 (“Portion 184”) and Portion 11(of 3) of the Farm
Lange Hoop No. 1032 (“Portion 11”) to Mayivive Developments (Pty) Ltd
contravenes the conditions of the Settlement Agreement (Appendix 32 of
the application). According to the Settlement Agreement, the land is held
in ownership by the Mayibuye Community Trust on behalf of the
amaXimba community subject to the terms of the agreement. Clause 4.4
deals with the prohibition of sale of the restituted land. Clause 4.4. states
that “It is recorded that restoration of the subject land arises from the
restitution claim and the State has acquired the subject land for the
purpose of land reform. It is therefore recorded that no person may,
without the written approval of the Minister (my emphasis) sell, exchange,
donate, lease or otherwise disperse of the subject land or any portion
thereof after the registration thereof in the name of the Trust”.
Furthermore, clause 4.4.2 of the agreement states that “the Claimants
shall not sell or dispose of restored property to anyone after restoration. In
the event of the Community intending to sell the Property, the State shall
have the right of first refusal” (my emphasis). The sale of the properties
does not have the required consent of the Minister and contravenes the
conditions of the Settlement Agreement.
Parmish Investments has the option to purchase any of the properties from
the Trust provided the aggregate area to be acquired does not exceed
10% of the total property leased. The Lease Agreement does not
acknowledge the prohibitions on the sale of restituted land in clause 4.4 of
the Settlement Agreement. The sale of property from the Trust in terms of
the Lease Agreement contravenes the conditions of the Settlement
Agreement.
Information in the planning application challenges the validity of the

environmental authorisation for the Mayibuye Community Game Reserve.
Pamish Investments is the authorisation holder of the Environmental
Authorisation. According to section 2 of the authorisation for
DC22/0048/10, the 21 properties on which the development is situated are
owned by the Trust. Documents in the PDA application contradict this
information. Portion 184 and Portion 11 were added to the proposed
development during the course of the environmental assessment phase.
They were supposedly included in the lease agreement between Pamish
Investments and the Trust. The properties were added without a formal
amendment to the application. Evidence in the planning application
reveals that the properties were not owned by the Trust, nor were they
included in the lease agreement with Pamish Investments. The properties
were purchased by Mayivive Developments (Pty) Ltd from the Trust on 24
November 2009 and 27 November 2009 respectively. These transactions
took place before the lease agreement between Pamish Investments and
the Trust was signed. Their inclusion with Mayivive Developments as title
holder threatens the validity of the Environmental Authorisation.
Portion 184 and Portion 11 owned by Mayivive Developments (Pty) Ltd are
significant properties in the proposed development. The African Bird of
Prey Sanctuary is situated on Portion 184. The development node at the
entrance off the Lion Park Road will be constructed on Portion 11 adjacent
to the African Bird of Prey Sanctuary. The node includes the entrance with
an office and gatehouse, a Lifestyle village of 120 cluster homes, a frail
care unit of 20 suites, a commercial node consisting of a craft centre,
garden centre, nursery and tea room, an animal rehabilitation centre and
a lodge of 80 suites. The community does not appear to have a stake in
the company that owns these properties and will not benefit financially
from the development. If that is the case, the community has once again
been dispossessed of its land and the benefits from owning land.
The community has 50% shareholding in Pamish Investments but appear

unlikely to generate wealth from this company. The development node
involving Pamish Investments is proposed at the entrance near
Camperdown off the R103. The entrance is accessed via a proposed
underpass under the main railway line adjacent to Camperdown. In terms
of the planning application, there are restrictions placed on this node.
Development may only commence once the underpass has been
constructed to the satisfaction of Transnet and the Municipality.
Furthermore, if the underpass is not constructed, the intersection linking
the Mayibuye Community Game Reserve to the Lion Park Road will be
upgraded. It is not surprising that the first phase of the development will
take place at the Lion Park Road on Portion 11. It is unlikely that the
community will realise any financial benefits from the proposed
development node at the entrance to the reserve near Camperdown and
will not benefit from the development node on the Lion Park Road.
According to the Executive Summary, the two erven owned by Mayivive

Developments will be transferred to the Trust to consolidate all properties
under a single owner. There is no evidence in the application to support
this statement. In fact, the evidence strongly refutes this possibility. Firstly
both Pamish Investments and Mayivive Developments gave Rob Kirby and
Associates authority to make the necessary application in terms of the
PDA. Besides the fact that Pamish Investments is not the registered owner
of property in the development, the letters of authority are an indicator of
intent. Secondly, according to the Special Conditions of Approval in
Volume 2, a Development Agreement between Pamish Investments and
Mayivive Developments will be concluded by 31 December 2014. An
agreement of this nature would be irrelevant if the properties owned by
Mayivive Developments (Pty) Ltd were transferred back to the Trust.
In conclusion, without written consent from the Trust, Rob Kirby and
Associates do not have the authority to lodge this application. The
exclusion of Portion 184 and Portion 11 from the Lease Agreement
between the Trust and Pamish Investments has implications for the
KwaXimba community and threatens the viability of the development.
One of the purposes of the PDA which is found in the preamble to the Act
is to “promote a planning and development system that redresses the
historic injustices perpetuated by a fragmented planning and development
system”. The Mayibuye Community Game Reserve has the potential to
achieve this purpose. The Municipality is obliged to obtain clarity on
matters that threaten the success of the game reserve directly from the
community. It must conduct a public hearing in accordance with section
11(1) of Schedule 1 of the PDA and give notice of the hearing to all the
land claimants. Under the current circumstances, the conclusion to be
drawn from this application is that the people will be dispossessed again.
Nora Choveaux
Suite 165
P/Bag X6
Cascades
3203
Email: [email protected]
Cellphone: 082 771 6324

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COMMENTS ON THE APPLICATION IN TERMS OF CHAPTER 2, 3, 4 AND 6 OF

THE KWAZULU-NATAL PLANNING AND DEVELOPMENT ACT NO.6 OF 2008

I comment on this application under the Kwazulu-Natal Planning and

For the past seven years I have submitted comments on environmental

Comments from the PMMB Trust on the Environmental Impact Assessment

The transfer of Remainder of Portion 184 of the Farm Vaalkop and

Information in the planning application challenges the validity of the

The community has 50% shareholding in Pamish Investments but appear

According to the Executive Summary, the two erven owned by Mayivive

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