The decision to take the legal route is not one that the Save Plett Alliance took lightly. In coming to this decision the opinions of many local and oversees residents were canvassed both through our online opinion survey on the ratepayers website and through manned desks placed at strategic points throughout Bitou.
The response was an overwhelming 98,8% against the development with voters feeling so strongly that they pledged financial support to appoint legal counsel. Every written response to the survey has been recorded and the CEN environmental consultants’ website was accessed and the written responses from all who officially registered themselves as interested and affected parties, analysed.
PRIMARY CONCERNS HIGHLIGHTED
BY THE CEN SOCIAL AND ECONOMIC IMPACT ASSESSMENTS
- The conservatively projected four-year construction phase will turn the Central Beach precinct into a massive construction site for its duration. Imagine the noise, the pollution, the traffic and all the mess and upheaval associated with this huge development! This will impact negatively and dramatically on tourism and thus the Plettenberg Bay economy and will lead to closures in the hospitality, restaurant and retail industries with concomitant permanent job losses. The consultants state that it is foreseen that a mere 420 temporary jobs will be created for our unskilled unemployed residents during the lifespan of the project. Thus the conclusion we draw is that more jobs will be lost than gained.
- The possibility of the development will seriously impact on property values and will continue to do so as long as the possibility even remotely exists.
- The existing Plettenberg Bay municipal infrastructure is already under severe strain and will not be able to cope with the proposed development without massive upgrades and consequential cost to the ratepayers.
- The high-density housing component of the proposal will almost certainly lead to a sharp rise in crime and particularly organised crime. This will be especially true during the construction phase.
- An influx of job seekers from surrounding areas such as the Eastern Cape and further a field will be unavoidable. On project completion these people will possibly stay on thus exacerbating the unemployment problem.
- The two massive concrete block breakwaters of over 3.3m above mean sea level will be so aesthetically displeasing and environmentally intrusive that it will totally destroy much of Central Beach.
- The current Environmental Impact Assessment will take years to complete and as long as this is ongoing, the desperately needed and overdue upgrade of facilities on Central Beach will remain frozen and the potential for job creation will be stymied as well.
- The continuous dredging and maintenance cost of any harbour along the Cape coast is so high that it cannot be financially sustainable without a large commercial and housing component. The effective utilisation of the harbour by pleasure craft might be largely restricted to the Christmas and Easter holidays which could result in an unavoidable financial shortfall.
- The commercial harbour is envisaged to encourage the return of the fishing fleet with its accompanying spillages, fumes, odours, diesel engine noises and the bright lights of the chokka boats in the small hours of the morning. This is to be situated next to the Otto du Plessis bridge, opposite Beau Rivage, impacting both River Club and Beau Rivage negatively. A new sewerage works is planned behind the commercial harbour.
- The ratepayers cannot rely on Bitou Municipality to extricate itself from the historical relationship it formed with Western Cape Marina Investments as long ago as 2002 without severe collateral damage. The fact that WCMI is still in Bitou after all these years despite extensive legal representations, a multitude of meetings and formal demands from the ratepayers, underscores this fact.
We had to conclude that ratepayer sponsored legal intervention is pivotal to rid Plettenberg Bay of this most serious threat. Many people are of the opinion that we can only fight the case against Western Cape Marina Investments on the basis of environmental concerns.
It is true that there are formidable environmental obstacles facing the developer but unless there is strenuous opposition every step of the way, the developer may well bypass such obstacles with promises of “mitigating measures” and thus acquire approvals over time.
THE QUICKEST BUT STILL COMPLEX ROUTE
So our best bet is a quick legal intervention that will stop the whole process in its tracks at this early stage as there appears to be many legal irregularities.
WHY SO EXPENSIVE?
A legal contest is never straight forward. The success or failure of any legal contest is determined by the quality and experience of the legal team bringing the case but more importantly by the extent and quality of the preparation done by them.
The complexity and time span of the history of the matter in dispute determines the amount of research required, firstly to understand the facts and secondly to find the documentary evidence, legislation, case law and precedents that support the arguments on which the case is founded.
Legal fees are always based on time spent, whether on research, consultation with clients or witnesses, strategising, mediating or in study to find the facts, applicable legislation and case law.
The hourly rates charged by lawyers or advocates are based on industry norms determined by the level of their qualifications, experience and crucially by their record of success in their field of speciality.
The legal history of the small boat harbour development spans more than twenty years. The burden of proof in legal matters dictates that the facts in dispute have to be corroborated by documentary evidence in a logical and sequential order.
The most critical part of this history also spans the period when our country enacted new legislation to underpin the move to a constitutional democracy. This is true particularly in the fields of municipal and environmental legislation. This complicates the legal case to a massive extent.
THE BEST STRATEGY AT THIS STAGE
As the EIA process will take years, the most costly and time-consuming strategy would be to fight the issue on environmental grounds. The strategy of our lawyers ENS (Edward Nathan Sonnenbergs) is to contest the matter on the legality of the tender process and allied to that, on the legality of the agreement between Western Cape Marina Investments and the Bitou Municipality.
Before we proceed to court, all efforts will be made to bring this matter to an acceptable conclusion out of court through discussion and negotiation, failing which the next step will be to try and find solutions through alternative dispute resolution methods.
DO WE HAVE A CASE?
After studying a mountain of historical documents, pre and post 2000 legislation, case law and precedents, the ENS team is confident that they have found significant departures from prescribed processes and breaches by the parties of the heads of agreement, to build up a convincing case.
They are also confident that they can take the matter to court successfully and that they can back up our case with relevant legislation, case law, common law and precedents.
In line with the strategy of settlement before litigation, described above, Cecil Gelbart of ENS has already been in communication with the Bitou Municipality legal team and is awaiting their reply.
In the interim, the preparation of the environmental option is still underway. The current draft scoping documentation that also had to be studied to prepare the case, makes up nearly a thousand pages of complex and highly technical detail in itself.
AND WHAT ARE THE EXPECTED COSTS?
The ENS cost projection for a negotiated settlement comes to around R400 000. If the matter should progress to formal mediation, the projection is upwards of R700 000. If litigation around tender and contract law should be required, their projection is upwards of R1 million. However, a contest on environmental grounds will cost significantly more.
As stated, the most costly part of the legal process is the preparatory phase. This is nearing completion for the primary ENS strategy described above and we trust that it will obviate the need to follow the lengthy and highly expensive environmental route. Importantly, we are now prepared for whatever eventuality presents itself.
We have to urgently appeal to our community and the hundreds of concerned people who pledged contributions, however large or small, to make their contributions now. This is crucial to enable us to continue to use the legal expertise of the ENS team.
Do we simply want to acquiesce and let the developer have his way? Surely, it is our responsibility to ensure that we nurture and protect our most precious assets and public open spaces for future generations.
Bank: Standard Bank
Branch: Plettenberg Bay
Account Name: Save Plett Alliance
Savings Acc no: 387355316
Branch Code: 051001