The Battle for Rich Views
he who pays the piper calls the tune
- Seemingly aware that the Constitutional Court of South Africa had in 2010 pronounced that obstruction of view is no ground for denying approval for a new development, certain individuals keen to preserve their rich views of the City and its environs have found a vehicle to stop a development – heritage.
- But instead of launching a high court application for review of the City of Cape Town’s decision, the ‘Rich View Brigade’ has opted to hide behind a claimed ‘public benefit organisation'.
- This decision has left the lawyers involved in the structured funding arrangement in a tricky position with the Financial Intelligence Act and maybe possibly in further problems for the secret funder with the South African Revenue Services.
- If the Association at the forefront of the legal battle isn’t legally registered, how would the benefactor(s) address the expenditure in their financial books?
Three of the South Africa’s leading law firms are set to square off over the legality of a proposed R1 billion mixed-use development in Cape Town.
The hearing that was initially scheduled to start this month at the Western Cape High Court, but has now been pushed to February 2018, will ultimately determine if the developer, Buitengracht Properties (Pty) Ltd., can resume work after a court injunction served on it together with the City of Cape Town stalled the development at the edge of Bo-Kaap.
The subsequent review application is seeking to overturn Executive Mayor, Patricia de Lille’s decision to green-light the project dubbed by objectors as ‘Monster R1b development’.
The interdict was granted to three entities; Bo-Kaap Civic and Ratepayers Association, 35 On Rose Body Corporate and a Fabio Todeschini, all represented by attorneys from the law firm, ENSAfrica.
The City and the Mayor are represented by men and women from Fairbridges Wertheim Becker, while the learned fellas at Werksmans Attorneys are representing Buitengracht Properties (Pty) Ltd.
In the filed court papers under Case No. 7031/17, the first applicant, Bo-Kaap Civic and Ratepayers Association, is described as “a voluntary association representing the interests of Bo-Kaap.”
To prove its status, the Association has presented a copy of its Constitution to the high court.
But, is a claimed copy of an entity’s constitution enough to prove its legal status? That’s one of the questions we’ve been struggling with since we encountered this group.
The second applicant is 35 On Rose, a Body Corporate established under the Sectional Titles Act No. 95 of 1986, and owns a Sectional Title property along Rose Street in Bo-Kaap. They technically share a street with the proposed development though on the opposite ends.
The third applicant, Todeschini, is an architect, city planner, urban designer, heritage practitioner, and a Bo-Kaap resident.
In a joint Notice of Motion, the three applicants informed the court that they had instituted the proceedings in their respective names and on behalf of the residents of the Bo-Kaap “…who are adversely affected by the impugned decisions but lack the means to institute these proceedings in their own names, and in the public interest including the interests of the residents of Cape Town and the Western Cape.”
Though we have read and examined through every paragraph of the pleadings as contained in the records presented to the high court (over 1500 pages), uSpiked will leave the honourable high court judges to decide on the merit or otherwise of the application now scheduled for hearing from February 27, 2018.
Nothing has however stopped us from examining the legal status of the players involved. We have also been looking for possible motives behind the vigorous objections to the billion-rand development.
In the eleventh paragraph of his founding affidavit, Osman Adam Shaboodien of Bo-Kaap Civic and Ratepayers Association (BCRA) emphasises that the applicants are not opposed to the development on Buitengracht, or near the Bo-Kaap.
“They are opposed, however, to a building of massive, and indeed unprecedented proportions in an area of the City with a rich history, heritage and culture, which will be out of place in the existing urban context, and will permanently degrade the rich history, heritage and culture of the Bo-Kaap.”
On the eighteenth paragraph of his affidavit, Shaboodien declares that the affected people lack the means of instituting a similar application in the high court. Hence BCRA and the two others have taken charge. But does the Association itself have the means?
Our preliminary investigation revealed shadowy hands using the applicants to safeguard possibly personal and undeclared interests.
Can the Association afford it as the deponent for the First Applicant has alluded to? Has it evaluated the interest and motivation of its benefactor? For the Association, the end may simply be justifying the means.
In a written ‘resolution’ of BCRA’s management committee that has been filed in the high court, it is declared; “BCRA have concluded or are about to conclude with another party a written agreement (“Agreement”), inter alia, in terms whereof BCRA is indemnified and held harmless against any and all cost associated with the Proceedings (provided that ENS are engaged as the attorneys of record).” They have however not presented a copy of this said Agreement to the high court. Why haven’t they got the honourable court into their confidence if the Association is truly representing the interest of the Western Cape residents?
Neither have they presented the same to the “residents of Cape Town and the Western Cape” whom they have claimed to represent.
Put simply, the BCRA is warning the respondents that it will not be liable for whatever costs should the application fail with cost. Secondly, could the shadowy figure(s) behind this application be using the Association to avoid being publicly identified or held liable for any resulting costs? Thirdly, the explicit condition to use the services of ENSAfrica borders on anti-competitive behaviour and is suspiciously convenient.
Shouldn’t the City’s ratepayers be concerned about the expenditure of defending this application, especially if there’s no clear prospect of ever recovering the costs should the application fail. At the same time, we believe and agree that anybody not satisfied with decisions of public officials should not be barred from challenging the same simply for lack of funds.
Attorneys, just like financial institutions, are compelled by Section 43B of the Financial Intelligence Centre Act No. 38 of 2001, as amended, to register with the Financial Intelligence Centre. This is an international financial tool adopted with the aim of safeguarding against money laundering and illicit financial transactions.
Attorneys are required to ‘know their clients’ by asking for and filing proof of address and proof of identification (ID/Passport for natural persons and certified copies of registration certificates for juristic persons). These requirements are mandatory. In the case of ENSAfrica’s first client in this matter, whose particulars did the the attorneys at ENSAfrica file with the Financial Intelligence Centre? Were they those of the benefactor(s) or of the Association? If it were for the latter, did the Financial Intelligence Centre accept just the copy of the provided constitution?
Having fruitlessly searched for the registration particulars of BCRA, on August 24, 2017, uSpiked sought answers from ENSAfrica attorneys of record on this matter, J Zieff and J Levetan.
Among the things we requested to know was the identity of the individual(s) bankrolling the application, and why the benefactors opted to remain shielded. We also reminded the attorneys of their obligation as far as Financial Intelligence Centre Act is concerned. We also wanted to know why the secret benefactor(s) had insisted on ENSAfrica as legal counsel in the matter. Were there some confidential arrangements between the firm and the benefactor(s) that the public should not be knowing of?
Our electronic communication confirmation system showed the email was received and forwarded to a few people, but Attorney Zieff and his colleagues at ENSAfrica opted to exercise their rights to remain silent (possibly to avoid incriminating themselves as far as FICA law is concerned).
So, we decided to do what we do best. We set out to excavate and unearth the secret benefactor(s) at the core of the application.
There's one individual whose name kept popping up with every heavy stone we lifted. Petra Leidenberg Wiese, a 51-year-old German national with South African permanent residency.
Wiese is an extraordinary woman who owns multiple properties in some of Cape Town’s towering buildings. Her favourite units are penthouses or as high up as possible.
Jointly with two other individuals whose identities are known to uSpiked, Wiese acquired her first property in the City on May 19, 2007. That first acquisition is located at 71 Loop Street and was purchased for R1.75 million.
On December 12, 2007, she purchased another unit within the same Sectional Title Scheme (SS 71 Loop Street) for R2.2 million.
Her subsequent purchases were seven units at another Sectional Title Scheme (SS The Square On Tenth) on October 11, 2010. We are yet to find any direct bearing on her assets at The Square On Tenth to the objection she would have against the Monster R1b Development.
Weise’s next acquisition was on May 19, 2015, and is connected to the second applicant on this high court review application. She bought a 619sqm penthouse at SS 35 On Rose for R17.5m.
From this penthouse one would have an unobstructed view of the entire city centre and parts of the Atlantic Seaboard. On a clear day, the occupants and guest at the penthouse can even see Robben Island. But, those rich view will be blocked if the proposed development proceeds.
Her final acquisition within the City is dated August 16, 2015. She bought two units at Sectional Title Scheme (SS Taj Cape Town) and another two at SS The Adderley, for a total of R9.15 million.
It required some machination and smart legal minds to place the four units from two different Sectional Titles under a single Title Deed No. (ST19422/2015).
The units at Taj Cape Town would also be obstructed by Buitengracht Properties’ proposed development.
Armed with that information, we approached the Bo-Kaap Civic and Ratepayers Association seeking clarification on the identity and motivation of their benefactor, Petra Leidenberg Wiese.
Below are the six issues we raised:
- (Regarding the aforementioned ‘resolution’ of Bo-Kaap Civic & Ratepayers Association’s management committee that has been filed in the high court) - The Resolution does not indicate the date, time and place of the meeting that resolved as stated. When did the ‘Management Committee’ meet?
- The second item in FA02 talks of Bo-Kaap Civic & Ratepayers Association being in talks or concluding some agreements with a 3rd party to sponsor the application. Could you confirm or deny that the 3rd party is Ms Petra Wiese?
- Why did the sponsor place a condition that you had to deal with Edward Nathan Sonnenbergs Inc. (ENS), and not any other law firm?
- What is the value of the sponsorship? And how would it be declared to the Receiver of Revenue, considering that we have been unable to obtain your official registration particulars? The only item accompanying your Review Application is a copy of your Constitution. Could you provide us with Certificate of Registration of your ‘Public Interest Body’?
- Do you believe that the indemnity as stated in the Resolution would shield your grouping (the signatories to the resolution) should the Application fail with costs? Or has the sponsor provided you with a written undertaking of underwriting all subsequent related costs?
- If the sponsor is indeed Ms Wiese, did she disclose any other possible conflict of interest that would motivate the Application?
Our questions weren’t taken kindly by BCRA’s Jacky Poking. Poking signed off the Association’s response to us in her capacity as ‘Secretariat’.
Below is her response in full:
“Your email below refers. We also refer to your email addressed to our attorneys. This response covers both of your emails.
“The BoKaap Civic and Ratepayers Association is one of the 3 original applicants who have launched a review in the Western Cape High Court under case number 7031 / 2017 against various decisions made by the City in favour of a developer. Heritage Western Cape has also joined the proceedings as a 4th applicant, and is seeking the same relief against the City and the developer.
“You have not explained why you are investigating our Association, or what your interest is in the matter. It is also unclear why you would choose to focus on the aspects that you have (which are in no way newsworthy or of wider interest), as opposed to the substance of the case (which is of considerable civic importance). Given the nature of your past reporting on the Association, as well as the peculiar focus of your current enquiries, the strong inferences which arise in respect of your recent enquiries and the motivation therefor are disturbing to say the least. The overwhelming impression that we have is that you are pursuing the agendas of others who are encountering legitimate opposition by the members of the public to proposed development.
“It is noteworthy that you have not even attempted to motivate any entitlement to the further documentation or information sought. You are anyway not entitled to any such information or documents; and we are certainly not responding to any of your questions.
“It moreover appears to us that you do not have even a basic grasp of the various issues you refer to. If on the basis of the questions you are posing, you were to make the assertions that you are clearly aiming at, that, in our view, would be negligent.
“If you are genuinely interested in the litigation, we would suggest that you focus on the real issues in the case, and focus on the matters of real public significance as opposed to conducting misguided enquiries and seeking information which is both irrelevant to the litigation and of no wider importance, and to which you are also anyway not entitled.”
It's true that on July 14, 2017, Heritage Western Cape (a provincial government heritage resources authority established in terms of Section 23 of the National Heritage Resources Act No. 25 of 1999 by the Member of the Executive Council responsible for cultural affairs in the Western Cape), through the Office of the State Attorney, filed a Notice of Motion seeking to be allowed to be enjoined in the matter as an applicant.
The Office of the State Attorney and the Heritage Western Cape are funded by taxpayers. It’s reasonable for them to take matters on behalf of taxpayers. However, Heritage Western Cape's late entry in the suit is of public interest.
It appears Vantage Properties (Pty) Ltd., a subsidiary of Buitengracht Properties (Pty) Ltd. that is driving the development had approached Heritage Western Cape for approval of the proposed development.
An official letter dated May 11, 2016, and signed by Chief Executive, Mxolisi Dlamuka, informed the company that it didn't require permits from Heritage Western Cape.
“It is noted that the development site, which involves two erven and does not exceed 5000 square meters in extent, does not trigger listed activities in terms of Section 38(1) of the National Heritage Resources Act (NHRA No 25 of 1999) and, while it abuts two proclaimed Provincial Heritage Sites, it does not require a permit in terms of Section 27(18) of the NHRA. HWC is therefore a commenting body and not an approving authority.”
One year later, Heritage Western Cape is now telling the high court the developer actually needed approval from it for the project.
In the fourth paragraph of Heritage Western Cape’s Founding Affidavit, Dlamuka informs the high court; “…the proposed development on Erf 144698 and Erf 8210 Cape Town may not take place without a permit granted by HWC in terms of Section 27(18) of the National Heritage Resources Act, 1999 (NHRA).”
In paragraph 31 of his declaration to the court, he now states; “…HWC has since concluded and submits that this statement was not correct, and that approval is indeed required in terms of Section 27.”
“HWC was of the view that the Development was inappropriate, as it would have a detrimental effect on the heritage significance of both Riebeeck Square and the Bo-Kaap. HWC therefore strongly objected to the Development," says Dlamuka in his declaration.
There are however some unconfirmed reports that the decision by the Heritage Western Cape was pushed by some academic who has for a long time held some sway within the Council of the state authority. This would most likely become clearer when the hearing starts next February.
uSpiked’s journalists will attentively follow the proceedings at the high court when the hearing starts. We shall also be very keen to understand the responsibility the HWC will take for their belated objection or rather, their earlier failure to perform their duties when the matter first went before them.
How are taxpayers affected when a state agency fails to perform its duties timeously as per the relevant laws? Should the executives of HWC be held personally liable for any costs that may arise due to their initial failures?