P a g e | 1

Riverside Park Report October 2014

This report was put together by Heather Oosthuizen with the support and backing of Maylene Turner, Herman Steyn (founding member of Clean Spruit) and Tim Hartwright (Chairman of the Braamfontein Spruit Trust). All parties to this report are active citizens particularly with regard to the preservation of the spruit. We are also grateful to have had the assistance and legal support of Mariette Liefferink (CEO of the Federation for a Sustainable Environment) throughout this process.

In terms of Section 32 of the NEMA and Section 38 of the Constitution of the Republic of South Africa anyone can act on behalf of the public and the environment and in the public interest respectively. The National Development Plan furthermore states that “active citizenry and social activism is necessary for democracy and development to flourish, to raise the concerns of the voiceless and marginalised and hold government, business and all leaders in society accountable for their actions”.

EXECUTIVE SUMMARY

In February 2013 a Service Level Agreement (SLA) was signed for a R4 459 318.45 park

development at Riverside

Lack of transparency and public participation

Massive dumping occurred on the site instead of the park furnishings described in the SLA

The validity of the SLA is questionable

There is no sign of the ‘Master Plan’ mentioned in the SLA

Low visibility caused by a steep ridge and berms created by the dumping = safety issue

JRA did not stipulate the requirement of berms (developers used JRA as an excuse)

A ‘huge volume of erosion’ has been noted in the development by Joburg City Parks and Zoo.

Alan Grant Holdings (PTY) Ltd have benefitted financially by offloading builders waste

directly in front of their shopping centre development instead of carting it to the landfill site

Alan Grant Holdings (PTY) Ltd commercial property owners are benefiting by using part of

the park as a truck turning circle.

Alan Grant Holdings (PTY) Ltd stand to benefit from parking spaces they have allocated in

the park design directly in front of their commercial property (without permission from

council)

Alan Grant Holdings (PTY) Ltd are supposed to pay the costs of the park ‘upgrade’ – this is

stipulated in Gauteng documents in terms of removal of restrictions on their former

residential property.

Surprisingly, the Service Level Agreement (SLA) is between Joburg City Parks & Zoo (JCPZ)

and the Bryanston East Community Forum (BECF), rather than Alan Grant Holdings (PTY) Ltd

BECF signed the SLA which stipulates that they are responsible for all costs associated with

development of the park – this contradicts what is stipulated in the Gauteng documents.

The Bryanston East Community Forum (BECF) are not legally compliant

The community is now being left to cover costs via BECF contributions, sponsorship and

donations

This development is illegal. See references to the NEMA, the Open Space Bylaws, the Waste

Management bylaws and the National Water Act under ‘Legal’ at the end of this document.

P a g e | 2

HISTORY OF THE OBJECTION

The SLA was signed on 28 February 2013. The first objections were recorded on 23 March 2013, less

than a month after the signing of the SLA. These objections were placed on the agenda and

discussed at the CPF meeting on the 4 April 2013. A site meeting was held on 5 April 2013 which

was attended amongst others by the chairman of the BECF, Mr. Ian Tumiel, and the ward councillor,

Vincent Earp.

We were informed by City Parks at a site meeting on 22 August 2013 that Joburg City Parks and Zoo

(JCPZ) had already put the development on hold pending an investigation. This date was prior to the

laying down of the pathway which is the only item of value that exists in the park to date. During

the time that the park development was on hold, Ian Tumiel of the BECF ignored instructions from

JCPZ and opted to continue with the development. The BECF began to lay down the pathway which

was near completion on 26 October 2013. When we enquired about the unexpected continuation of

development with Neil Jackson in the meeting held on 26 October 2013, he said that Ian Tumiel had

in fact rushed them to finish the pathway during this time. We have a recording of the meeting if

substantiation of the above facts given to us by the Jacksons (owners of Alan Grant Holdings) is

required.

Riverside Park - Johannesburg CGIS Map” from 2006

P a g e | 3

RIVERSIDE PARK - ACCORDING TO THE SLA

The SLA describes R4 459 318.45 worth of appropriate and desirable park furnishings. The design

and budget detail was put together by Habitat Landscape Architects. Mr. Boonzaier of the BECF

reported that the appointment of a landscape architect was a ‘requirement imposed on them by City

Parks’. It would seem as if the landscape architect’s required contribution to the project has since

been set aside. For example, they describe R32 180 worth of rehabilitation planting by the river,

R43 800 worth of grass blocks for the parking area, R175 000 worth of Wilson stone pre-

manufactured Turin Benches with smooth concrete finish, 20 custom games worth R120 000 with

concrete finish, ten braai units costing R50 000, R30 000 worth of litter bins and children’s play

equipment consisting of two custom made jungle gyms suitable for different ages valued at R70 000

each. Concrete table tennis, a chess game and large board game amounting to R25 000. Very

appropriate to this area is the R50 000 bird hide/viewing deck. This feature would have been a

welcome addition to this site. There are details of a turf valve irrigation for the rehabilitated areas

totalling R71 000 and automated irrigation for the entire site excluding the rehabilitated areas at a

cost of R436 700 and the list goes on.

Among the various invisible items, the community did not receive the 120 trees at a unit cost of

R1200 per tree, totalling R144 000 in the SLA. Instead we received 58 saplings worth approximately

R4060 from a wholesaler, or a total of R11 600 if bought from a retailer. We were informed by Neil

Jackson of Alan Grant Holdings (PTY) Ltd that the saplings were donated by a wholesaler, so the

actual cost was zero.

Some of these saplings are thorn trees, rather than the park and bicycle tyre friendly trees named by

Habitat Landscape Architects in the design. The saplings have been planted in unnatural straight

lines, grouping all the same tree types together, rather than the more natural clumps of different

tree varieties grouped together that Habitat Landscape Architects had in the design in the SLA.

The park design in the SLA shows a ‘planted embankment’ in the now flattened area which is

currently being used by the shopping centre node as a truck turning circle. The Google map on page

4 also reveals that the design of the pathway in the SLA does not resemble the shape of the

crumbling pathway that exists there today.

It is 19 months since the first objections were heard. One thing is clear, the community have not

received what was promised in the SLA. The community have received a mountain of builders waste

instead.

Photo’s of pathway taken on 12 October 2014 after recent repairs to the ‘1 year old’ pathway

P a g e | 4

Riverside Park design – (clearly readable version available).

Riverside Park – Google Map (end 2013) showing large river catchment area affected by Alan Grant’s

builders waste on both sides of Bryanston Drive.

P a g e | 5

SENSE OF PLACE

The one thing that we are not short of at Riverside Park is builders waste. Builders waste is

coincidentally the one item that was not included in any of the park designs, not mentioned in the

SLA and not disclosed to the community at any time.

This mountain of builders waste has altered the ‘sense of place’. This is a legal precedent

established in case law sent to Mr. Boonzaier by Mariette Liefferink CEO of the Federation for a

Sustainable Environment. ‘Sense of place’ refers to the spiritual aesthetic and therapeutic qualities

associated with an area. The kind of places we go to that enable us to revive our spirits, helping us

cope with the daily pressures we are subjected to. These places can be as overpoweringly large as

the Grand Canyon or as intimate as little valleys or streams. Sense of place is determined not only

by the place itself, but by the value that the individual gives it. It is something about a place that a

varying number of people could regard as something worth protecting.

Prior to the dumping at Riverside Park, sportsmen using the trail would have experienced the ‘sense

of place’ in this area of the Braamfontein spruit as an open highveld grassland, with regular sightings

of mongoose, heron, guinea fowl and other common wildlife species which are always exciting to

find in this urban environment. The river and the adjacent veld grasses form the natural habitat and

breeding ground for the dikkops, heron, lapwings and other shy ground nesting bird species. These

species are common to this area, yet they do not occur in the manicured suburban gardens nearby.

We derive a great sense of joy when we see mongoose, guinea fowl chicks and others so close to

home. Our spirits are lifted without having to drive out of the city. It’s all right here and it’s free.

We are so lucky to have this.

The River Rangers keep records of their wildlife sightings along the spruit. Among the incredible

birdlife and variety of furry creatures, their records include recent sightings of bullfrog and leguan.

The Braamfontein spruit with its variety of nutritious grasses, mammals, bird species, reptiles and

amphibians were not considered by those who offloaded their rubble and excavations onto this site.

The dumping that has occurred in this riverine grassland catchment area has destroyed some of the

ecosystem, thereby reducing the habitat which supports these creatures.

People running, walking or cycling along the popular Braamfontein Spruit trail used to be in full view

of the shopping centre and the road. The ‘sense of place’ in this area included a feeling of safety due

to full visibility. ‘Eyes on the street’ is sought after for informal surveillance in parks. The lack of

visibility caused by the overburden has introduced a safety issue.

Other aspects contributing to the ‘sense of space’ include the fresh air one experiences while

exercising. Doing the same exercises on the road, one has to contend with exhaust fumes and the

added stress of poor driving habits on our Joburg roads. It is no wonder this green lung running

through Joburg, the place we call the Braamfontein Spruit is enjoyed by so many people.

It is part of our South African law that the potential impact of a development on the ‘sense of place’

of an area must be considered.

P a g e | 6

THE SLOPE

The former gentle slope has been replaced by a narrow flat deck and a steep ridge running along the

bottom of the park which now poses a risk to old people and children as well as providing a hidden

area for vagrants. The steep ridge created by the dumping divides the once large open space in two

distinctly separate long thin ‘less useable’ strips of land, neither visible to the other unless you are

standing right at the top edge of the steep ridge.

The evenly spaced lines on the relief map give one an indication of the continuous gentle slope prior

to the dumping.

THE BERMS

The story relating to the berm changes every time the question arises, so we undertook our own

investigation and found out that Joburg Roads Agency did not request a berm at any time. JRA made

no specifications with regard to the park, only the road. JRA agreed to a traffic circle rather than

traffic lights as a traffic calming feature with non-mountable kerbs as a safety measure. This tight

little traffic circle slows the traffic down to 20kms per hour. Nowhere in South Africa do traffic

circles require berms. The unsubstantiated suggestion repeatedly put to us by the BECF, the ward

councillor and the developer of berms being required by JRA is not aligned with the truth and never

has been.

The Engineer from the traffic circle construction Mr. Simon Knutton of Knutton Consulting referred

to us by Jose Monteiro of Joburg Roads Agency confirmed that the berms did not appear in any of

their drawings pertaining to the traffic circle construction. We have an e-mail trail if anyone requires

substantiation of these facts.

P a g e | 7

Due to the height of the berm, the park is not visible from the road

This is the view of the park from the Braamfontein Spruit Trail showing some of the erosion

occurring along the ridge. The park is not visible from the river.

P a g e | 8

JCPZ’s Monitoring Unit sent to us a report about Riverside Park on 21 February 2014. This report

refers to a “huge volume of erosion” occurring along the steep ridge and other areas within the

‘park’ development. Erosion was never a factor in this area when this land gently sloped towards

the river.

The small community of vagrants below the ridge of the park appears to be thriving. It is a known

fact that vagrants move in to all the unsighted areas along the spruit, particularly favouring areas

which are close to shops. This part of the river always enjoyed full visibility from every angle - it no

longer does. The high ridge has created an ideal low visibility area for vagrants.

The necessity for visibility in parks cannot be emphasised enough, this is a worldwide park safety

recommendation. It is even more important in this country with our crime levels combined with the

tendency of our urban waterways to attract informal settlement. High visibility is absolutely

essential. JCPZ should know this.

Below this ridge lies the popular Braamfontein Spruit hiking/cycling trail. The high ridge hampers

one’s ability to escape danger and lack of visibility reduces one’s feeling of safety on the trail.

THE SERVITUDES

Aside from storm water and sewage servitudes running beneath the park, there is also a fresh water

pipe servitude that runs beneath the overburden. Since the dumping occurred on the site there

have been three burst pipe incidents. These burst pipes have caused a great deal of erosion which

flowed right through the protected riparian zone. This contravenes the National Water Act no 36 of

1998. (see ‘legal’ below)

This photo shows erosion from the burst pipes, also revealing some of the rubble beneath the

subsoil. To remedy this, the developers have continued to pile earth onto this area, the most recent

addition to this area was witnessed on 20 August 2014.

P a g e | 9

Photo showing the erosion from the overburden which flowed through the riparian zone.

Another concern with these burst pipes is the increased depth at which the council workers have to

get to - in order to carry out repairs. An engineer pointed out to us that the depth at which some of

these pipes now lie requires extra support for safety. This problem became apparent when the side

of the hole caved in just after a worker climbed out of it last year. The additional supports that are

now needed for all future repair work come at an increased cost to the council.

The photo on the left shows the location of the pipe that burst in the area currently being used as a

truck turning circle. The photo on the right shows a crevice that eroded deep beneath the new park

surface.

Judging by the line of burst pipe incidents, it appears as if this servitude runs directly beneath the

parking area in the park design which extending down through the area currently being used as a

truck turning circle.

P a g e | 10

Newspaper clipping giving an idea of the current depth of the fresh water pipe servitude.

P a g e | 11

PUBLIC PARTICIPATION

If the BECF had entered into honest public participation, thereby disclosing their intention to offload

this amount of builders waste onto this riverine catchment area, forever altering the gentle slope

and removing the river view, they would have been inundated with complaints from residents.

No-one objected to former BECF director Russell Kleyn’s original idea of a park development

contemplated in 2010 because it sounded beautiful and it still does. His description of the park in a

BECF newsletter included the following words, “with play-facilities for children and park benches

where people could sit and enjoy the river, indigenous trees, plants, shrubs and grasses would be

planted to beautify the area”.

The original idea included the enjoyment of the river which is what this area is about. The amount

of overburden that has been offloaded on the site excludes the river from the park area. The

developers of this park have not provided the ‘play-facilities for children’ or ‘park benches where

people can sit and enjoy the river’. The river is neither visible from the road nor from the park. The

river is now only visible if one stands at the edge of the ridge that runs along the bottom of the

mound of eroding builders waste.

A newsletter with details of a park with pretty furnishings sent out in 2010 cannot be considered full

and open ‘public participation’ for the massive dumping of subsoil and rubble that occurred in 2013.

If they had carried out Mr. Kleyn’s original idea, there would not have been any objections to this

day. Somewhere between Russell Kleyn’s newsletter in 2010 and the actual signing of the SLA in

2013, the plan changed and the community were not informed.

Please refer to the National Environmental Management Act Chapter 5

23.(2)(d) - for the legal requirement of public participation in ‘Legal’ below.

Public Participation should have been a measurable and tangible part of what JCPZ required of the

community forum before the signing of the SLA. Public Participation should include visible,

measurable feedback from the public by way of questionnaires covering the main points of the

design. All of this was done for a park development that was proposed in Greenside in 2013, why

not here?

We obtained a fairly good indication of how the community felt about what they saw at Riverside

Park in March 2013 when a petition was circulated against a similar dumping exercise planned for

the Bantry Park area, 2kms upstream from Riverside. Many people expressed their negative views

about the dumping that had occurred at Riverside and were eager to sign the petition against the

Bantry Park Development because of what they saw at Riverside.

More evidence demonstrating how the community felt about this park development was expressed

in a letter to the Sandton Chronicle by Rose Johnson (Friends of the Field & Study), published on 31

May 2013 called ‘beware developers bearing gifts’.

P a g e | 12

COMMERCIAL GAIN ON PUBLIC LAND

The property directly opposite the park, currently being rented to Builders Express, is owned by Alan

Grant Holdings (Pty) Ltd. Alan Grant Holdings have applied to upgrade this entire shopping centre

node. This is the same Alan Grant Holdings (PTY) Ltd - that offloaded the excavated soil and rock

from the basement of their shopping centre development onto the park and riverine catchment

area.

By dumping the rubble from the road construction and the shopping centre basement

excavation onto the Braamfontein Spruit catchment area directly in front of their building

site, Alan Grant Holdings (PTY) Ltd were spared the high cost of transporting builders waste

and the further charges for offloading it within the designated landfill site.

Alan Grant Holdings (PTY) Ltd have allocated parking places directly in front of their

commercial property in the park design and the shopping centre is currently using the

eastern end of the park as a truck turning circle.

Some in the community are referring to this exercise as a ‘land grab’.

P a g e | 13

Photo 1 taken from the park showing parking spaces in front of commercial property. Photo 2

shows truck turning circle (there were no people in the park when these photo’s were taken –

October 2014).

WHO IS SUPPOSED TO PAY

The SLA states that the BECF are responsible for the costs of the park development and Ian Tumiel of

the BECF has signed the agreement on this basis. There is no mention of sponsors or the need for

sponsorship in the SLA or supporting documents, yet in the most recent reports, both the BECF and

JCP are claiming that certain items will now be dependent on sponsorship and donations. This gives

the impression that Alan Grant Holdings (PTY) Ltd are leaving it to the community to complete the

park development.

This contradicts the attached Gauteng documentation relating to these properties.

In the Gauteng documents it is stated that the park upgrade is to be paid for by the owners of Erf:

1618, Alan Grant Holdings (PTY) Ltd. I quote, “the development of the open space situated along the

Braamfontein Spruit between River Road and Brook Avenue, as approved and to the satisfaction of

the municipality and City Parks, and for the cost of the owner of Erf 1618 Bryanston” - that is Alan

Grant Holdings (PTY) Ltd.

The attached Gauteng documentation stipulating that the developers are to pay the costs of the

park upgrade were given to the developers in terms of the ‘removal of restrictions’ on their

residential property Erf: 1618 to rezone for commercial use in order for them to proceed with their

shopping centre development.

On 26 October 2013, Alan Grant Holdings (PTY) Ltd were asked about details of the costs they had

incurred in the development of the park to date, in response, Neil Jackson showed a financial

breakdown with details of civils and earthmoving. We wish to make it clear that civils involved in the

traffic circle construction and the excavation and disposal of builders waste from their shopping

centre basement on Erf: 1618 is a cost that they naturally would have incurred during the course of

their construction. Alan Grant Holdings (PTY) Ltd cannot surely expect the community to accept

their civils and earthmoving as costs relating to the park?

The pathway and the saplings were donated. The only contribution made by Alan Grant holdings

(PTY) Ltd appears to be builders waste.

P a g e | 14

THE LEGAL STATUS OF THE BRYANSTON EAST COMMUNITY FORUM (BECF)

It was in our eventual meeting with Mr. Boonzaier on 19 December 2013 where he openly discussed

the legal status of the BECF. Mr. Boonzaier stated that the BECF had not been a ‘legal’ organisation

since the other directors had resigned, leaving behind only himself and Ian Tumiel as directors. He

explained that in order for a section 21 company to be ‘legal’ it has to have a minimum of 3 directors

and the BECF only has two. The BECF was not a legal organisation at the time that the SLA was

signed.

Mr. Boonzaier explained to us that Ian Tumiel had acted alone in the signing of the SLA without Mr.

Boonzaiers knowledge. He admitted that he had first heard of the BECF’s involvement in the

dumping exercise that occurred in front of the Riverside Shops when he was invited to the meeting

on the 26 October 2013, some 8 months after the signing of the SLA. He also said, not once but

twice during our meeting that he had only seen the SLA for the first time two weeks prior to our

meeting in December 2013. This means that Mr. Boonzaier, the only other director of the BECF saw

the SLA for the first time 10 months after it was signed by Mr. Ian Tumiel.

Mr Boonzaier also stated the BECF has not held regular meetings or had an AGM since the time

when Russell Kleyn was chairman. Mr. Boonzaier used the word ‘collapsed’ to describe what has

happened to the BECF since Russell Kleyn’s departure.

A recording of this meeting is available if anyone requires proof of these claims.

THE SERVICE LEVEL AGREEMENT (SLA) AND LACK OF MANAGEMENT BY JCPZ

Page 14 of the SLA, Clause 4.1.6 states that monthly progress reports are to be provided to JCPZ by

the BECF with photographic evidence.

Page 7 of the SLA, Clause 5.1 states that the BECF will ensure that development of the park will be in

accordance with the ‘Master Plan’.

Page 7, Clause 5.2 states that the scope of the work shall be - as outlined in the ‘Master Plan’.

A reasonable person would assume that a Master Plan for this kind of development would include a

time frame within which one could expect work to be completed. None of the parties to the SLA

have been able to produce the Master Plan, nor provide the community with a time frame within

which the park development will be completed. There has been a lack of transparency surrounding

this project from the outset. See in ‘legal aspects’ below: National Environmental Management Act,

1988 – Part: 2 Section 31

To quote from the ‘comments and recommendations’ part of the report done by JCPZ’s monitoring

unit, “It is suggested that the Service Level Agreement be presented to JCPZ so that it can establish

what the conditions are, including the Master Plan of the park for consideration”.

Is it possible that JCPZ, the custodians of our green spaces, the same people who are supposed to be

guiding and approving of the process every step of the way in accordance with the Master Plan with

P a g e | 15

monthly progress reports including photographic evidence are not in possession of the Master Plan?

Is it true to say, there is no Master Plan?

Perhaps this explains why there has been no structure, no accountability and no ownership of this

project from JCPZ’s side. It appears as if they simply handed the land over to the developers and set

the SLA aside.

In our meeting with Mr Boonzaier on 19 December 2013 he said that the SLA between JCP and the

BECF was vague. I quote Mr. Boonzaier, in reference to the SLA, “if the document doesn’t reflect the

intentions of the parties then it’s not an enforceable agreement”. He also said, “if the parties are not

‘ad idem’ about what the terms of the agreement are, even if it is in writing, then it is not a valid

agreement’.

(‘Ad Idem’ definition: Meeting of the minds. When two parties to an agreement (contract) both

have the same understanding of the terms of the agreement. Such mutual comprehension is

essential to a valid contract.)

LEGAL

1. Clause 12.1.2 of the SLA states that the BECF will indemnify JCPZ with respect to legal

expenditure reasonably incurred in connection with any actions or claims emanating from

the development. We would like to point out that according to the NEMA it is not only the

developers but also those who allow the damage that are liable for the remediation of

environmental damage. Costs can be recovered from the developers as well as JCPZ. See

chapter 7(8)(a) of the National Environmental Management Act, 1998 – NEMA

2. City of Johannesburg Metropolitan Municipality - Waste Management By Laws

Definitions

“Building Waste” means all waste produced during the construction, alteration, repair or

demolition of any structure, and includes building rubble, earth, vegetation and rock

displaced during such construction.

“Commercial business waste” means waste generated on premises used for non-residential

purposes and includes (d) Building waste.

“damage to the environment” means any pollution degradation or harm to the

environment whether visible or not;

“dump” means to dispose of waste in any manner other than permitted by law.

“nuisance” means any injury, harm, damage, inconvenience of annoyance to any person

which is caused in any way whatsoever by the improper handling or management of waste,

including but not limited to, the storage, placement or disposal of waste.

Nuisance includes ‘visual impacts’.

“pollution” means any change in the environment caused by:

(a) Any substance; or

(b) Noise, odour, dust, including the storage or treatment of any waste or substance,

construction and the provision of any service, whether engaged in by any person or

P a g e | 16

organ of state. If that change has an adverse effect on human health or wellbeing or on

the composition, resilience and productivity of a natural or managed ecosystem, or on

material useful to persons, or will have such an effect in the future.

“public place” includes any footpath, sidewalk, open space, park, etc, in the council’s

jurisdiction, and any road, place, thoroughfare however created which is in the undisturbed

use of the public or which the public has the right to use or the right to access.

3.(1) The main objects of these by-laws are to –

(a) Ensure that waste is avoided or where it cannot altogether be avoided, minimized, re-

used, or disposed of in an environmentally sound manner.

4. A generator or holder of waste generated by his or her activities or activities of those

working under his or her direction must: (a) manage such waste so that it does not

endanger health or the environment or create a nuisance.

12.(1) when any site development plan is submitted to the council for its approval, the

person making the submission must simultaneously submit:

(a) A building waste management plan setting out the manner in which building waste and

other waste to be generated in the course of construction will be managed, treated,

collected, transported and disposed of.

(b) No site management plan may be approved before the building waste management

plan has been approved by council.

(c) When submitting a building waste management plan for approval, the owner of the land

or developer must pay a refundable deposit of an amount determined by the council or

authorised official in terms of a formula that will be set out from time to time, and which

amount will be sufficient to cover the costs of cleaning up or managing building waste if

the building waste management plan is not complied with.

** Please note**

According to the E-services - City of Johannesburg Building Plans System (BAS) no plans have been

submitted for erf 1618 Bryanston. Last checked on 21 October 2014.

14. All generators of building waste must ensure that:

(d) until disposal, all building waste, together with the containers used for the storage,

collection or disposal thereof, is kept on the premises on which the waste was generated;

(e) the premises on which the building waste is generated, do not become unsightly and no

nuisance is caused by accumulated building waste;

(f) any building waste which is blown off or washed away from the premises is promptly

retrieved.

56 (2) A person who abandons any article, is liable for any damage which that article may

cause as well as for the cost of removing that article, notwithstanding the fact that such

person may no longer be the owner of that article.

P a g e | 17

58(1) (a) Any person who fails to comply with any provisions of these by-laws;

Is guilty of an offence and liable on conviction to a fine or imprisonment for a period not

exceeding 6 months.

3. The following notes on wetlands and riparian area’s obtained from the Department of

Water Affairs and Forestry, South Africa. This is relevant to Riverside Park because of the

wetland area at Riverside Park which is now covered on three sides by builders waste, as

well as the riparian area which has been affected and will continue to be affected by erosion

from the builders waste. Dealt with in chapter 1 of the NEMA.

Riparian areas and wetlands are sensitive areas which perform important ecological and

hydrological functions affecting biodiversity and water resources. Wetlands display

characteristics resulting from prolonged saturation and often display the presence of water

loving plants, (hydrophytes). The primary indicator of a wetland is the vegetation.

Wetlands have real economic worth, they make direct contributions to national economies

and human wellbeing. Their primary task is to process water, acting like giant sponges, they

hold back water during floods and release it during dry periods. Wetlands help reduce flood

damage and prevent soil erosion. Wetlands act as natural filters, removing pollutants

from the water, they are natural storehouses of biological diversity. Studies reveal that

over 50% of South Africa’s wetlands have already been destroyed, one of the main culprits

has been urban development. Continued wetland destruction will result in less pure water,

less reliable water supplies, increased severe flooding and more endangered species.

The soil strata in catchment areas and riparian zones is important as this may have been

significantly affected at Riverside Park. Riparian zones protect and enhance water

resources and support biodiversity of plant and animal species.

4. National Water Act no 36 of 1998. Chapter 1 clause 2, ensuring that the nation’s water

resources are protected, used, developed, conserved, managed and controlled in ways

which take into account amongst other factors –

(d) promoting the efficient, sustainable and beneficial use of water in the public interest.

(g) protecting aquatic and associated ecosystems and their biological diversity.

(h) reducing and preventing pollution and degradation of water resources.

National Water Act no 36 of 1998, Chapter 19 - prevention and remedying effects of

pollution to the water course and catchment area. The owner of land, person in control of

land or person who occupies land on which any situation exists which causes, has caused or

is likely to cause pollution of a water resource must take all reasonable measures to prevent

any such pollution from occurring or continuing to occur (2) including (d) eliminate any

source of the pollution; (e) remedy the effects of the pollution; and (f) remedy the effects of

any disturbance to the bed and banks of a watercourse. This includes damage done within

the catchment area of the watercourse as outlined in the rest of Chapter 19.

P a g e | 18

National Water Act no 36 of 1998. Definition of ‘pollution’ includes any direct or indirect

alteration of a physical water resource so as to make it (a) less fit for any beneficial

purpose for which is may reasonably be expected to be used; or (aa) to the welfare, health

or safety of human beings or to (dd) property.

National Water Act no 36 of 1998. Definition of ‘protection’ in relation to a water resource,

means – (a) maintenance of the quality of the water resource to the extent that the water

resource may be used in an ecologically sustainable way’; (b) prevention of the degradation

of the water resource; and (c) the rehabilitation of the water resource.

** Please note**

This includes riparian habitat and wetland areas both of which have been negatively impacted by

the Riverside park development.

5. Environmental rights are a fundamental, justifiable human right which must be accorded

appropriate recognition and respect in the administrative processes in our country.

6. Mariette Liefferink sent Mr. Boonzaier case low pertaining to ‘sense of place’, the case she

forwarded was, Mineral Development Gauteng Region and another v. Save the Vaal

Environment and others 1999 (2) SA 709 (SCA) at 715C, the Supreme Court of Appeals.

7. Ms. Liefferink also referred Mr. Boonzaier to case law where it is established that the

threshold of “significant” is low. In her words, “it follows hence that the erosion of the

berm and possible silting of the river may be “significant”.

8. Public Open Spaces By-Laws of the City of Johannesburg Metropolitan Municipality:

Chapter 2 - MANAGEMENT AND ADMINISTRATION OF PUBLIC OPEN SPACES

4 (1) Public open spaces must be managed, and where appropriate developed, in the interests of the whole community, and in determining the interests of the whole community –

(c) the interests of other living organisms which depend on public open spaces must be taken into account.

4 (2) Public open spaces must be managed in an environmentally sustainable manner.

Public Open Space By-Laws - Chapter 3 – PROHIBITED CONDUCT

P a g e | 19

Waste

1. No person may within a public open space –

(a) deposit, dump or discard any waste, other than in a receptacle provided by the Council for that purpose; or

(b) pollute or deposit any waste or thing in a manner which may detrimentally impact on a water body.

Vehicles

2. No person may within a public open space –

(a) except at times specified and on roads or pathways provided by the Council, drive, draw or propel any vehicle other than a bicycle;

or

(b) park a vehicle in a public open space, except in designated area or other area where parking is otherwise permitted by the Council.

**please note**

To our knowledge there have been no applications to council for approval of the allocated parking

spaces appearing in the park design in the SLA or rental of the large flat area they created which is

now being used as a truck turning circle by this shopping centre in the course of their daily

commercial activities.

Vegetation and animals

3. (1) Subject to the provisions of subsection (2), no person may within a public open space –

(a) disturb, damage, destroy or remove any tree, shrub or other vegetation;

(b) plant any vegetation;

(c) alter the slope or drainage pattern so as to interfere with the access of water, air or nutrients to any tree or other plant;

(d) disturb, damage or destroy any bird nest or egg;

**please note**

The slope and drainage pattern have been significantly altered and the ground nesting birds

habitat has been destroyed by the earthworks.

Municipal property and erection of structures

4. (1) Subject to the provisions of subsection (2), no person may within a public open space –

P a g e | 20

(a) disturb the surface of any land, whether by digging, undertaking any earthworks or otherwise;

Public Open Space By-Laws - Chapter 5 - CO-OPERATIVE MANAGEMENT AGREEMENTS

Entering into agreements

(2) The Council may not enter into an agreement in terms of subsection (1) (b) unless it reasonably believes that entering into such an agreement will promote the purpose of these By-laws.

(3) The Council must monitor the effectiveness of any agreement entered into in terms of subsection (1), in achieving the purposes for which it was entered into and may cancel the agreement after giving reasonable notice to the other party if the Council has reason to believe that the agreement is not effective, or is inhibiting the attainment of the purpose of these By-laws.

9. National Environmental Management Act, 1998 – (NEMA) Preamble:

Everyone has the right to have the environment protected, for the benefit of present and future generations. Through reasonable legislative and other measures that –

Prevent pollution and ecological degradation; Promote conservation’ and Secure ecologically sustainable development.

Definitions: ‘Pollution’ means any change in the environment caused by – substances, noise, dust… etc emitted from any activity, including the storage or treatment of waste or substances, construction and the provision of services… ‘Sustainable development’ means integration of social, economic and environmental factors into planning, implementation and decision-making so as to ensure that development serves present and future generations. NEMA - Chapter 1 (3) Development must be socially, environmentally and economically sustainable.

(4) (a)Sustainable development requires the consideration of all relevant factors including the following:

(i) That the disturbance of ecosystems and loss of biological diversity are avoided, or, where they cannot be altogether avoided, are minimised and remedied;

**Please note** It has been established that no environmental impact assessment was done.

(g) Decisions must take into account the interests, needs and values of all interested and affected parties, and this includes recognising all forms of knowledge, including traditional and ordinary knowledge.

P a g e | 21

**please note** Considering the security risks that this overburden has introduced, it appears as if none of the affected parties needs were considered, including cyclists, hikers, runners and church groups.

(r) Sensitive, vulnerable, highly dynamic or stressed ecosystems, such as wetlands, and similar systems require specific attention in management and planning procedures, especially where they are subject to significant human resource usage and development pressure.

**please note** Gauteng acknowledged the need for the development to stay 32 metres away from the wetland. These instructions were ignored by JCPZ and the developers who continue to dump additional builders waste around the wetland a year later.

NEMA - Chapter 5 23.(2) The general objective of environmental management is to - (a) promote the integration of the principles of environmental management set out in

section 2 into the making of all decisions which may have a significant effect on the environment.

(b) identify, predict and evaluate the actual and potential impact on the environment. Socio-economic conditions and cultural heritage. The risks and consequences and alternatives and options for mitigation of activities, with a view to minimizing negative impacts. Maximising benefits. And promoting compliance with the principles of environmental management set out in section 2; (c) ensure that effects of activities on the environment receive adequate consideration before actions are taken in connection with them;

(e) ensure that adequate appropriate opportunity for public participation in decisions that

may affect the environment. **please note** Public participation for the development that stands there today did not occur.

P a g e | 22

NEMA - Chapter 5 24. (1) In order to give effect to the general objectives of integrated environmental management laid down in this chapter. The potential impact on (a) the environment Of activities that require authorisation or permission by law and which may significantly affect the environment, must be considered. Investigated and assessed prior to their implementation and reported to the organ of state charged by law with authorizing. Permitting, or otherwise allowing the implementation of an activity.

**Please note** The paperwork from the Gauteng Department of Agriculture and Rural Development (GDARD) and the Department of Economic Development make mention of a ‘park upgrade’. Nowhere in these documents is a massive amount of overburden in this river catchment area contemplated. This same paperwork mentions the need for a 32 meter buffer zone from the edge of the wetland, and we can see that the dumping at Riverside Park is right up against the wetland on three sides. In the same paragraph about the wetland the Department of Agriculture and Rural Development say, and I quote, “should the proposed development trigger listed activities 11, 18 and 27 of the Government Notice Regulation 544 of 2010, a basic assessment process must be followed in order to obtain environmental authorisation for these activities”. The paper work also notes that all relevant legislation and requirements of other government departments, (i.e. National, Provincial and Local) must still be complied with. The relevant legislation and requirements of other departments, e.g. the public open space by-laws and the Waste Management By-Laws have not been complied with. No environmental impact assessment was done in order for proper environmental authorisation to have occurred.

NEMA - Chapter 5 24.(3) (c) assessment of the potential environmental impact of activities must, notwithstanding any other law, comply with subsection (7). (7) (c) investigation of mitigation measures to keep adverse impacts to a minimum as well as the option of not implementing the activity; (7) (d) public information and participation, independent review and conflict resolution in all phases of the investigation and assessment of impacts. NEMA - Chapter 7 – Compliance, enforcement and protection Duty of care and remediation of environmental damage 28. (1) Every person who causes, has caused or may cause significant pollution or degradation from occurring, continuing or recurring, or, in so far as such harm to the environment is authorised by law or cannot reasonably be avoided or stopped, to minimise and rectify such pollution or degradation to the environment. (3) The measures required in terms of subsection (1) may include measures to (a) investigate, assess and evaluate the impact on the environment: (d) contain or prevent the movement of pollutants or the causant of degradation: (e) eliminate any source of the pollution or degradation: or (f) remedy the effects of the pollution or degradation. (5) (b) recover from the person for whose benefit the expropriation was affected all costs incurred.

P a g e | 23

(8)Subject to subsection (9), the Director General or provincial head of department may take reasonable measures to remedy the situation. (a) any person who is or was responsible for or who directly or indirectly contributed to the pollution or degradation or the potential pollution or degradation: (d) any person who negligently failed to prevent (i) the activity or process being performed or undertaken: or (ii) the situation from coming about: (9) The Director General or provincial head of department may in respect of the recovery of costs under subsection (8). Claim proportionally from any other person who benefited from the measures undertaken under subsection (7). (11) If more than one person is liable under subsection (8). The liability must be apportioned among the persons concerned according to the degree to which each was responsible for the harm to the environment resulting from their respective failures to take measures required under subsections (1) and (4). NEMA - Part: 2 Section 31 – Access to environmental information and protection of whistle-blowers (a) every person is entitled to have access to information held by the State and organs of

the state which relates to the implementation of this Act and any other law affecting the environment.

NEMA - Section 32 – Criminal Proceedings We would like to point out that damage caused to the environment and negligence on the part of those authorities who have failed to prevent damage is a criminal offence in South African Law.

10. The public rely on our city authorities to carry out their jobs. JCPZ have failed to manage the

Riverside Park development in terms of the SLA. ‘Contract Law’ applies to the Riverside SLA as

well as JCPZ’s contract with the City of Joburg. In view of what has happened at Riverside park,

we question whether or not JCPZ, the custodians of our green spaces are meeting the terms of

their agreement/contract with the City of Joburg.

P a g e | 24

CONCLUSION

This objection has come from a place of concern and is entirely based on physical evidence and the

facts presented to us by JCPZ, JRA, Alan Grant Holdings and the BECF. Everything in this report is

substantiated. If there is any doubt about the claims in this report, please ask and we will provide

the necessary proof.

AS RATE PAYING CITIZENS WE REQUEST THE FOLLOWING:

We wish for JCPZ to fulfil their mandate to the City of Johannesburg, by claiming this land

back from the developers and managing this park development.

Alan Grant Holdings (PTY) Ltd should pay for all remedial action and rehabilitation of this

property in accordance with the Gauteng documents.

The Berms are too high and the ridge is too steep, the gentle slope needs to be restored,

thereby bringing back the view and the safety.

The natural fauna and flora should be considered during the restoration of this area. We will

gladly supply a list of birds and animals spotted in the area over the last few years.

The Braamfontein Spruit half a kilometre upstream from Riverside Park ….end of report