Published:  2015-11-22 Views:  2311
Author:  Fanie
Published in:  The Dam/Die Dam

22 November 2015

The residents of Hartbeespoort are generally well informed about what is happening in our town. There are, however, certain subjects on which our residents were never well informed and of which the public remains largely ignorant. The activities on the Hartbeespoortdam foreshores is one of these subjects. We will strive to better balance the reporting in our town on these subjects and to give the public access to the full story, including a better chance for individuals to state their side of a story if they so wish. Balanced public reporting provides opportunity for all parties mentioned in an article fair chance to comment. In this way more open and fear-free discussion in our town should be encouraged - especially about controversial subjects which impacts us all.

There was an article in the Harties local media during mid-October, which reported on the decision of the Schoemansville Oewerclub to suspend commercial boating activities. Furthermore, support was expressed for this action, though also harsh criticism against the club management. The opinion was expressed that  the club management does not know what is going on and took the decision for the wrong reasons. This harsh stance of the media against the club raised eyebrows. Some statements made in this article are still subject to proper scrutiny.

We will now strive to make more sense about the Oewerclub issue, while the same will be done for similar areas of apparent confusion on the rest of the foreshore later on.

Many of the foreshore managers undertake commercial activities from their foreshore areas. Why then, is there pressure being placed on the Schoemansville Oewer to suspend such activities and not on the others?

Schoemansville Oewerclub saw a steady growth in its turnover over the past years with the 2014 / 2015 year showing a 16% growth. Commercial boating contributes greatly towards this healthy growth. This enables the Club to maintain their section of foreshore in such a pristine condition. The Club limits the number of boats that may commercially operate. It is understood that commercial boats must be managed in such a way that the rights of the other visitors to the Club not be adversely affected. By summarily suspending the commercial boating the finances of the club may be adversely affected. There is a question about the rights of the current boat operators, while free market trading principles may be in jeopardy, where the public may choose the best boat offering around the dam.

It is not at all clear on which basis the Club is pressurised to suspend commercial activities. The Constitution of the Club clearly allows for commercial activities under Item 9. It is also not clear why this pressure is not rather directed by the complainant (and diverted by the Club) to the rightful property owner, namely the Government and its agent, the Department of Water Affairs and Sanitation (DWS). It is also not clear why all commercial activities are not suspended and only boating.

It is clear that the decision to suspend boating activities is highly contested by Club members. It is also clear that this decision followed an after an attorney's letter was written to the Club. We are aware of other recent communication to other foreshore stakeholders with a similar gist. We have also been informed that the Club decided to play it safe to give the foreshore property owner - DWS - chance to sort out claims of general business rights. It is thus seen – rightly or wrongly - as a temporary measure in the wake of pressure and confusion.

The correspondence is available. The bulk of this attorney's letter is an explanation of another letter. It is clear that this other letter which the attorney's refer to is a letter written in 2008 by the Director-General of DWS to an attorney from the same firm, where DWS indicated their opinion that no general business rights exist on the foreshore as have been proposed. The DG further stated in this letter that their client and the North-West Premier of that time have been wrongly advised in this regard.

There is also reference in the attorney’s letter to Clause K of the original sales agreement with Hendrik Schoeman, as well as Notarial Agreement M99/1922. It is unclear what these documents have to do with commercial boating at Schoemansville Oewerclub. These documents will be scrutinised in a follow-up article. Then each reader can decide for him/her -self.

It is stated in the letter to the Club is that the area under their control has been reserved for use by Schoemansville title deed holders and that there will be "implications" if they continue with commercial boating activities. 

Not mentioned in the attorneys letter is direct reference to the Crown Grant. This seems to be the basis of their claim that this area has been reserved for Schoemansville title deed holders and not for commercial boating activities.

See our previous article where we have made the actual Crown Grant available to public scrutiny:

This Grant was made by the Union of South-Africa where the use of a section of the Schoemansville foreshore was fixed. The Crown Grant allocated 4 distinct area for the following uses:

Area 1:

Set aside for Hendrik Schoeman and his assigns for their personal use. This area has since been subject to a private sale and was developed as the local Snake Park.

Area 2:

Set aside for use by the Transvaal Yacht Club. This use continues till this day.

Area 3:

The area between the Transvaal Yacht Club and the Schoemansville Oewer Club. Set aside for commercial boating activities. Today the use of this ground is not as originally intended. Various different parties are currently utilising this ground. A section of this property has also been camped off as a bird sanctuary.

Area 4:

Set aside for use by the Schoemansville title holders as per the right embedded in their title deeds, namely free access to the dam. Currently this area is under management of the Schoemansville Oewerclub.

It must be noted that there is a property in-between Areas 1 and 2, which has recently been the subject of dispute between the Snake Park and the Transvaal Yacht Club. The case was fought up to the Appeal’s Court, where the Appeal's Court decided in favour of the Transvaal Yacht Club, including a finding that the North-West Provincial Authority did not have the right to allocate a servitude over this section of ground. This property thus reverted back for use by Transvaal Yacht Club.

The mid-October media article mentioned made a surprising statement about the rights of the Provincial Government on our foreshores. This will be discussed, though suffice to mention here that DWS is currently in negotiations with the North West Government regarding – according to DWS officials - the only 2 properties on the foreshore where the Provincial Government still retains rights, namely Oberon and Kommandonek.  Also according to DWS officials the last contract with the Local Authority was cancelled 2 years ago and that DWS has taken back direct management on all RSA ground on our foreshores, based on the Water Act of 1998.

It is clear then that the Central Government is still the rightful owner of at least the last three sections of properties described above, but that they must take cognisance of the original Crown Grant. The right of law of the title deed holders is also very strong and must be incorporated in any future solution for the Schoemansville (and Meerhof) foreshores. The Water Act allows for exercising of rights which existed 2 years prior to the act.

The current situation with respect to the granting of leases by DWS to the various foreshore managers will be explained (as well as the reasons given by DWS for the delay in allocating of these leases). DWS officials indicated that only commercial lease contracts will in future be entered into and that they do not want to enter into non-commercial Caretaker Agreements. It is thus very likely that DWS will allocate a lease to Schoemansville Oewerclub, based on commercial grounds and which will allow the Club to continue with commercial boating activities. The lease agreement with the Club, however, has to differ from leases with other foreshore managers in that the Crown Grant and property title deeds must be taken into account.

It is clear that Area 3 of the Grown Grant is not currently utilised as originally intended and that this alternative use closed the area for the intended commercial boating activity. Should the original intention of the Crown Grant in this regard then be interpreted to disallow commercial boating and duly so enforced by DWS for area 4, then it should also be enforced for Area 3 and a place be allowed for commercial boating activities within Area 3. It can, however, be argued that the intention of the Crown Grant seems to be not so much disallowing commercial activity in Area 4, but rather providing a place where Schoemansville title deed holders can excercise the right of access to the dam already incorporated in their title deeds.

It is thus foreseen to be the best course of action to let the property owner – namely DWS - take a stance regarding the situation. Schoemansville Oewerclub will be well advised to refer any 3rd party communication likewise to the rightful property owner.

Hopefully the reader is now adequately empowered to come to his / her own informed conclusion about the events which rocked the Schoemansville Oewerclub of late. Hopefully the Schoemansville title holders will rise up to exercise informed votes regarding this jewel on our foreshores. 

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