NOTICE OF INTENTION TO ISSUE A DIRECTIVE IN TERMS OF SECTION 28(4) OF THE NATIONAL ENVIRONMENTAL MANAGEMENT ACT, 1998, (ACT 107 OF 1998) (“NEMA”) IN RESPECT OF DUTY OF CARE RESPONSIBILITIES REGARDING AN ILLEGAL CONSTRUCTION OF GABION STRUCTURES AND FOOTBRIDGES WITHIN A WATERCOURSE AT PORTION 259 OF THE FARM BRAAMFONTEIN 53-I.R. (5TH AVENUE PARK) (THE SITE)
This is a representation in relation to the notice headed as above directed to Rhys Ralph.
Parkhurst Residents’ and Business Owners’ Association (PRABOA) is a well respected association which has a membership of over 400 and around 380 other persons contributing to schemes organised by it. Their object is to represent and advance the interests of all users of Parkhurst (not only residents). I am authorised by PRABOA to make these representations on its behalf.
- Locus standi
The proposed directive is said to be made in terms of section 28(4) of the National Environmental Management Act 107 of 1998 (NEMA). Users of Parkhurst use the public open spaces which are on the east bank of the Braamfontein spruit (spruit) (otherwise Little Juskei) and cross the river there. Section 28(4) requires the department to give adequate opportunity to inform you of our relevant interests. I am therefore furnishing you with our interests and views.
The spruit has been crossed on foot in the area for a long time. The east bank of the spruit is a public open space operated in terms of a servitude by the City of Johannesburg (CoJ). The West bank appears to be public land. Road closures have left this area the main one north of 11 Street to access the spruit from Parkhurst. “Planks” have appeared at various times, but have usually washed away by floods. The large rocks and narrow steam at low water levels make it relatively easy for an energetic person to cross. Nevertheless, there was a substantial risk of accidents, particularly when the water level is above its normal level. We know of no drownings which have occurred from here.
We know of no survey of the usage of this crossing in those times.
The whole spruit has been neglected by previous management of CoJ. CoJ, we understand, is committed to spending substantial sums on rehabilitating the spruit. The plans include dealing with the extensive erosion of the banks. We are aware that such expenditure is a medium term plan (possibly 5 years?). We wholeheartedly support this. All concerned will support the work, when it reaches this area.
- Public Open Space
The east bank of the area in Parkhurst is registered in the name of CoJ with full dominum. North of this, in Craighall Park, Craigtowne hold a bare dominum having granted a registered servitude to CoJ for municipal purposes. It is submitted that the proposed directive is in respect of the watercourse of the spruit, and the disputes over the public open spaces are extraneous to that issue. The writer notes that there appears to be a misunderstanding, between the protagonists, as to the rights that can be exercised in relation to the servitude area, quite irrelevant hereto.
- Use of Bridge
The construction of the bridge has radically altered the use of the crossing. The construction has made it much easier and safer for users to cross because the bridge allows the low water level watercourse to flow underneath, avoiding the necessity to step on wet rocks set an angle. It is submitted that, in the normal course of low water events, this is a safety improvement. It has to be conceded that there is an added risk in the event of the water flowing above the level of the bridge. However, in view of the considerable distance to travel to go round the crossing, there will be foolhardy people who would try and cross the spruit in flood. There is much lore particularly in country areas (e.g. KZN) of people using unbridged crossings in flood and drowning. It is a question of balancing the potential risks. We urge you to come to the conclusion that the bridge is not, on balance, a hazard, although this would not by any means end the matter.
The number of people using the bridge is considerable. Somewhat to our surprise, we believe it may be of the order of 400 – 500 daily. Full day surveys have not been carried out. Informal surveys are consistent with this. There is a full spectrum of users of Parkhurst who cross. This includes workers (? domestic), school children and runners. This extends to Delta Park the range of recreation areas accessible to Parkhurst users without needing to use a motor vehicle. An additional factor is the improved safety in the public open space on the east bank: the regular traffic makes robbery and assaults unlikely.
In summary, there is a significant public benefit.
- Effect on water flow of bridges
It is submitted that the effect of the bridges on water flow has to be looked at as two separate cases. Firstly at low water level, neither end of the bridge (nor the supports) are below the normal water level: this causes no problem. In flood, the situation may be different. However, it is pointed out that the flow of water is very complex, over the rocks. I suggest that little, if any, extra erosion is likely. Furthermore, as discussed above, the entire spruit is being rehabilitated and the erosion dealt with. Some of the structures used to reinforce and prevent erosion of the spruit (particularly the west bank in this area, south of the bridge) are already showing signs of failure. You may consider that in view of this, the possible degradation is not significant in relation to the overall plan for the spruit. After all, environmental issues must consider the long term.
Any construction involves detrimental effects on the environment. The object is to minimise it and obtain proportionate benefits.
May I ask you to reconsider the issue of the grabions in the light of the comments made about the bridge in the previous paragraph. While the public interest is not as high as allowing thoroughfare over the bridge, I believe that the river was eroding the banks in the area. This was clearly causing damage. As canvassed in paragraph 3, lack of management and attendance to repair were causing damage to the public open space. The bonus paterfamilias took action to minimise and rectify pollution or degradation to municipal property and the environment. At least, he is not asking for recompense.
In terms of NEMA S28(4), it is clear that you have a discretion in deciding whether to issue any notice (the use of the word “may”). Furthermore, your paragraphs 1 and 3 are not entirely consistent, and, as discussed above, it is arguable that, in the circumstances of future rehabilitation by CoJ, your discretion could be exercised.
One suggestion is that you may consider postponing issuing the directive. I believe that there would be no question of estoppel by acquiescence. Rather, in the particular circumstances, it may be prudent to see whether and what damage actually occurs. As indicated, the engineering of works in such waters is very complex and not reliably forecastable. Delay may be the best engineering solution.
We would not seek to condone the actions of Rhys Ralph. But we would suggest that it is the situation as it exists on the ground and in the water that should be considered as a factor in your decision.
It may be fair to criticise the arrangements that would be necessary to construct such a bridge legally as disproportionately expensive. However, this is not a matter that is relevant now.
15 June 2018