June 2011 1 Research article

Haunting questions around the protection of our cultural heritage

Written by Marie Lou Roux and Kathy Dumbrell

Heritage practitioners and other concerned parties in are up in arms. The war of words was prompted by the proposed addition of a parking garage and office block on top of a dilapidated warehouse built in the VOC era, situated in the so-called Lutheran Church block in the Cape Town CBD. Since heritage has economic (tourism) value, we should all be con- cerned when we destroy our heritage, whether through wilful neglect or otherwise. Marie Lou Roux, executive officer of the Habitat Council, and Kathy Dumbrell, heritage consult- ant, explain.

South Africa has one of the best-intentioned heritage resource manage- ment acts in the world (the National Heritage Resources Act, Act 25 of 1999, referred to generally as the NHRA). The team who wrote it made sure to learn from the lessons learnt over decades by international con- servation bodies (such as ICOMOS) and similar legislation of other coun- tries, notably the UK and Australia. South African heritage conservation legislation relies heavily on international standard texts, such as the Dec- laration of Rome and the Burra Charter to guide its work.

Marie-Lou Roux The NHRA’s preamble reads:

This legislation aims to promote good management of the national estate, and to enable and encour- age communities to nurture and conserve their legacy so that it may be bequeathed to future genera- tions. Our heritage is unique and precious and it cannot be renewed. It helps us to define our cultural identity and, therefore, lies at the heart of our spiritual well-being and has the power to build our na- tion. It has the potential to affirm our diverse cultures and, in so doing, shape our national character.

Despite the good intent of the NHRA, our system regularly fails our built heritage – from hid- den suburban gems (such as Cavendish Square in Woodstock, Cape Town) to well-known landmarks (such as the Old Granary on Buitenkant Street, Cape Town, which stood derelict for many years). Buildings decay, and no-one is able to force anyone to repair them. Worse yet, owners wilfully “neglect” to secure the property, allowing vagrants to enter and destroy the very fabric that makes the building precious. Hearteningly, one such case of neglect was proved in ca. 2000 (the YMCA in Queen Victoria Street, Cape Town). However, the case was not widely reported on, and it seems few similar cases have since been proved, so the oppor- tunity to change public perception was lost. Buildings are demolished because they are not considered worthy of provincial protection and the local authority under whose care they fall is not empowered by the NHRA to veto demolition by the higher authority. Inappropriate and in- June 2011 2 General article

sensitive developments pop up next to, or even on top of, buildings of heritage significance, without neighbours having any forewarning be- cause no-one was forced to consult with them. We are haunted by such failures.

How can it happen that a well-intentioned act designed to protect our national heritage does not ensure the protection of some of its most pre- cious elements? S. 3(1) reads:

Kathy Dumbrell For the purposes of this Act, those heritage resources of that are of cultural significance or other special value for the present community and future generations, must be considered part of the national estate and fall within the sphere of opera- tions of heritage resources authorities.

The ”national estate” is defined in the NHRA (which supplanted the old National Monuments Act of 1969, and its amendment of 1986), as those heritage resources of South Africa that are of cultural significance or other special value for the present community and for future genera- tions. Listed in s. 3(2)(a,b,c,d,h) are ”places, buildings, structures and equipment of cultural significance”; “places to which oral traditions are attached or which are associated with living heritage”; “historical settlements and townscapes”; “landscapes and natural features of cultur- al significance” and “sites of significance relating to the history of slavery in South Africa”. The- se are to be managed as “built environment”, and fall within the sphere of operations of the heritage resources authorities, as do graves, geological features and archaeological and palae- ontological sites, but the latter three are managed differently.

The term “heritage” may hold different meanings and connotations for different groups – rang- ing from being synonymous with “the past” to more specific meanings, such as artefacts from the past or cultural practices from the past. This article, however, takes its cue from s. 3 of the NHRA. This act refers interchangeably to “heritage”, “legacy” and “the national estate” in its preamble. It goes on to specify a range of resource types, which can be divided broadly into “movable objects” and sites. All form part of the “national estate”.

Warehouse from 18th century

Some of the questions that haunt us arise from two vexed examples where our system of pro- tection appears to be faltering.

The first, and our immediate concern, so we deal with it at length, is the controversy that sur- rounds the 18th century Lutheran Church complex on , Cape Town, which recent- ly was the subject of an application to erect a parking garage and four-storied office block on the old warehouse built between 1764 and 1774.

The complete street block bounded by Buitengracht, Strand, Bree and Waterkant Streets, was declared an Urban Conservation Area in the Province of Official Gazette of 24 June 1990 (plan reference no. TPZ8246).

S. 108 of the Zoning Scheme of the (2007) relates to Urban Conservation Areas. Sub-section 3(iii) of s 108 is of particular relevance here:

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the Council shall not give its special consent in respect of subparagraphs (i) and (ii) if such demoli- tion, erection, alteration, felling or uprooting or causing to destroy (as the case may be) will be det- rimental to the protection and/or maintenance of the architectural, aesthetic and/or historical signifi- cance, as the case may be, of the area in which such erection, alteration, felling, uprooting or causing to destroy is proposed. (emphasis added)

“Detrimental … to the area” in this section therefore requires City officials and, by extension, the City of Cape Town’s Spatial Planning, Environment and Land Use Management (SPELUM) committee ─ the body entrusted with decision-making on development applications ─ to con- sider the context within which the proposal is located, not just the erf on which development is proposed. The NHRA does not merely protect the façades of buildings, but covers a wide array of objects and spaces considered heritage, as well as sites declared National Monuments before this Act was drafted.

Our discussion on the first example is limited to the built environment, namely buildings, townscapes, landscapes and natural features with (as defined in s. 3) as of cultural signifi- cance, either intrinsic or associational, as “heritage resources”, and specifically the four historic buildings on the Lutheran Church street block.

“Category 1” status

These four buildings are accorded “Category 1” status in The Buildings of Central Cape Town Vol. 1 (Rennie 1978:47). In a grading system less nuanced than the one currently used, this category indicated buildings of “national or local importance”. What is important to note is that this category was based on what is now termed intrinsic significance, coupled with association- al, historical significance, and was generally accorded to buildings worthy of National Monu- ment status. As recently as 2004, while revising his Old Buildings of the Cape, Dr Hans Fran- sen wrote “[The Martin Melck House] is one of a group of three (if no. 94 is included, four) 18th-century buildings on Strand Street that is of unique value to Cape Town.” And: “Even to- day the Lutheran group manages to dominate the upper half of Strand Street, in the face of modern buildings many times its size.”

One of the key requirements imposed on provincial agencies for managing heritage resources is that they re-assess and re-grade sites that had been declared national monuments inherited from the previous act – a process explicitly required to be completed by Provincial Heritage Resource Agencies within four years of their being constituted. The Heritage Resource Agency was established in 2002 but, tragically, the re-assessment has not yet been done. The Martin Melck House (now the Gold of Africa Exchange) was declared a national monument in 1936 under the Historic Monuments Act of 1936, the Lutheran Church and the sexton’s house (now the Dutch Consulate), in 1949. Critically, these declarations were contin- ued under two successive Acts. Now, under the NHRA, because these monuments have not been re-assessed, their grading is effectively in limbo. This results in confusion about jurisdic- tion, putting the buildings under threat.

How could it happen that the national heritage resource authority, SAHRA, never picked this up? The NHRA is clear on the brief of the provincial Heritage Resource Agency. S. 7(1) deter- mines:

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SAHRA, in consultation with the Minister and the MEC of every province, must by regulation establish a system of grading of places and objects that form part of the national estate, and that distinguish between at least the following categories:— Grade 1: Heritage resources with qualities so exceptional that they are of special national signifi- cance; …

The Lutheran street block is unquestionably of Grade-1 significance. In s. 7(1)(d), the NHRA continues:

(d) The assessing authority may at any time, and shall at least every two years, reassess the compe- tence of a subordinate authority and review the assumption of functions and powers under this Act. (emphasis added)

How could such an important matter have been neglected? We realise that offices are under- staffed and officials overworked, but, besides being mandatory, this was surely a priority.

Unique block

The block is described as “unique in the City” in the departmental report written by City offi- cials for tabling at the January 2011 meeting for consideration by the SPELUM committee (p. 912). “Uniqueness” is, in terms of the NHRA, grounds for high heritage significance. For a site of high significance, a “no development” option is reserved. In this case, we believe that this option should have been exercised. It is not a matter of how additions are designed, but of whether they should be considered at all.

Using the work of J. Hoge, who meticulously researched the early history of the German com- munity in Cape Town, the construction of the VOC-era warehouse can be dated to between 1764 and 1774. But, because the warehouse is ungraded (despite being one of only four sur- viving 18th century utilitarian buildings in Cape Town), and because the Lutheran Church Complex, comprising three National Monuments, has not yet been re-graded, this is technically a provincial heritage site (implying it is no longer of national significance!). On this pretext, SAHRA was not consulted in this matter. Is this not a deplorable misuse of a technicality? Af- ter all, these sites had been considered to be of national significance under successive heritage acts. Strangely, in the Heritage Impact Assessment dated 30 March 2010, the Heritage Impact Report is described as pertaining to alterations to “a building more than sixty years old”.

Only in the second version of the Heritage Impact Assessment is the wording changed to “a building within an Urban Conservation Area”.

Cultural landscape

The case of the Lutheran church complex highlights another aspect of significance enshrined in the NHRA. This is the protection of spaces and townscapes – what is referred to as the “cultur- al landscape”. The idea of cultural landscape essentially captures the notion that sometimes it is a collection of spaces that can form a cultural landscape, telling us how people conceived of, and used, space in the past. An example is the vineyards of the Winelands in the Cape. Further examples are a group of buildings around a square (such as Greenmarket Square in Cape Town or the western façade of Church Square, Pretoria) or the houses along a street (such as June 2011 5 General article

on Church Street in Tulbagh, where each house is set along the road yet has a garden stretch- ing to the river).

To conserve cohesive areas (urban cultural landscapes, if you will) of heritage significance (i.e. manage development within them to retain their character over time), is the very reason why Urban Conservation Areas were established. The first in South Africa, in 1986, was the Upper Table Valley in Cape Town. Now, from the once run-down housing stock of Gardens, Tambo- erskloof, , and Higgovale right next to the Central Business District, this area has grown to be a vibrant and iconic part of Cape Town, with its heritage significance and conserved spaces its main draw card. Many visitors to Cape Town are drawn to Kloof Street and , which remain vibrant from dawn to dawn and retain much of their 19th cen- tury character.

Urban Conservation Areas in Cape Town are managed by the City, under s. 108 of the Zoning Scheme. This section explicitly requires officials to consider the impact of any proposal on the area’s character and, if the impact on the historical, aesthetic and architectural character of the area is negative, the application must be refused. This has been a most effective tool in managing the historic environment in the city.

Nevertheless developers still try to force insensitive proposals into areas where they are clearly not going to enhance the unique qualities that characterise the area.

What factors play a role here and why is public participation often so inadequate? Can it be that because our heritage management systems, at local, provincial and national level, all rely on consultants who are paid by applicants to contact registered local interest groups for their comment? Could it be that conflict of interest and lack of independence leads to the deliberate reluctance to engage in adequate public participation?

Cape Floral Region

Our second example concerns one of South Africa’s prime natural landscapes, the Cape Floral Region Protected Area: World Heritage Site, and in particular the Redhill/Plateau Road section in the far Southern Peninsula. This World Heritage Site, declared internationally in terms of the World Heritage Convention Act (49/1999) (Gazette no. 31832, notice no. 72) is being allowed to erode, resulting in the impoverishment of our national heritage, so posing a threat to one of the Cape’s key tourism assets.

On 30 January 2009 the Cape Floral Region Protected Areas were proclaimed as a World Herit- age Site (WHS) in terms of South African legislation. The site encompasses the earlier Protected Natural Environment. Third-tier government has an obligation to ensure the protection of this World Heritage Site, which falls within its area of jurisdiction, and it is its responsibility to take appropriate legal and administrative measures for its protection, conser- vation and rehabilitation. This is not being done.

The National Government, in terms of the 2009 act, is required, through the person of the di- rector general of the Department of Environmental Affairs, to draw up a Management Plan and put in place a formal body to execute the plan. There is a desperate need for the establish- ment of such an Authority for this World Heritage Site June 2011 6 General article

because existing legal protective measures to protect its core and buffer areas are not being exercised. In the absence of a management plan, the local authority is handling land use ap- plications on an ad hoc basis and is not policing illegal uses. Temporary consent uses are granted for five years but, upon expiry, the uses continue unchecked or are rewarded with fur- ther authorisation.

The NHRA itself, in its introduction, binds all levels of government to “protect resources of na- tional significance”. The City of Cape Town has powers in terms of the Land Use Planning Ordi- nance (15/1985) (LUPO) to protect the area, but is not fulfilling its legal obligation to do so. The indiscriminate and ad hoc granting of repeated temporary departures and consent uses have, for example, resulted in a bottling plant at the entrance of the Nature Re- serve, and the authorisation of rock concerts for over 1000 souls on Plateau Road – all within the boundaries of the World Heritage Site. Such uses are irreconcilable with conservation man- agement and lead to commercialisation and degradation of this precious but fragile environ- ment.

It is not our legislation that is failing us, but its implementation.

Heritage conservation allows us to retain our past ever-present so that we as a society can build a future that respects, understands and learns from its past. The tourism industry in the Cape, for one, is heavily dependent on our heritage. We neglect this monetary resource at our own peril. Acting in the interests of the greater good now may not bring immediate yield, but, as the case of the Conservation Area shows, the eventual yield it brings is great, and sustained over a longer period.

References: J Hoge. 1946. Personalia of the Germans at the Cape. Archives Yearbook 1946 J Rennie. 1978. The Buildings of Central Cape Town. Cape Town: Cape Institute of Architects