Legal wrangle stalls Rimers appeal

The Rimers Creek rezoning appeal scheduled to be heard by the Mpumalanga Townships Board on March 22 did not happen.

Instead, the proceedings started with points in limine – a hearing on a specific legal point which takes place before the actual case referred can be heard.

They were raised by the legal representatives of the developer and City of Mbombela Local Municipality regarding the jurisdiction of the Townships Board to determine an appeal against a land-use decision taken by a local authority.

Numerous references were made to various sections of both the relatively new Spatial Planning Land Use Management Act (Spluma), and the Town Planning & Townships Ordinance No 15 of 1986 (The Ordinance).

It was argued that in terms of Spluma the municipality is now responsible for the hearing of appeals and a recent court ruling handed down on March 16, 2017 in the High Court of South Africa (Gauteng Division, functioning as Mpumalanga Division, Mbombela) was referred to time and again to demonstrate the point.

This court case ruled that any appeal not pending by November 23, 2015 must be dealt with in terms of Spluma.

The legal representative acting for the appellant, however, argued that this ruling was in conflict with a similar Constitutional Court judgement handed down on November 10, 2016, which made it clear that the validity of all pending appeals and those that had taken place up to the date of the order, were preserved and it would not be just and equitable for the order to operate retrospectively.

As the Rimers Creek appeal was submitted on August 17, 2016, it was pending when this judgement was handed down.

He also pointed out that Section 167(5) of the Constitution stipulates that the Constitutional Court makes the final decision whether an Act of parliament, a provincial Act or conduct of the president is constitutional, and must confirm any order of invalidity made by the Supreme Court of Appeal, a High Court or a court of similar status, before that order has any force.

The end result was that the Townships Board undertook to make a decision in a week’s time whether or not they will hear the Rimer’s Creek appeal.

Dick Rimer’s great-great-granddaughter, Joslyn Greenwood from Gauteng, was present.

Dick Rimer was a well-known pioneer in Barberton and the town could have been named after him. However, on that day, Graham Hoare Barber won the votes and it was named Barberton.

Greenwood’s mother Bellerine Rimer was Rimer’s granddaughter. According to Greenwood her mother was proud of her heritage. “My mother passed on and I had hoped to scatter her ashes in Rimers Creek.

“I decided to start researching about the place and that’s when I saw an article about the rezoning. I worked for a town planner for over 25 years.

“The application is very wrong because the environmental authorities have said no, the heritage authorities have said no too and the applicant is in contravention of the Water Act yet there’s a wall that diverts the flow of the creek. What will happen during heavy rainfall?

The water will go straight into the museum and town. Apart from all that it is morally wrong and I do not understand why the council approved it. This development should not have been allowed and it should not have got to a point where we have to sit for an appeal,” Greenwood said.

She is not happy about how the day turned out although she understands the decision taken by Township Board.

Lynne McKirbin, a descendant of Barberton pioneers, said if what is happening is allowed to continue, it will affect the chances of Barberton becoming a heritage site.

“If this is allowed to stay the heritage will not be preserved. I had hoped for a resolution today but that did not happen. This case has been going on for years and was never resolved it is disappointing. We were also surprised to hear it is not a court sitting and it was a board,” said McKirbin.

According to Edwin Sturgeon, former chairman of the Barberton Business Chamber, it was a disappointing day.

“The appeal was made in August last year, we only had an indication around March 8, but it was postponed to March 22.

Everything that happened was just a delaying tactic. Everything about this development is not legal.

“This has been going on for long enough it has to end. We were expecting a resolution, in spite of the disappointment we are determined to bring this to its end,” Sturgeon concluded.