As the global Extinction Rebellion gains momentum, the Western Cape High Court is mulling whether the authorities followed the correct procedures when moving Cape Town’s “urban edge” to allow development in Philippi, where urban farming takes place.
The Philippi Horticultural Area Food and Farming Campaign (PHAFC) has taken 11 government entities to court over the way the City of Cape Town and Western Cape provincial government paved the way for the “Oakland” development in 2011.
At the time, Dan Plato had his first run as mayor.
Along with co-applicant Nazeer Sonday, the PHAFC is questioning the processes that led to the decision to “soften” the city’s urban edge and let a parcel of horticultural land be used for urban development.
Picketers outside the court carried posters calling for the Philippi Horticultural Area (PHA) and Cape Flats Aquifer to be protected from development.
Sonday said the case was precedent-setting for the PHA. “If we lose this court case and this development goes ahead, we will lose the whole area.”
He added that in addition to the urban farming activities in the PHA and the 6,000 jobs related to it, the area had been identified as a key aquifer protection zone and would not cope with development.
Sonday said there would be flooding because storm water would have nowhere to go to, and the aquifer would not recharge.
However, inside the court, a large contingent of lawyers for the local and provincial government said that no rules were broken when changing the urban edge to pave the way for the Oakland development.
If there were any deviations, they were at officials’ discretion and were permitted, the court heard.
The land in question is to the south-west of Cape Town, bordering Mitchells Plain, and was once owned by German farmers who supplied the city.
Advocate Michael Janisch explained that Oakland “is not some fly by night commercial land speculator”.
He said it was in curatorship, and a curator wanted to develop it because union investment funds and members’ pensions were at stake.
“Eighty percent is held by trade unions … and it is about to become 100%.”
Janisch added the dispute over the development had cost Oakland millions in consulting fees and property rates so far, saying it also had to pay R7.8m for security to prevent potential land invasions, and any crime on the unused land.
Advocate Nazreen Bawa, on behalf of Local Government, Environmental Affairs and Development MEC Anton Bredell, submitted that he had done everything right regarding the Oakland development, and its potential impact on the environment.
She said studies had in fact shown that allowing farming there would actually be detrimental to the aquifer.
This was because of farming pollution such as fertiliser entering the aquifer.
Bawa added that the Department of Rural Development and Land Reform had also indicated the Oakland parcel was not earmarked for land reform.
Ron Paschke, a lawyer for the City of Cape Town, submitted that since the land was privately owned, the developer could do what they liked on it within the guidelines of the law.
He said the City had a massive housing crisis and the land presented an opportunity for housing for 15 000 people, and the potential for jobs during construction as well as jobs at retail centres, schools and clinics that will follow.
“The City can’t be faulted for a development like this.”
Paschke and Bawa submitted that there were ways to mitigate concerns over flooding or the aquifer not being recharged through swales – long ditches that formed water ways, permeable paving, and storm water drainage at green belts and parks that would be in the development.
Advocate Murray Bridgeman for the PHAFC said the applicants do favour development, but just not on the aquifer, which they regard as unique agricultural land.
He added there had been “little or no” public participation before deciding to “soften the urban edge” and the applicants did not have the money to challenge the issues when they first arose in 2011.
As part of his argument, Bridgeman proposed a “land swap” as a “commercial solution” so that Oakdale’s investors get land elsewhere within the city, and their Cosatu pension fund investors do not suffer.
Advocate Peter Kantor, dealing with the environmental aspect of the case on behalf of the applicants, submitted that the decision in 2011 to soften the urban edge for Oakland was illegal because the relevant environmental assessment processes were not followed.
Judgment was reserved.