The legal Mine Field                                         265

Who is responsible for our heritage?

The modern legislation revolves around the National Heritage Resources Act (NHRA) No 25 of 1999. According to Wikipedia Its predecessor, “the National Monuments Council (NMC) was the national heritage conservation authority of South Africa, and therefore also of Namibia, during the major part of the apartheid era”. It was known principally for its declaration of several thousand national monuments. It came into being through the promulgation of the National Monuments Act of 1969 and ceased to exist on 31 March 2000 when it was replaced by SAHRA and the provincial heritage resources agencies established in terms of the NHRA.”.

The  NHRA falls under the National Dept of Arts and Culture, devolves our heritage into three tiers.

Grade I  Heritage sites of National Importance overseen by the South African Heritage Resources Agency (SAHRA )

Grade II Heritage sites of Provincial Importance, in our case Heritage Western Cape (HWC).

Grade III Heritage sites of Local importance. In the CoCT case it is their Dept of environmental management.

When the NHRA was promulgated all previous National Monuments were automatically devolved to Grade II status and scheduled to be re graded either up or down.  E.g. as previous National Monuments, both East and West Fort were given Grade II status as Serial contemporary sites, however, under Heritage Western Cape.

East Fort is within Table Mountain National Park and thus eligible for Grade I status and should be re-graded to fall under SAHRA, however, East Fort is just one of over 80 Grade II sites in the TMNP and although it has been in the process for several years it remains a Grade II site

Which State Departments are  responsible for Hout Bay’s Forts?
Both East and West Forts are termed as “Defence Endowment Properties” which means they fall under Act No 33 of 1922 which transferred a large number of previously owned British War Department properties to the then Union of South Africa Defence Force. The properties included sites such as the Castle of Good Hope , The Lion Battery on Signal Hill and Fort Wynyard as well as many others.
The Act, which was subsequently amended a number of times, stipulates that the Minister of Defence “may subject to such reservations and conditions as he may deem fit, donate and transfer to the Commission for the preservation of natural and historical monuments  of the Union established under section one of the Natural and Historical Monuments Act, 1923 (Act No 6 of 1923).
The National Monuments Act of 1969 would appear to be the successor of the 1923 Act and one must assume that it was superceded by the NHRA (No 25 of 1999) its rightful owner should be SAHRA or HWC.

In any event it was “appropriated to” SANParks for incorporation into the Table Mountain National Park in 1998. Our interpretation is that it still belongs to the SANDF but is appropriated to the Park for Maintenance etc. However at a Provincial and National level there are “Silos” and there appears to be little c-operation between them.    

 WARNING - Do Not Pass “GO”  ……. Or you may go to Jail!

In other words  if a community picks up the baton and jumps onto the “Heritage Conservation Round About” to attempt to restore or even protect  a State owned heritage Grade II site, without a permit from HWC, they are likely to have the the NHRA book thrown at them.  However, our heritage authorities appear to be happy to stand on the sidelines and watch state owned heritage sites disappear rather than invoke Sect 9.1 of the NHRA to get the support of other government or private bodies. The “lack of funds and personnel” story does not wash with us, so we are forced to take a stand and make plans to solve these problems for the benefit of future generations, a task which seems beyond the current capabilities of our heritage authorities.

How have other countries solved the problem? Over 60 other responsible governments world wide have encouraged the establishment of National Heritage Trusts, privately funded and with significant community participation.  For example the National Trust (of England, Wales and Northern Island) is the biggest private landowner in Britain and employs over 4000 staff and 70,000 volunteers interacting with 19.2 million visitors (2012 Financial Report) who between them spend a lot of money all of which goes into Heritage Conservation. It is registered as a charity and makes a huge contribution to tourism, based mainly on cultural and natural heritage.  To date, for mysterious undisclosed reasons our heritage authorities and practitioners have blocked initiatives to start a National Trust base in the Mother City and we must ask why?

The Hout Bay & Llandudno Heritage Association is an Associate Member of INTO the (International National Trusts Organisation) and hopes that one day Government will remove the barriers and people preventing the creation of such a Trust for South Africa.  South Africa should note that three other BRICS Countries are full members - India, Russia and China.

Our researches into the history of the site not only revealed some fascinating facts it also revealed that in order to preserve anything that belongs to the State one has to overcome many formidable obstacles.  One such obstacle was the learning curve required to actually understand how the legislation works (or in our case doesn’t work).  Our modern Heritage Legislation is explained below and whilst it would appear to be very comprehensive it has not been very successfully applied in most of South Africa to this day. Whilst it is now rigidly applied  to owners of building more than 60 years old and have “heritage significance”, it is only glibly applied to buildings and historic State owned sites.  Whilst the relevant Heritage Authorities have the responsibility to preserve our heritage they, like many other government agencies, do not have the capacity to do so. However, they do have a Trump Card which they are fully entitled to play - but they invariably don’t.


A nation that turns its back on its history, the lessons and experiences of the past, good or bad,  undermines the foundations of its future.

It’s taken the Association more than 15 years to get to today’s situation.  Starting with discussions with SAHRA, our enquiries and requests out-lasted their first two CEOs without success.

We also negotiated with the CPNP (TMNP) with similar results (Out lasted 4 Park Managers). Ultimately we got agreement from the Dept of Defence but the TMNP would not play and quite frankly were not interested.

A good entry to HWC gave us hope that a “Heritage Agreement” was the answer as we realised that they had the a Trump Card (below) and were ultimately responsible.

Sadly it would seem that they are very reluctant to ‘play the card’ possibly because it would require cooperative governance which would appear to be “taboo” in government circles in this case. The City’s Heritage Department was sympathetic but outside their sphere of responsibility.

The Great Heritage Conservation “Round-about”.


 The Trump Card  and the blunt  Secret Weapon.
Extract from the National Heritage Resources Act
No 25 of 1999 (NHRA).

“Sect 9.1 All branches of the State and supported bodies must give heritage resources authorities (in our case Heritage Western Cape (HWC))  such assistance in the performance of their functions as is reasonably practicable.”   (There’s about 1000 of them.)
This means that Heritage Western Cape can request the assistance of the SANDF (owners), SANPARKs to whom East Fort was appropriated for maintenance, and the Department of Public Works to assist in the compilation of a Heritage Agreement between them and the Hout Bay & Llandudno Heritage Association (Community based Heritage Body)  as defined in SECT 42 of the NHRA.
Whilst HWC may have created regulations to the contrary, National Legislation Section 9.1 of the Act takes precedence over any such Regulations or Bylaws but the word “practicable” is not defined!

In a Nutshell

What Happened - Fire

The First steps

Building the Carriages

The Original Plan

The Legal Mine Field

Facing the Facts

Losing our Heritage

Military heritage Route

Contemporariy Sites

Other Examples

Bo Kaap

Restoration v/s Conservation

The sixty year rule

Our Flagship site


Facing the Facts 249

Facing Facts