STEPHEN TOWNSEND: The efficacy of the Heritage Act

A month or two ago, two articles in Business Day touched on the value of the frameworks of investment and of regulation in driving successful cities (Tim Harris’s “Cape Town CBD — a compelling blueprint for cities in decline”, February 13, and Stephen Townsend’s “Cost and value of the building labyrinth”, March 20).

More recently, Brian Benfield described the now three-year-old Financial Advisory & Intermediary Services (Fais) Act as “an unmitigated and costly failure that does considerable harm to the growth, development and transformation of the SA financial services sector”, placing “an unsustainable burden on both the industry and its regulators” (“Fais Act has failed and belongs on the ash heap of history”, April 1).

The reasons for its failures, he argued, are that the intentions of the act have never been clear (for consumer protection, as a registration and monitoring system, or for market conduct regulation) and because of a number of critical factors he outlined persuasively. He concluded by suggesting a comprehensive industry-wide approach to reconsider and address these failures.

The importance in modern society of financial services and, of course, the regulation of those services cannot be overstated so the call for a review is rational and appropriate. This after just three years.

That said, the 1999 National Heritage Resources Act, now in force for 25 years is, through its unselective general protections (more about these in a moment), often an influential component of the regime regulating the built-form of our towns and cities and, of course, in decision-making regarding investment.

The Heritage Act recognises the three-sphere system of government consistent with the constitutional powers of each in respect of cultural matters with a national authority, the SA Heritage Resources Agency, responsible for the most significant heritage resources and, importantly, for determining the competence of the nine provincial heritage resource authorities and for monitoring their performance.

In turn, the nine provincial authorities were to be responsible for the next level or grade of heritage resources and for determining the competence of the local municipal authorities and monitoring their performance. Local authorities were to be responsible for heritage resources of the lowest degree of significance, which were assumed to the greatest number of heritage resources.

This outline seems straightforward: However, only two provincial authorities have been in place throughout this 25-year period (Western Cape and KwaZulu-Natal) and only one, for the most part, competently so (the Western Cape).

Some other provinces have had provincial heritage resource authorities for shorter or longer periods, but for the most part these have not been created, or have existed but were too severely constrained to carry out their most basic responsibilities even nearly competently.

Curiously (if revealingly), the SA Heritage Resources Agency’s most recent available annual report (of 2022-2023) makes no mention of the provincial heritage resources authorities, of their activities, or of the agency’s monitoring or interaction with them.

Given this, it will not be surprising to learn that only one municipal authority (of 267 countrywide) has been deemed to be competent (for a limited range of responsibilities only), that is, Cape Town.

While a small number of municipal authorities (five or six) in the Western Cape have taken an important step towards competence (having drawn up, usually by consultants, an inventory of the heritage resources they would be responsible for), this is still a tiny number. And this after 25 years.

Does this matter? Yes, of course it matters. It matters because apart from creating this system of national and provincial heritage authorities (both have constitutionally established responsibilities in respect of cultural matters and, therefore, heritage) and allowing for local municipal responsibility (if deemed to be competent), the Heritage Act anticipates that all heritage resources will be identified and responsibility assigned to the relevant authority.

But the act also recognises that this will take years or even decades to accomplish. So, in the interim the act created what it called “general protections”, which establish a number of development activities that trigger applications to the provincial heritage resource authorities (even if there is no recognisable heritage asset).

Most far-reaching of these (but not the only one by any means) is the need to apply to the provincial heritage resource authorities for a permit to alter or demolish a structure more than 60 years old.

“Alter” is widely defined as including even replastering or painting. The effect is that anyone wishing to alter or add to a structure, however ordinary or insignificant but built before 1965 in, let us imagine, a busy growing town like George, must first make an application to the provincial heritage resource authorities in Cape Town, some 400km away.

It should not be necessary to stretch one’s imagination to grasp the enormity of this, the cost to the regulated (anyone owning a building more than 60 years old), to the regulators (the provincial heritage resource authorities), and to the municipal authorities that must turn back any applicant seeking building plan approval for such work.

Indeed, the municipalities must know (or guess) how old every structure in its jurisdiction is because the building law prohibits approval of any work unless all/any applicable law has been satisfied.

I emphasise that this applies to every proposal to alter, add to or demolish any structure in the country; and I emphasise that this applies also to a number of other fairly ordinary development activities (like consolidating or subdividing three or more erven). 

However, while it should not be necessary to say this, it should be obvious to anyone living outside Cape Town, a small number of towns in the Western Cape and an even smaller number outside the Western Cape, that the municipalities are approving building plans without knowing (or pretending to not know) how old the buildings involved are, and have been happy to ignore the law.

And this applies in respect of just one of the measures in the act. Even more troubling is the inactivity of the authorities (at all three levels): bluntly, the national and provincial heritage authorities, most of the municipalities and almost all of the state departments responsible for state-owned buildings have happily trundled on, ignoring or avoiding as best they can the implications of the Heritage Act.

It is true that there have been moments in these 25 years when one or other agency of the state has thought about this and has had a stab at exploring this obviously inappropriate system.

So, yes, 15 or so years ago the national department of arts & culture did commission a review of the heritage and related acts, and then eight years ago published a white paper on arts and culture (including, it claimed, heritage); five years ago the Western Cape’s provincial heritage resource authority did, in concert with the provincial department of economic development, commission a “legal review”; and there have periodically been workshops aimed at coming to grips with the Heritage Act and/or its administration.

These efforts have cost an enormous amount of time and money and have come to naught, primarily because they did not include the necessary kinds of research. This has apparently taken place without recrimination (or thought of reporting fruitless expenditure) or a backward (or forward) glance. For 25 years.

What is to be done? After just three years Benfield contends that the failures of the Fais Act demand a comprehensive approach with industry-wide participants to replace that act; and Sheree Bega reported in the Mail & Guardian last month that the Supreme Court of Appeal has recently rebuked the minister of forestry, fisheries & the environment for failing to introduce air quality regulations during the past three years.

But after 25 years of confusion and avoidance, of grappling with a Heritage Act riddled with error, incompleteness, over-reach and the root of billions in fruitless expenditure, what is the court of public opinion to say?

If I may echo Benfield on the Fais Act, the Heritage Act has been “an unmitigated and costly failure that does considerable harm to the growth, development and transformation”, to say nothing about heritage resources and environs lost or damaged. For 25 years.

It is true that in our public culture heritage resources are not as important as financial services or as “sexy” as the arts or sport (part of the same set of ministerial responsibilities), but it has long been self-evident that the law regulating heritage assets must be redesigned. Surely, it is time initiate a comprehensive industry-wide approach to reconsider the National Heritage Resources Act.

• Dr Townsend, a former land-use manager at the City of Cape Town, CEO of Heritage Western Cape and adjunct associate professor at the University of Cape Town, is an architect, statutory planner and heritage practitioner.