How Cape Town escaped a trash catastrophe with an unlawful land grab
Deputy mayor's decision to expropriate 2.6ha to avert rubbish disaster has been slapped down by the high court
Cape Town was on the brink of a garbage disaster just before Christmas in 2016 – but it was kept secret and resolved unlawfully.
The “situation of potential emergency” has come to light in a court judgment which lambasts the city council for an 11th-hour land grab intended to stave off catastrophe.
The drama could have meant the closure of the railway line that delivers almost 2,000 tons of rubbish a day to a landfill north of the city, potentially leaving the city under a stinking mound of rubbish.
Instead, with nine days to disaster, deputy mayor Ian Neilson decided to expropriate the 2.6ha Vissershok railway siding from its owner, Kohler Bricks.
Nielson’s decision, taken when he was acting mayor in the absence of then mayor Patricia de Lille, has now been overturned by a Cape Town High Court judgment.
Kohler’s attorney, Mike Evans of Webber Wentzel, said Judge Ashley Binns-Ward’s ruling that the council failed to follow procedures prescribed in the Promotion of Administrative Justice Act should comfort those anxious about proposals for a constitutional amendment on land expropriation.
“What this shows is that authorities will still have to behave with procedural fairness in cases of expropriation,” he said.
Xanthea Limberg, the mayoral committee member for water and waste, said the city council would now renew its attempt to expropriate the land. Evans said Kohler was “still very willing to lease the land to the city” and hoped to negotiate accordingly.
The first the company knew about the land grab was when a notice was served on it on January 23 2017, the date of expropriation.
Binns-Ward said Kohler had leased the siding to Transnet since 1995, and the city council had made a significant investment in infrastructure to unload containers from the Athlone waste-transfer station.
Transnet repeatedly failed to renew its leases in time, said the judge, and Kohler twice started legal action and threatened to pull up the railway line that crossed its land.
In 2016, Kohler applied to have the land rezoned from agricultural to the much more valuable “risk industrial” category, and began negotiations with Transnet to increase the rental by a factor of 10 from January 2017. At the same time, the city council told Evans it wanted to buy the property.
Frustrated with the lack of progress, Evans told the council on October 25 that Kohler would “consider removing the rails on its land and selling the land to a third party purchaser” if a sale or lease was not settled by the end of the year – an approach described by Binns-Ward as “hard-nosed negotiating tactics”.
A council lawyer replied on December 9, asking if it could use the siding for three more months while negotiations continued, a request Kohler “quite brusquely refused”, said Binns-Ward.
“It appeared to the city’s officials that it was most unlikely ... that an agreement could be reached concerning the renewal of the lease,” and a report was prepared on December 14 recommending expropriation.
“The report ... stated that ending the use of the offloading facility at the railway siding would result in an accumulation of waste in parts of the city with an attendant risk to public health,” said the judge.
“In short, [it] unambiguously presented a situation of potential emergency that called to be addressed by urgent measures.”
However, the situation was changed by an offer from Evans on December 19 that Transnet could remain on the land until February 28, and if no agreement was concluded by then, Kohler Bricks would enter into negotiations with the city. “This change of circumstances had a material bearing on the appropriate procedural approach to be adopted in respect of any decision to expropriate,” said Binns-Ward.
But the city council went ahead regardless and Kohler was not given the opportunity to comment on the expropriation proposal, in contravention of the Promotion of Administrative Justice Act.
The judge set aside the city council land grab and awarded costs against it, but said it could continue using the siding while it considered its next move. Most of the Kohler land has now acquired risk industrial zoning, which provides for “industries which are noxious in terms of smell, product, waste or other objectionable consequence of their operation, or which carry a high risk in the event of fire or accident”.
Limberg said Vissershok had an expected lifespan of between 15 and 20 years. The city council wants to build a new landfill in old sand mines at Kalbaskraal, near Malmesbury, but it is embroiled in a legal fight over claims that it would contaminate groundwater. “Only when this legal process has been completed can the new site be established and the acquisition/ planning/construction process begin,” she said.