Complaints were made about squatters living on this private heritage site in Retreat. They were offered R3 000 each to go, but refused. Picture: David Ritchie
The Heritage Act (National Heritage Resources Act 25 of 1999) plays a crucial role in the conservation of tangible heritage in South Africa. In this Heritage Western Cape, its council, committees and staff play a significant role.

But the Heritage Act is unnecessarily imposing a rigid burden on homeowners. It is unconstitutional as it ignores the opinions of 99% of society, often infringing on property rights.

These shortcomings can be rectified with a few amendments to the Heritage Act and its application.

The Heritage Act creates three classes of tangible heritage. Class I is of national importance and under control of the South African Heritage Resources Agency.

Class II, of provincial significance, is controlled by Heritage Western Cape.

Class III comprises “other heritage resources worthy of conservation”.

The vast majority of heritage objects are of Class III status, which the Heritage Act specifically assigns to local authorities for identification and management. However, all Class III heritage resources are still managed by Heritage Western Cape.

A major problem is that the Heritage Act stipulates that “No person may alter any structure which is older than 60 years without a permit issued by the relevant provincial heritage authority”.

This contradicts the assignment of Class III heritage resources to municipalities. Most 60-year-old structures are dwellings. Very few are of heritage value, and if so, at most Class III.

For any alteration, internally or externally, permission must be obtained from Heritage Western Cape, after payment of an application fee.

A report from a heritage consultant may be demanded. That may cost a substantial amount of money, without any guarantee that the application will succeed.

Thousands of houses all over the province are older than 60 years. Their owners are unnecessarily burdened with financial and administrative prescriptions.

Only registered conservation bodies are informed of an application. They represent less than 1% of the population. Other organisations are not allowed to register. This is unconstitutional as the constitution stipulates that “everyone has the right of access to information”.

In the recent “Piketberg case” the High Court ruled that the Heritage Act also contravenes the Promotion of Access to Information Act.

Homeowners must pay to benefit society. From the day a house turns 60, the above restrictions apply and the consequent financial burden.

The owner must pay to preserve a (possible) heritage object for the benefit of society, without any benefit for the owner.

The resale value of a house also drops if it is declared a heritage resource.

This is unconstitutional because it deprives the owner of property rights, as “no law may permit arbitrary deprivation of property.”

Definition of “heritage resource” is too wide.

Almost anything can be regarded as a “heritage resource” because the Heritage Act defines it so vaguely.

Determining what constitutes “heritage” is not an exact science - it is a matter of opinion, at present the opinion of a very small percentage of society. Something historically significant should have happened there.

Also, if the houses in a street or suburb appear aesthetically pleasing, retention of that appearance (or not) is a town planning issue for the municipality and owners to decide.

A possible solution: Heritage conservation should be pro-active.

Municipalities must be put in charge of Grade III heritage objects - clearly the intention of the Heritage Act.

Building plans and heritage issues may be simultaneously handled, thus saving applicants red tape. Consultants can be appointed if a municipality does not have the necessary expertise on its staff.

A municipal council represents the inhabitants of the town. Its decisions will be in accordance with the constitution.

From the fact that Cape Town Municipality has been struggling for seven years to be accredited, it seems as if Heritage Western Cape does not want municipal councils to take decisions on heritage applications.

Municipalities should evaluate all the houses in a suburb before the majority turn 60, with input from the public and owners. Houses not worthy of conservation should be exempted from the 60-year clause.

Owners of houses with heritage value should be compensated for their contribution to society, for instance by a reduction in property tax. In most cases only the façade facing the street requires control.

Conserving our heritage is of extreme importance. However, it must be done fairly, equitably, transparently and at acceptable cost - especially to owners of heritage objects.

Claassen is a retired senior lecturer in town and regional planning of Stellenbosch University. He served on various committees and the council of Heritage Western Cape for nine years.