Mossel Bay homeowners sue authorities over wrecked homes.
Sixty-two owners of properties in what used to be upmarket residential developments in Mossel Bay will soon be heading to court, claiming R200 million in damages from the Premier of the Western Cape and from the Mossel Bay Municipality. A third respondent is the National Home Builders Registration Council (NHBRC)
In September 2016 the Mossel Bay Municipality told residents of Seemeeupark, Seemeeuvlug and Tuscan Village in Hartenbos that they had seven days to evacuate their properties after huge cracks had started to appear in buildings and roads in the area the previous year.
And soon after they had moved out, the municipality added insult to injury by ordering several owners to demolish their newly-built houses and a townhouse complex at their own expense.
|Newly built house in disarray|
The dwellings had been built near the N2 highway on land that was part of an old gravel quarry that had been excavated years ago on the side of a hill. In 2015 the ground began to slip downhill at a rate of several millimetres per day.
Needless to say the disaster was devastating for affected residents who suffered severe emotional stress and huge financial loss. Many were pensioners who literally had nowhere else to go and found themselves on the streets. Properties bought for cash were in some cases not insured, others battled to get their insurers to pay because the smallprint in their policies excluded subsidence.
The municipality was the first to deny responsibility. In November 2016 Mossel Bay’s lawyers wrote to Rinette van Niekerk, whose family was forced to move out of their home, saying Seemeeupark was part of a private development on land that was also previously under private ownership. The letter stated emphatically that the municipality was neither a party in the sale of the development property to the developer nor a party to the sale of properties in the development to private investors, therefore “…we are of the view that our client is not liable for the damage caused by the landslip,” it said.
Van Niekerk was not convinced that her family had no claim against the municipality and found herself a lawyer. She has since sourced hundreds of pages of documents to support the pending court action.
Before Van Niekerk received the letter of denial from the municipality’s lawyers, the then acting municipal manager Harry Hill had informed the media that it was the responsibility of the developer and owners to prove to the authorities that the land was suitable for its intended purpose.
Hill said municipal records showed that none of the motivations – including authorisation by the Department of Environmental Affairs – had mentioned the possibility of a landslide in the area. He also claimed that a geotechnical assessment was not legally required at the time of the application for rezoning in 1999. But the experts were only called in 16 years later after the cracks started appearing.
Outeniqua Geotechnical Services found that gravel had either eroded from the slope or there was an old stockpile on the floor of the quarry, and that the foundations of some of the houses had been thrown on compacted sand and gravel-fill from the quarry.
Had this perhaps been overlooked by the municipal inspectors who signed off on the buildings? Hopefully the pending court case will establish the facts.
After the Outeniqua Geotechnical report was released, the municipality appointed Kantey and Templer Consulting Engineers to reassess the problem. The firm’s Patrick Beales described the landslip as “an act of God”, stating that not a hint of negligence or bad design and workmanship had existed. He emphasised that the landslip had occurred because the integrity of the ground had been naturally disturbed, the unstable layer was lying extremely deep and that conditions were exceptional and were not a result of human intervention. Beales also warned that the geotechnical risk was very high and that even experts could not believe the extent of the movement.
Noseweek finds it interesting that these “exceptional conditions” only seemed to surface where there had indeed been human intervention – in the form of a gravel quarry and, as far as we know, landslips did not happen anywhere else in the area.
According to an article in Civil Engineering of April 2017, written by Beales and Iain Paton of Outeniqua Geotechnical Services, “geotechnical investigations are often overlooked or tend to be heavily constrained by time and costs, rather than ensuring a thorough understanding of the ground conditions and potential risks that may impact development” The “thorough understanding of the ground conditions” was of course a tad late and should have been established in 1999 before the authorisation for rezoning of the land was pushed through by a seemingly clueless bunch of municipal councillors. Back then they had even ignored the revealing findings and recommendations of their own town engineer!
The paper trail started 22 years ago in January 1997 when consulting engineers Ninham Shand in George wrote a letter to Cape Town urban and regional planners, The Planning Partnership. The letter was in response to earlier correspondence regarding the farm Vyf-Brakke-Fonteinen on the outskirts of Mossel Bay and the availability of bulk services for the planned rezoning of a portion of the farm. Ninham Shand said the area had been visited but that no test holes were drilled due to time and cost constraints.
Whose time and cost constraints? It is not clear but it is a damning indictment of a process that has now come to haunt them.
However, the Ninham Shand letter said that, from observations of the surface and walls of the old quarry, it appeared that services and foundations could be done without any rock excavation. Based on these superficial findings The Planning Partnership apparently then applied for the rezoning of the land on behalf of the then owners, Langeberg Foods.
But the Mossel Bay municipality had much more information available which revealed that the quarry area was not suitable for any future residential development. A memo, sent on the 3 March 1999 by the Town Engineer to the municipality’s Technical Service Committee, was tabled at a council meeting in April of that year. It referred to The Planning Partnership’s December 1997 application for the rezoning of a portion of Vyf Brakke Fonteinen from an agricultural to a residential zone. The Town Engineer’s memo specifically mentioned the old gravel quarry, warning that “the embankment of the quarry is steep and probably unstable, with the result that this part of the site should not be considered for development”.
At a council meeting on 13 April 1999 the report, including the Town Engineer’s memo, was unanimously accepted and the recommendations adopted. But it looks as though the councillors soon forgot about the exclusion and the warning.
Curiously, minutes of that council meeting mentioned that Councillor A Nel recused himself before Item T62-4/99 (the town engineer’s report) was discussed and that he had left the Council Chamber.
So, who is Councillor Andre Nel and why did he recuse himself? It is not apparent from the minutes but the applicants in the pending court matter say Nel was Mossel Bay’s mayor at the time. More significant however is the fact that the farm Vyf Brakke Fonteinen once belonged to Nel’s father, Leo Nel. Nevertheless, after the land was rezoned, it changed hands several times in one year. In August 2000 Langeberg Foods (Pty) Ltd sold to Neonbel Twee en Twintig (Pty) Ltd for R837,900.
It was again sold for less in 2001, to Deolinda Visagie, for R749,000 and finally to Dynadeals Thirty Nine for R5 million.
Dynadeals Thirty Nine became Seemeeupark (Pty) Ltd, the developer of the Seemeeupark housing project.
|Townhouse complex is now uninhabitable|
While different companies bought and sold the property, it appears to have stayed within the same family. Gideon Visagie is one of two directors of Neonbel Twee en Twintig which sold the land to Deolinda Visagie, Gideon’s daughter, who then sold it to Dynadeals Thirty Nine – of which Gideon Visagie is today still a director, according to company records.
When stands in Seemeeupark were sold to the people who were later evacuated, the Deeds Office added a curious restriction which stated that the land could only be used for the processing and recycling of factory runoff water and that only buildings directly linked to this process were allowed to be erected. Nobody appeared to have given any attention to this restrictive clause until after disaster struck. They say they were blindsided and believed the developers and agents’ claims that this was prime property overlooking the Indian Ocean.
This is yet another saga in a recurring tale where visions of a quiet life by the sea are shattered by lax research and denials of blame. People’s hopes and dreams end up in the court system where files of shattered plans pile up.
Summonses were delivered in November last year and the Mossel Bay Municipality has since announced that it will defend the case.
Copyright © 2019 www.noseweek.co.za