Investigation Reports

PUBLIC PROTECTOR
REPUBLIC OF SOUTH AFRICA

REPORT IN TERMS OF SECTION 8(1) AND (2)(b) OF THE
PUBLIC PROTECTOR ACT 23 OF 1994

REPORT NO 9
(SPECIAL REPORT)

REPORT ON THE CONSERVATION OF THE KAAIMANS RIVER
VALLEY AND THE ESTUARY

TABLE OF CONTENTS

REPORT

Introduction
Description of the Area
History and Background
The Complaints

The N2 National Road
The infilling on the eastern bank of the Silver River
Access to the river by engine driven boats
The destruction of protected plants at the outspan
The construction of a jetty and an access path on the eastern bank of the Kaaimans River

The Investigation
The Legal Position

Visits to and the occupation of the area known as "the outspan"
The skiboats on the Kaaimans River

The Report of the Public Scoping Exercise and Preliminary Environmental Assessment
Alternative Launching Sites for Skiboats
Factual Findings on the Complaints

The N2 National Road
The infilling by Mr Cohen
Access to the river by engine driven boats
The destruction of protected plants at the outspan
The construction of a jetty and an access path on the eastern bank of Kaaimans River

The authority and powers of the Public Protector
The affected Rights of the Parties in terms of the Bill of Rights
Possible solutions

Lake Areas Development Act, 1975
The National Parks Act, 1976
The Environment Conservation Act, 1989

Preliminary Recommendations
Recommendations

ANNEXURE B

REPORT ON THE CONSERVATION OF THE KAAIMANS RIVER VALLEY AND THE ESTUARY

1. INTRODUCTION

This Report is submitted to the National Assembly, the National Council of Provinces and the Provincial Legislature of the Province of the Western Cape by virtue of the provisions of section 182(1)(b) of the Constitution, 1996 and section 8(1) and (2)(b) of the Public Protector Act, 1994. It deals with an investigation by my office of complaints regarding the alleged destruction of the Kaaimans River Valley and the estuary that have been lodged at my office over a period of more than two years.

2. DESCRIPTION OF THE AREA

2.1 The Kaaimans River Valley is situated on the South-Western Cape coast, about 8 kilometers east of George. A drawing of the area is attached as "Annexure A". It is characterised by the confluence of the Swart and Silver Rivers. The N2 national route goes through the valley, as indicated by "1" on Annexure A. The Swart River is impounded in its upper catchment area by a reservoir which provides drinking water to the town of George (2). Immediately downstream of the bridge crossing the Swart River is a small weir which provides water to residents of the properties on the western bank (3). Downstream is a waterfall that has been a scenic tourist attraction for many years (4).

2.2 Several hundred meters upstream of the roadbridge crossing the Silver River is the property of Mr D Cohen (5). The old caravan site is situated on the land beneath the bridge crossing the Silver River and immediately adjacent to it (6). The causeway crossing the Silver River is situated just downstream of this bridge (7). This is also a historic oxwagon crossing point.

2.3 The outspan (8) alongside the river crossing was originally a rest area for wagon trains ascending the difficult route of the valley. There is, however, presently some doubt as to the exact location of the original outspan. The historic wagon track route was eventually registered as a public servitude across the farm "Kraaibosch" in 1905. Originally, this area resorted under the authority of the "Conservator of Forests". Presently, Cape Nature Conservation (CNC), that resorts under the Department of Environmental and Cultural Affairs of the Provincial Administration of the Western Cape, manages part of the conservation of this area in terms of the provisions of legislation that will be dealt with in more detail later in this report. Remnants of the historic wagon train route are still visible (10).

2.4 The outspan is currently accessed from the N2 (9). A slipway to enable skiboat owners to launch from the river has been constructed at the outspan (11). The properties of the riparian owners on the western bank are situated downstream of the outspan towards the estuary (13).

The Kaaimans River Valley is well known for its natural beauty and scenic character. Thousands of tourists pass through this valley annually and the importance of conserving this area is undisputed.

3. HISTORY AND BACKGROUND

3.1 By the turn of this century, some of the properties on the western bank of the Kaaimans River would have been owned by the same families for six generations. The first settlement was started in 1907. There is no access road to these properties and it can only be reached by boat. As the original wagon route could not be developed to accommodate more modern traffic, a new route was constructed through the valley during the early part of this century. The present day N2 national road has largely been constructed on this route. Since its original development, this road has been upgraded and widened several times to accommodate the increase in traffic.

3.2 The Valley is presently utilised by its residents, recreational visitors and members of a skiboat club. Most of the property owners are only temporarily resident during the holiday seasons. Members of the George Skiboat Club (the Skiboat Club) launch boats from the outspan to go out to sea via the mouth of the Kaaimans River. The coast line passing the Valley affords commercial opportunities to two companies with concessions to harvest oysters. Being a part of the Garden Route, the Valley is also visited by many international tourists.

3.3 Over the past decade, the Kaaimans River Valley has been the subject of conflict between the different involved parties and also between some of these parties and the provincial and national governments. It is as a result of these disputes that complaints have been addressed to my office.

4. THE COMPLAINTS

4.1 The N2 National Road

The construction and upgrading of that part of the N2 that passes through the Kaaimans River Valley have been the subject of much controversy over the years. The first major road was constructed during 1947/1948. During the construction of this road much dumping of construction rubble took place. This had the effect that during floods and heavy rain storms a down wash of this rubble occurred which resulted in infilling of the estuary. The pool of the waterfall was filled almost to the top with rubble as a result of this. During the early eighties a major upgrading of the N2 resulted in comprehensive construction works taking place in the Kaaimans River Valley. The widening of the road caused an infilling of the mouth of the Kaaimans River that reduced its original width by almost a third. Again, a lot of rubble was left in the Valley after the construction.

4.1.1 The major complaint relating to the construction and upgrading of this road is that a proper impact study of this sensitive area had not been done to establish the effect of this construction and the increase in traffic on this environment, as part of the planning process. It has also been argued that the construction and the negative effects thereof could have been prevented by building this road on an already proclaimed route, just on the opposite side of the hill.

4.1.2 A further complaint is that the volume of traffic that uses this road causes tremendous noise pollution, especially during the summer holiday season. It has also been emphasised that this part of the N2 is very dangerous and that many fatal accidents have occurred here over the years.

4.2 The infilling on the eastern bank of the Silver River.

The property now owned by Mr Cohen on the eastern bank of the Silver River can only be reached by boat or ferry or by travelling on a very steep and dangerous route over the adjacent hill. Mr Cohen caused quite a stir when he started with an infilling of the riverbed in an attempt to construct a road along the banks of the river from the N2 to his house. This was eventually stopped by CNC. During the flood of 1997 Mr Cohen s house was completely destroyed and much of the infilling washed out to sea. However, he has erected a new building on the premises, which is still the subject of some dispute between him and the local authority.

4.3 Access to the river by engine driven boats.

In terms of the law (that will be discussed later), an engine driven boat is not allowed on the Kaaimans River without a permit issued by CNC. Presently, as has been the case for a number of years, the traffic on the river consists mainly of small rowing craft belonging to the owners of the properties on the western bank and the skiboats that belong to members of the Skiboat Club. The first permit to authorise these skiboats to sail on the Kaaimans River was issued more than ten years ago. A launching site has been constructed, in terms of an agreement with CNC at the outspan. The coastline in this area is quite inhospitable as far as the launching of skiboats to sea is concerned. The Kaaimans River offers the easiest, albeit quite dangerous, access to the sea.

4.3.1 Boat launching at the outspan resulted in the clearing of some vegetation. The 1984 road construction resulted in more extensive clearance and compaction of the track leading to the outspan. This improved parking and vehicle maneuvering facilities.

4.3.2 The complaints against the use of the river by Skiboats mainly come from the residents on the western bank and day visitors. This group visit the estuary extensively, and in some cases exclusively, during the summer months, swimming and canoeing in the estuary channel and surfing and swimming at the estuary mouth on the seaward side of the railway bridge.

4.3.3 The complaints are that the skiboats are a hazard to swimmers, surfers and canoeists. It is also stated that powerboats cause oil pollution in the water and that the owners of skiboats dump fish offal in the river. Owners of the houses on the western shore also complain about the noise made by the skiboats and the damage that the wave action of the boats cause to their properties. It is alleged that the members of this Club are responsible for the destruction of protected vegetation at the outspan.

4.4 The destruction of protected plants at the outspan

It has been alleged that certain indigenous plants that are protected by the provisions of the Forest Act, 1984, have been destroyed at the outspan. As this kind of action is a criminal offence, this matter has been referred to the South African Police Service for an investigation.

4.5 The construction of a jetty and an access path on the eastern bank of the Kaaimans River.

The Skiboat Club has complained that one of the owners of a property on the western bank has constructed a jetty and footpath on the eastern bank, without the approval of CNC and in contravention of the provisions of the Sea-shore Act.

5. THE INVESTIGATION

5.1 My office has had comprehensive correspondence with representatives of all the relevant parties over a period of more that two years. We have also consulted in detail with the authorities involved, including CNC, the Wilderness Municipality, the South African Police Service, the Senior Public Prosecutor at George and Dr G A Robinson, the former Chief Executive Officer of the National Parks Board. During my personal visit to the area I have also had discussions with residents of the Valley and the Chairperson of the Skiboat Club.

5.2 As a result of enquiries and suggestions by my office, CNC obtained the services of Allanson Grange Associates, a firm of Consulting Aquatic Ecologists and Environmental Scientists, to undertake a public scoping exercise and preliminary environmental assessment of the Kaaimans River Valley and the estuary. The report in this regard was concluded during November 1996 and is attached as "Annexure B".

5.3 The different legal provisions pertaining to the conservation and management of the area as well as the status of the outspan have been studied in detail and the issue of the legal status of a "servitude" that might involve the outspan has been referred to the State Attorney for an opinion.

6. THE LEGAL POSITION

6.1 Visits to and the occupation of the area known as "the outspan".

The history of this valley shows that an area on the river bank had been used during the early days of travelling by oxwagon and horses as an outspan. As already indicated, it is alleged that this is the area now being used by the Skiboat Club to park their vehicles and to launch skiboats. (Shown as 8 on Annexure A). However, there is also evidence from senior members of the community that the original outspan had been closer to where the N2 is today. Be that as it may, the area presently utilised by the Skiboat Club forms part of land that belongs to a Mr Jackson. The Skiboat Club apparently has a long standing arrangement with Mr Jackson to use this area for their purposes.

6.1.1 The property concerned, today known as the farm "Kraaibosch", was originally granted and transferred to a Mr A G de Smidt by the then Government on 8 July 1905. In terms of the Deed of Grant, this land was granted subject to several conditions pertaining to the conservation and accessibility by the public of this area. It is specifically stated that any "orderly" person desiring to visit the Kaaimans or Swart Rivers will be allowed on this land or any portion thereof, provided that such person shall be in possession of a permit issued by the "Conservator of Forests". Such permit could limit the term of stay of any person and was also supposed to regulate, in the interest of the general public, the conditions under which a visit to this property would be permitted. It is also stated that no "green tree or green wood of any kind shall be cut or removed from any portion of the land hereby granted except by the proprietor under a permit or license issued to him by the Conservator of Forests..."

6.1.2 The complainants argue that CNC has inherited the authority and functions of the "Conservator of Forests". Consequently, they insist that permits should be issued to one and all that visit the outspan and that CNC has a duty to protect the vegetation on this land.

6.1.3 From the available facts and as a result of the lapse of time it is impossible to tell who the eventual successor of the "Conservator of Forests" is. It might be the Department of Water Affairs and Forestry, CNC, the national Department of Environmental Affairs and Tourism or even South African National Parks. It might also be that the Conservator of Forests had been a statutory appointment that disappeared in later years. The State Attorney's office is of the view that the authority of this Conservator might rather now be that of a national department than of the provincial government.

6.1.4 This uncertainty and the fact that it had clearly been the intention when this property was transferred that access by the public should be regulated, are some of the reasons why I have decided make recommendations on how this undesirable situation can be resolved.

6.1.5 The Kaaimans River is a "tidal river" as defined by the provisions of the Sea-shore Act, 1935. In tempts of section 2 of this Act, the sea-shore and the sea, which includes the water and the bed of a tidal river as well as the land between the low-water mark and the high-water mark, belongs to the President. It is provided by section 3 that any portion of this land belonging to the President might be leased, inter alia, for the construction or improvement of wharves, piers, jetties and landing stages. It is in terms of this provision that a contract of lease was signed between the Skiboat Club and the former Provincial Administration of the Cape of Good Hope. This agreement was entered into on 27 October 1988 and provided for the lease of a piece of land on which a slipway has been constructed.

6.1.6 The term of the contract was a maximum period of 5 years or until such time as an alternative launching site had been made available, whichever happened first. However, by 1997 it was found that this arrangement was still continuing and enquiries revealed that the provincial government allowed the term of the agreement to be extended tacitly by accepting the lease payment annually. It was only then that action was taken by informing the Skiboat Club that the agreement has been terminated. This obviously has some legal implications and CNC has been threatened with legal action in this regard. Presently, the slipway is being used illegally, without any action being taken against the culprits as a result of this threat.

6.2 The skiboats on the Kaaimans River.

6.2.1 Access to the Kaaimans River by engine driven boats is regulated by the provisions of a provincial Proclamation, No 357 of 1972 (the Proclamation). The Proclamation was issued under the provisions of the Nature Conservation Ordinance, 1965 (now the Nature and Environmental Conservation Ordinance, 1974).

6.2.2 Clause 48 of the Proclamation provides, inter alia, that no person shall use any boat or other craft which is propelled by an engine on the Kaaimans River unless he is the holder of a permit authorising him to do so.

6.2.3 The Skiboat Club has been using the Kaaimans River as a launching site for almost 20 years. The first permit in terms of the Proclamation was issued during 1988. Ever since, this permit has been renewed annually, despite objection by the riparian owners on the western bank. As a result of the complaints to my office regarding this matter, and pending the outcome of my finding, the permit has not been renewed at the end of 1996. Presently some members of the Skiboat Club are using the river without a permit.

7. THE REPORT OF THE PUBLIC SCOPING EXERCISE AND PRELIMINARY ENVIRONMENTAL ASSESSMENT

7.1 One of the major complaints by several of the interested parties is that no proper environmental impact study to establish the effect of the influences by man on the Valley had been done. The effect of the construction of the N2 through the Valley, of the skiboats on the river, of the utilisation of the outspan, and the infilling of the river bed are the main influences that might have a negative and destructive effect on the conservation of the Valley.

7.2 As a result of my suggestions in this regard, CNC consulted Allison Grange Associates (Consulting Aquatic Ecologists and Environmental Scientists) and provided them with a brief to conduct a preliminary study of the Valley as a first step towards a possible solution of the disputes between the interested parties and to assist CNC in the future management of this area.

7.3 This report should not be evaluated as being a comprehensive environmental impact study. Most of the information on which this report is based have been obtained from submissions made by the interested and affected parties. There has, unfortunately, not been any scientific study of the contents of the water, the effect that the turbulence and fumes of the engines of powerboats might have on the environment, etc. However, the report does come to valid and important conclusions. These can be found from page 26 of Annexure B and are repeated in this report for the sake of convenience and to allow me to make some comments.

7.3.1 "The Kaaimans River Valley is an outstanding heritage site of cultural, historical and environmental significance. Its value to the Garden Route as an ecotour destination and the associated economic benefits to the region have not been realised."

This confirms that the Valley deserves to be protected and conserved properly.

7.3.2 "The Valley has suffered considerable and in many cases unnecessary degradation particularly as a result of the N2 National Road construction and associated activities. Laws protecting the conservation status of the Valley were blatantly contravened during road construction."

Some of the damage has been repaired after the upgrading in 1984, but the negative effect that this road has on the Valley cannot be overemphasised.

7.3.3 "Conservation officials failed in their responsibility to take action to prevent despoliation of the Valley, particularly during the road construction."

Although I agree that the conservation authorities have not acted responsibly at all times in preventing the destruction of the Valley, the efforts that have gone into resolving some of the disputes during the recent past and to prevent further irresponsible conduct have not gone unnoticed. It should be kept in mind that CNC has limited powers in terms of the applicable legislation to manage the area.

7.3.4 "Environmental management of the Kaaimans Valley is complicated by the existing fragmented control and jurisdiction".

CNC, the Wilderness Municipality and the Southern Cape District Council have jurisdiction over different aspects of the Valley. Almost all the land in this Valley belongs to private persons. The Wilderness Municipality and the Southern Cape District Council have certain responsibilities in terms of the law to manage, for example, the development of these properties, to maintain proper health standards on these properties, etc. These functions are not conservation driven. Should it happen that the conservation of that area that does not belong to private persons be transferred to another authority, these local authorities will still be responsible for the same functions. However, as far as CNC is concerned, conservation of the Valley can only be managed in terms of the applicable legislation. Presently, this area does not enjoy the status of a nature reserve. The only legislation in terms of which CNC is obliged to act is the Sea-shore Act, 1935 and the Nature and Environmental Conservation Ordinance, 1974. This does not allow officials of CNC to develop a proper management plan for the conservation of the area.

7.3.5 "The nature of the conflict between Kaaimans Valley I&AP's (interested and affected parties) is a direct result of the activities with the N2 road construction."

This might be regarded as an over simplification. Although the N2 gave rise to conflict between the interested parties and the authorities, several subsequent occurrences, which cannot be ascribed to the construction, have been the cause of several disputes.

7.3.6 "There is evidence to suggest that certain actions were undertaken during the road construction in order to benefit certain user groups of the Valley, however it would be difficult to prove this conclusively. Further investigation may be required".

7.3.7 "Damage to the Outspan was primarily (but not totally) the responsibility of the road construction workers and was probably in contravention of the conditions of the public servitude as well as other environmental laws. Further investigation of the conditions of the public servitude are necessary."

The conditions of the Grant have been discussed above.(See par 6.1.1)

7.3.8 "The river and the estuary are not suited to the operation of powered boats.'

Most of the members of the Skiboat Club are experienced boatsmen and have been using the river and the estuary for years without any major accident or incident.

7.3.9 "Management action aimed at multiple use of the estuary (skiboats/recreational users: swimmers etc) is not a practical option in this instance. Recreational users should Like priority."

This is a valid statement under the present circumstances. Attempts to resolve the disputes amongst the interested parties have failed.

7.3.10 "There is an indication that the conditions of the permit pertaining to the use of the slipway imply that the Skiboat Club was responsible for finding an alternative launching site within reasonable time. This requires further investigation of the permit details. The outcome has relevance to the claimed rights of the use of the Kaaimans by the Club."

The possibility of an alternative launching site is discussed in par 8.

7.3.11 "All cases of reclamation of land and infilling which were highlighted were in contravention of the Seashore Act and resulted in considerable environmental damage."

7.3.12 "The majority of reclamation/infilling damage was caused by the road construction. It is unlikely that total restoration of infilled areas will be feasible. Since property title may not be improved through reclamation of land beneath the high water mark; instances where this may have occurred should be investigated further."

A complaint of the contravention of the provisions of the Sea-shore Act, in the case of the infilling that was done by Mr Cohen, has been lodged with the South African Police Service.

7.3.13 "Further development of the Kaaimans Valley is inevitable since development rights presently exist, however, further development is undesirable unless adequate environmental safeguards are imposed."

The problem is that development rights have been granted in respect of private property. No measure exists by means of which these rights can now be restricted. As long as the owners of the properties concerned keep to the conditions-for development, they will be acting within the scope of their legal rights.

7.3.14 "Alien invasive vegetation is a threat to the environmental integrity of the Kaaimans Valley and a programme of alien removal should be embarked upon."

7.3.15 "Alteration of the normal river flow and tidal characteristics of the estuary may have occurred in response to the following: the impoundment of the Swart River by the George Dam, infilling/reclamation of river channels and the causeway construction. These factors may have consequences for the maintenance of an open tidal inlet and further investigations should be considered."

7.3.16 "Erosion of the retaining walls by skiboats is unlikely to be significantly greater than that generated by wave action and flood scour, however should be investigated further as part of (7.3.15) above."

7.3.17 "Water bourne pollution in the form of oil and petrol residues or faecal bacteria from septic tanks is unlikely to be a major threat at this time.

Further study should be considered. The alleged pollution from the George water treatment plant should be investigated."

7.3.18 "The tree planting programme to provide natural screening from road noise should be reinstated."

The recommendations of the report include the establishment of a proper management structure and of an environmental management plan that will include the restoration of the Valley, following the further investigations referred to and the termination of the permits allowing the Skiboat Club access to the Kaaimans River.

8. ALTERNATIVE LAUNCHING SITE FOR SKIBOATS

8.1 The lease agreement between the Skiboat Club and the Provincial Administration of the Western Cape pertaining to the slipway clearly envisaged a short term arrangement until such time as an alternative launching site had been found. However, it is not clear who was supposed to find and develop such an alternative.

8.2 The Skiboat Club instructed a firm of consulting civil engineers, Geustyn, Loubser and Streicher, during February 1991 to investigate the viability of launching sites in the George vicinity with a view to obtain expert opinion on the possible alternatives to the Kaaimans estuary. The engineers came to the conclusion that only three possible launching sites exist in the area, namely Swartvlei, Kaaimans River and Herolds Bay.

8.3 From an economical and environmental point of view, it was concluded that Swartvlei would not be a suitable option. Although the western corner of Herolds Bay seems to be ideally suited for the construction of a structure for the launching of skiboats, the costs at the time were estimated at R0,5 mil to R1 mil.

8.4 As far as the Kaaimans River is concerned, the report of this investigation recommends, as the most viable option, that an access road be constructed on the eastern bank of the Kaaimans River towards the estuary. The costs involved were estimated at between R 250 000 and R 300 000.

8.5 The recent flood in the area has shown that a road on the eastern bank of the river would not have survived and would most likely have caused further degradation of the area. This is despite the fact that the construction of such a road would cause further infilling, which is environmentally unacceptable.

8.6 From the above report I can only conclude that no economically viable and environmentally acceptable alternative for launching from the outspan in the Kaaimans River exists at present.

9. FACTUAL FINDINGS ON THE COMPLAINTS

9.1 The N2 National Road.

9.1.1 It is a fact that the construction of this road has had and still has a destructive and degrading effect on the Kaaimans River Valley. The left avers of this construction has caused infilling and the noise from the traffic is at times overwhelming as it echoes through the Valley. It is, however, evident that the vegetation on the banks of this construction has resettled over the years. I am of the view that much can still be done by means of proper management and care to ensure further restoration.

9.1.2 Prior to the construction of this part of the N2, another national road had been proclaimed from George to Knysna. However, at the time of the construction, the estimated costs of this alternative to the road that we have today, were such that it was un-affordable. The part of the N2 that runs through the Kaaimans River Valley is extremely scenic and it also includes a view point from where a breathtaking view of the Wilderness area is possible. In view of the tourist attraction this has, it is highly unlikely that an alternative road would result in a significant reduction in ordinary traffic. Even should this be the position, the expense of the alternative, keeping in mind the costs of the construction and repairs to the present road, would most likely not be affordable in the present economic climate in our country.

9.1.3 What is regrettable is that a proper impact study had not been done by the authorities prior to the construction of this road. The restoration and conservation of the banks of this road should form part of any environmental management plan for this area.

9.2 The infilling by Mr Cohen

9.2.1 Mr Cohen has obvious difficulty as far as access to his property is concerned. During the latter part of 1996 he, without any approval, managed to construct an infilling on the eastern bank of the Silver River with the view of building an access road to his house. As this action was in contravention of the provisions of the Sea-shore Act, a complaint was lodged with the authorities and Mr Cohen was instructed to cease this action. During 1997 this area was flooded after heavy rains and much of the infilling as well as Mr Cohen's house had been washed out to sea. As far as the removal of the remainder of the infilling is concerned, it appears that such an endeavour might even cause further serious damage to this environment.

9.2.2 Mr Cohen recently lodged an application with CNC to build an access road along the banks of the Silver River. This application was advertised and a number of objections have been lodged. I have been informed that the application was not approved.

9.2.3 The Cohen-experience has clearly shown that the authority that has to guard against contravention of the Sea-shore Act in this Valley simply does not have the capacity to do so effectively. It has been conveyed to me and my staff on many occasions by officials of CNC that they do not have the manpower and resources to police all the areas in the George vicinity to prevent this kind of transgression.

9.3 Access to the river by engine driven boats

The so called "skiboats" that use the Kaaimans River estuary to launch to the sea and the fact that these boats take to the water at the outspan and sail on the Kaaimans River, have been the main bone of contention that has been referred to my office. My investigation of this matter has brought me to the conclusion that the parties involved are a mere minority when compared with the many members of the public that travel through and that visit this area regularly. The two groups concerned are basically the owners of properties on the western bank of the Kaaimans River and the members of the Skiboat Club.

9.4 The destruction of protected plants at the outspan

This matter was investigated by the S A Police Service and submitted to the Senior Public Prosecutor at George for a decision on whether or not prosecution should follow. The Senior Public Prosecutor informed my office that, after thorough investigation, he had found that there was insufficient evidence to convince a court of law that an offence had been committed by a particular person or group. I requisitioned the case docket in question and after perusing same I could not come to the conclusion that the Senior Public Prosecutor had not applied his mind properly in reaching his decision.

9.5 The construction of a jetty and an access path on the eastern bank of the Kaaimans River.

CNC has informed the person concerned that the construction of the jetty is illegal and that the matter should be dealt with in terms of the provisions of the Sea-shore Act. This matter is still being pursued further by CNC.

10. THE AUTHORITY AND POWERS OF THE PUBLIC PROTECTOR

10.1 Section 182 (1) of the Constitution of the Republic of South Africa, 1996, (the Constitution) provides that the Public Protector has the power to investigate any conduct in state affairs or in the public administration in any sphere of government that is alleged or suspected to be improper or to result in any impropriety or prejudice. The Public Protector has to report on such conduct and he/she also has the power to take appropriate remedial action.

In the matter under consideration, I have come to the conclusion that the failure by the authorities during 1948 and 1984 to conduct a proper environmental impact study of the Kaaimans River Valley and the estuary prior to the construction and upgrading of the N2 national road had been improper.

The present situation in the Valley is such that the lack of resources and authority of CNC do not enable the Provincial Government to manage this area effectively. The history, vegetation, animal life and scenic beauty of this valley deserve effective and efficient measures to ensure its protection and preservation.

I am of the view that this area should be managed by an authority with more resources and powers to ensure not only the conservation thereof, but also to allow the interested and affected parties and the public at large to share in what it has to offer in a regulated and responsible manner.

11. THE AFFECTED RIGHTS OF THE PARTIES IN TERMS OF THE BILL OF RIGHTS (CHAPTER 2 OF THE CONSTITUTION)

11.1 In terms of Section 9 of the Constitution, everyone is equal before the law and has the right to equal protection. Equality in terms of the Bill of Rights includes full and equal enjoyment of all rights and freedoms.

11.2 As far as the environment is concerned, Section 24 of the Constitution provides that everyone has the right to an environment that is not harmful to their health or well-being and to have the environment protected, for the benefit of present and future generations through legislation and other measures that:

• prevent pollution and ecological degradation;
• promote conservation; and
• secure ecologically sustainable development and the use of natural resources while promoting justifiable economic and social development.

11.3 Freedom of movement is ensured by Section 21. It specifically states that everyone has the right to enter, to remain in and to reside anywhere in the Republic.

11.4 The State, in terms of Section 7(2) of the Constitution, is obliged to respect, promote, protect and to fulfill all the rights referred to above.

11.5 The Bill of Rights obliges the State to ensure that members of the Skiboat Club be allowed to enjoy their freedom and the right to go out to sea and to sail on the Kaaimans River. However, it also obliges the State to protect and to conserve the Kaaimans River Valley for the benefit of present and future generations. Under the present circumstances the rights of the general public, the residents of the Valley and the members of the Skiboat Club are in conflict which can only be resolved should one or more of these rights be limited. The limitation of fundamental rights is provided for by Section 36 of the Constitution. In terms of this section, these rights may be limited only to the extent that the limitation is reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom, taking into account relevant factors including:

• the nature of the right;
• the importance and purpose of the limitation;
• the relation between the limitation and its purpose; and
• less restrictive means to achieve the purpose.

11.6 It is also provided that rights may be limited "only in terms of law of general application".

11.7 Taking, in casu, into account the applicable provisions of the Bill of Rights, certain questions immediately arise, for example:

11.7.1 Has the fact the Skiboat Club had been allocated a permit issued by CNC in terms of a "law of general application" not established in principle, a right of access and freedom that can only be limited if valid and legally justifiable motivation to take such a step exists?

If there is such a possibility of a right of access, how can this be balanced against the rights of the riparian owners, the general public and the duty of government to protect environmentally sensitive areas and to promote eco-tourism?

11.7.2 As the history of developments in the Valley indicate a failure on the part of conservation authorities to conserve and to protect this environment, should proper and efficient measures not be introduced to manage this Valley properly in this regard and to give effect to the provisions of Section 24 of the Constitution?

11.8 I am of the view that these issues can only be addressed effectively after further scientific investigations have been done as far as, for example, the effect of the skiboats on the river, the present and future developments on the river banks and the conservation of plant and animal life are concerned. This should be done in a regulated manner by an authority that has the powers, in terms of laws of general application, to limit the rights of some, if necessary, to the benefit of the majority of our democratic society.

12. POSSIBLE SOLUTIONS

12.1 The Lake Areas Development Act. 1975

12.1.1 The Minister of Agriculture may declare any land comprising of or adjoining a tidal lagoon, a tidal river or any part thereof to be a lake area. Land under the control of a provincial administration shall be so declared only after consultation with the Premier concerned.

12.1.2 Lake areas in terms of this Act are controlled, managed and developed by the Lake Areas Development Board. Section 11 of this Act provides for the powers and objects of this Board. From these provisions it is clear that the legislature intended the Board basically to manage the "development" of the area rather than the protection or conservation of such an environment. Although the Kaaimans River Valley might be classified as a "lake area" in terms of the definition contained in the provisions of this Act, such a declaration would, in my view, not effectively address the lack of management of the environmental issues of this Valley.

12.1.3 I am not convinced that this Act provides a viable solution to the controversies pertaining to the Kaaimans River Valley.

12.2 The National Parks Act. 1976

12.2.1 The Wilderness National Park is situated only a few kilometers east of the Kaaimans River. This National Park comprises mainly of tidal rivers and lakes and has been in operation for a number of years. Previous initiatives to have the Kaaimans River Valley declared to be part of the Wilderness National Park were not successful. The main reason provided to us for this failure is one of provincialism and national politics. However, during discussions with the former Chief Executive Officer of the National Parks Board, Dr Robinson, he confirmed that the local infrastructure of the National Parks Board would easily be able to manage the protection and conservation of the Kaaimans River Valley and that the National Parks Board would, most likely, support the inclusion of this area as part of the Wilderness National Park.

12.2.2 The history, wildlife and scenic beauty of the Valley make it an ideal candidate to qualify to be declared to be part of a National Park as envisaged by this Act. However, the effect of such a declaration is quite dramatic. Section 21 of the Act, inter alia, provides that no person, other than an officer or employee acting under authority of the Board shall enter or reside in a park without the permission of the Board or any officer or employee authorised to grant such permission. Section 23 states that permission to enter or reside in a park may be granted subject to conditions and only for the purpose of:

• health, study or recreation or matters incidental thereto;
• travel or transport over such routes as may be defined by regulation;
• transacting any lawful business with or concerning any person within that park; or
• enabling any person in the employ of the Government or of any provincial administration to carry out any official duty.

12.2.3 The Act does not make provision for a general right of access to a group of people such as recreational visitors, motorist etc.

12.2.4 That part of the N2 national route that goes through the Kaaimans River Valley forms an indivisible part of this area. Any conservation effort would be futile should it not include this road. The restoration of the results of the construction are of fundamental importance to any long term environmental management plan pertaining to this area. Should the Kaaimans River Valley and estuary be declared to be a National Park, it would mean that every motorist that travels through this area and every visitor would have to obtain a permit before being allowed entrance. The administrative burden alone, taking into account the many thousands of motorists that travel through the Valley annually, would require a substantial infrastructure that could cost a small fortune. It would also restrict the many recreational visitors, such as swimmers, canoeists, etc and would be very difficult to regulate, especially during the holiday seasons.

12.2.5 Although the whole of the Kaaimans River Valley might qualify to be declared to be a National Park, I am of the opinion that such action would not be viable in practice and that it might cause an unreasonable and unjustifiable limitation on the freedom to visit and to enjoy this area.

12.3 The Environment Conservation Act. 1989

12.3.1 Section 16 of this Act provides that the "competent authority" (the Premier) of a province may declare any area defined by him, to be a protected natural environment. Such protected natural environment may only be declared if in the opinion of the Premier there are adequate grounds to presume that the declaration will substantially promote the preservation of specific ecological processes, natural systems, natural beauty or species of indigenous wildlife or the preservation of biotic diversity in general. The Kaaimans River Valley and the estuary, without doubt, qualifies to be declared to be such a "protected natural environment".

12.3.2 Section 16(1) (b) provides that the declaration should be preceded by consultation with the owners of and the holders of real rights in land situated within the defined area.

12.3.3 I am convinced by my investigation of this matter and as a result of the contact that my office has had with the owners of the properties on the western bank of the river and with Mr Cohen, that this consultation would be a mere formality. All the interested and affected parties, including the members of the Skiboat Club, expressed their concern about and commitment to the conservation of this area.

12.3.4 Once the area concerned has been declared to be a protected natural environment, the Premier may issue directions in respect of any land or water in this area in order to achieve the general policy and objects of this Act. The preamble to this Act states that the Act is meant to provide for the effective protection and controlled utilisation of the environment and for matters incidental thereto.

12.3.5 The provisions referred to in paragraph 6.2 above pertaining to the regulation of power driven boats on the Kaaimans River could, under these circumstances, be repealed or reviewed and proper and comprehensive measures be introduced, following further investigation, to facilitate the management of the Kaaimans River Valley in a manner that will give effect to the objects of section 24 of the Constitution and this Act.

12.3.6 The issue of the presence and control of skiboats on the Kaaimans River, the restoration of the damages caused by the construction of the road and the infilling and the protection of vegetation and wildlife, etc can properly be attended to by means of these directions in conjunction with the provisions of the Regulations that have been promulgated pertaining to the Outeniqua Sensitive Coastal Area in terms of the provisions of sections 21,22 and 26 of the Act.

12.3.7 Section 16 (6) provides that the Premier may, with the concurrence of a local authority or government institution, assign the control and management of a protected natural environment to such local authority or government institution. In this regard I have already referred to the difficulties that CNC has in managing an area such as the Kaaimans River Valley effectively. I have also indicated that South African National Parks would be in a far better position to enforce any directions pertaining to the conservation of this area. Consequently, I am of the view that the control and management of this area should be assigned to South African National Parks.

12.3.8 In terms of Section 17 of the Act, the Premier may in respect of any protected natural environment establish a management advisory committee to advise him with regard to the control and management of such protected natural environment. The Premier determines the membership of a management advisory committee. The members are to be appointed from persons who represent the interests of:

• the Department of Environmental Affairs and Tourism;
• the provincial administration concerned;
• every local authority whose area of jurisdiction falls wholly or partly within the protected natural environment;
• the owners of, and the holders of real rights in land situated within that protected natural environment; and
• the users of such land.

12.3.9 It is furthermore provided that should, in casu, the control and management of this area be assigned to South African National Parks, the appointment of members of a management advisory committee shall be made with the concurrence of South African National Parks. To ensure the future participation and input of all the affected and interested parties involved in the Kaaimans River Valley, as far as the management thereof is concerned, it might be advisable that the Premier considers establishing a management advisory committee. This would enable South African National Parks, as the manager, to have a forum where complaints from different sources can be discussed and solutions be found. This would also enable the Premier to be informed on a regular basis of the situation in this area and of the possible need for further or amended directions.

12.3.10 I am of the view that the provisions of this Act contain a viable and affordable solution to resolve the complaints pertaining to the Kaaimans River Valley.

13. PRELIMINARY RECOMMENDATIONS

In a preliminary report that I submitted during May 1998 to South African National Parks, the Department of Environmental Affairs and Tourism, the Premier of the Western Cape and the Department of Environmental and Cultural Affairs of the Western Cape Provincial Government, I recommended that:

13.1 the Premier of the Western Cape (the Premier) acts in terms of the provisions of section 16 (1) of the Environment Conservation Act, 1989, (the Act) to declare the Kaaimans River Valley and the estuary to be a protected natural environment;

13.2 the Premier, subsequent to the finalisation of the declaration referred to in 13.1 and following an investigation into the relevant matters, issues directions as provided for in section 16 (2) of the Act;

13.3 the Premier assigns the control and management of the Kaaimans River Valley and the estuary to South African National Parks in terms of the provisions of Section 16 (6) of the Act; and

13.4 the Premier establishes a management advisory committee for the Kaaimans River Valley and the estuary as provided for by Section 17 of the Act.

In response to these recommendations I have been informed of several discussions that have taken place amongst the government agencies involved. According to the latest information obtained from the Premier of the Western Cape, it has been mutually agreed that the most viable method of giving effect to my recommendations would be to proclaim the land in the area that belongs to the State as part of the Wilderness National Park and to declare the remainder of the area to be a protected natural environment.

14. RECOMMENDATIONS

In terms of the provisions of section 182(1)(b) and (c) of the Constitution, 1996, and section 8(1) and (2) of the Public Protector Act, 1994, I recommend that:

14.1 South African National Parks, the Department of Environmental Affairs and Tourism, the Premier of the Western Cape (the Premier) and the Department of Environmental and Cultural Affairs co-operate in pursuing the proclamation of part of the state land in the area of the Kaaimans River Valley and the estuary as part of the Wilderness National Park, provided that such incorporation does not result in an inappropriate limitation on travelling through and visits to the area by the general public

14.2 As far as the remainder of the area is concerned:

14.2.1 the Premier acts in terms of the provisions of section 16 (1) of the Environment Conservation Act, 1989, (the Act) to declare the Kaaimans River Valley and the estuary to be a protected natural environment;

14.2.2 the Premier, subsequent to the finalisation of the declaration referred to in 13.1 and following an investigation into the relevant matters, issues directions as provided for in section 16 (2) of the Act;

14.2.3 the Premier assigns the control and management of the Kaaimans River Valley and the estuary to South African National Parks in terms of the provisions of -Section 16 (6) of the Act; and

14.2.4 the Premier establishes a management advisory committee for the Kaaimans River Valley and the estuary as provided for by Section 17 of the Act.

14.3 The recommendations referred to in this paragraph be implemented as a matter of urgency.

ANNEXURE B

KAAIMANS RIVER VALLEY AND ESTUARY

CONCLUSION OF PUBLIC SCOPING EXERCISE AND PRELIMINARY
ENVIRONMENTAL ASSESSMENT

A report for

DEPARTMENT OF NATURE CONSERVATION

GEORGE

by

ALLANSON GRANGE ASSOCIATES

Consulting Aquatic Ecologists and
Environmental Scientists

19 November 1996

Allanson Grange Associates, PO Box 1186, Knysna 6570.
Tel: (0445) 826107, Fax: (0445) 22092

CONTENTS

1. Scoping exercise: Background and terms of reference

1.1. Integrated Environmental Management: Public Scoping and Environmental Assessment
1.2. Kaaimans River Valley: Draft Scoping Report and Environmental Assessment

2. Kaaimans Valley: Overview of the Natural Environment features and Social and Historic Development

3. Site Description

4. Synthesis of Issues and Concerns

4.1. Impacts upon the natural environment of the Kaaimans River Valley

4.1.1. Reclamation/infilling
4.1.2. Pollution
4.1.3. Destruction of the natural environment and disruption of natural processes
4.1.4. Development issues
4.1.5. Visual aesthetic considerations

4.2. Kaaimans Valley: Uses, needs and requirements

4.2.1. Natural environment, cultural and historical heritage site
4.2.2. Boat use and George Skiboat Club
4.2.3. Access to property
4.2.4. Other uses

4.3. Health and safety issues

4.3.1. N2 National Road
4.3.2. Safety and the recreational use of the estuary and coastal zone

4.4. Socio-economic implications
4.5. Control, jurisdiction and legal aspects

4.5.1. Jurisdiction and control
4.5.2. Authorities and responsibility
4.5.3. Rights, permits and legal implications

5. Summary, Comment And Conclusions

5.1. Summary and analysis
5.2. Summary conclusions

6. Recommendations

7. Acknowledgements

Appendix I

KAAIMANS RIVER VALLEY AND ESTUARY - SCOPING EXERCISE AND PRELIMINARY
ENVIRONMENTAL ASSESSMENT.

1. SCOPING EXERCISE: BACKGROUND AND TERMS OF REFERENCE.

Over the past 10 years or more the Kaaimans River Valley has become the focus of extreme conflict between user groups. As the first step in a process aimed at an amicable and equitable solution, and with a view to introducing management principles for future use, Allanson Grange Associates were appointed by Mr Fanie Bekker, Assistant Director (Scientific Services) of Cape Nature Conservation, Cape Provincial Administration, to conduct a preliminary Scoping Exercise involving Interested and Affected Parties (I&AP's).

1.1. Integrated Environmental Management: Public Scoping and Environmental Assessment.

The Scoping Exercise and Environmental Impact Assessment (EIA) are both components of a widely accepted process known as Integrated Environmental Management (IEM) which was developed for the Department of Environmental Affairs and Tourism (DEA&T) and presented in a series of six documents (Department of Environment Affairs; The Integrated Environmental Management procedure, 1992).

The IEM procedure is a planning process applicable to development proposals, environmental management etc. and is designed to identify problems, resolve or mitigate negative effects, implement appropriate management principles and enhance positive features. In this particular instance the IEM has through necessity been applied retrospectively since considerable environmental degradation had already occurred. Its use lies in providing the means to resolve I&AP conflict and identify future management action required, however.

The Scoping exercise represents an important component of the IEM procedure. Information provided by I&AP's provides the basis for an environmental analysis. Where opinions are divided and essential information is lacking, a recommendation is made that an environmental impact assessment is undertaken to address these issues. This may include socio-environmental as well as natural environment issues.

1.2. Kaaimans River Valley: Draft Scoping Report and Environmental Assessment.

Interested and Affected Parties (I&AP's) were identified in consultation with Cape Nature Conservation, and issues and concerns raised during a series of scoping workshops held with stakeholders during April 1996. A draft scoping document was submitted to the client on 28 May 1996, comprising the minutes of 1&AP interviews, a synthesis of the concerns expressed, and a preliminary environmental assessment by the consultant based upon the information provided.

The draft scoping document was circulated among I&AP's for comment with a 30 July 1996 closing date for responses. This final scoping report is essentially a revision of the draft scoping report and incorporates responses to the draft document as well as the original material.

Please Note: It is important to recognise that issues raised in Section 4.0 reflect the views of the I&AP's and not those of the consultant.

Details of I&AP's consulted in the first and subsequent response phases of the report are given in Appendix 1.

2. KAAIMANS VALLEY: OVERVIEW OF THE NATURAL ENVIRONMENT FEATURES AND SOCIAL AND HISTORICAL DEVELOPMENT.

The Kaaimans River Valley is situated on the Southern Cape coast several kilometres west of the town of Wilderness. The Valley is characterised by steep gorges of great geological antiquity, having been formed by fracturing through crystal warping after the fragmentation of Gondwanaland and subsequent river erosion over millions of years. The present appearance, discounting man-made artefacts, is largely the result of the moderate climatic conditions of the Holocene during the past 6000 years. During the present interglacial of some 18 000 years the coastal rivers were gradually filled with marine sediments to form shallow estuaries following the consequent rise in sea level as the icecaps melted and the sea warmed. The striking geological features exposed in the gorge stem from this.

Before the interference of man, the steep slopes of the gorge were covered by indigenous forest and scrub vegetation. The river and estuary exhibit the characteristic dark brown peat-stained appearance of the humic acids and tannins associated with the run-off from the fynbos vegetated slopes of the catchments.

Since the late Stone Age, the first human inhabitants of the Valley were indigenous people (Strandlopers) who left only rock paintings and shell middens. Little impact was made upon the area until the advent of the early European settlers and explorers. Travellers on horseback or with ox-wagons moving between the southern and eastern Cape were forced to cross the Kaaimans Valley via a steep and difficult track which crossed the river where the present day causeway is situated. Remnants of the tracks leading out of the valley to the west and east are still evident.

The Outspan alongside the river crossing came into being as a rest area for wagon trains ascending the difficult route out of the Valley. The historical Outspan and wagon track route were eventually registered as a public servitude across the farm "Kraaibosch" and this servitude is protected in law. Originally, a "Protector of Forests" was appointed to conserve the natural environment, and more recently this responsibility was handed over to Cape Nature Conservation.

As the original wagon route could not be developed to accommodate more modern traffic, a new route was constructed through the Valley during the early part of this century. The present day N2 National Road has largely been constructed over the newer route. Since its original development, the road has been upgraded and widened several times, the last being in 1984 when the road was expanded considerably to accommodate the increase in traffic.

It is apparent that the 1984 upgrading of the N2 National Road served as a catalyst at least in part for the conflict between users of the Kaaimans River Valley and this has continued to the present day.

3. SITE DESCRIPTION.

The area of the Kaaimans River Valley is shown in Figure 1. The Kaaimans Valley is characterised by the confluence of the Swart and Silver Rivers. The route of the N2 National Road through the Valley is shown by (1). The Swart River is impounded in its upper catchment by a reservoir which provides drinking water to the town of George (2). Immediately downstream of the bridge crossing the Swart River is a small weir which provides water to residents of the western bank properties (3). Downstream of this is a waterfall, a recognised scenic attraction of the Valley for many years (4).

Several hundred metres upstream of the roadbridge crossing the Silver River is the property of Mr D. Cohen, owner of Kaaimanskloof Nature Reserve (5). The old caravan site, originally belonging to Dr Van Zyl and now by Nocurts Properties (Pty) Ltd is situated on the land beneath the bridge crossing the Silver River and immediately adjacent to it (6). The causeway crossing the river (also the historic oxwagon crossing point) is situated just downstream of this bridge (7).

The Outspan (and area used for parking cars and trailers) is situated at (8) and is currently accessed by the road turn-off from the N2 at (9). The remnants of the historic wagon train route, which passes adjacent to the Outspan is shown by (10). The slipway used by the George Skiboat Club is situated at the Outspan (11). The area known as "The peninsular" is shown at (12). The plots of the western bank property owners are situated downstream of the Outspan towards the mouth of the estuary (13).

4. SYNTHESIS OF ISSUES AND CONCERNS.

The initial scoping exercise reported upon the issues raised by I&AP's. As a result of feedback from the discussion document, the diversity of issues has grown both in number and complexity. In order to deal with these sequentially, these issues have been divided into categories:

4.1. Impacts upon the natural environment of the Kaaimans River Valley.

Despite the impacts that it has endured, it is clear that I&AP's regard the Kaaimans River Valley as an outstanding heritage site of cultural, historical and environmental significance. For this reason, environmentally concerned I&AP's are adamant that the Valley should suffer no further degradation through the activities of Man.

Factors identified by I&AP's as constituting the degradation (or perceived degradation) of the natural environment of the Kaaimans Valley can be distinguished as a follows:

• Reclamation of land previously under the high water mark and deposition of construction materials in watercourses.
• Pollution: Litter, chemical, bacteriological and noise pollution.
• Disruption to and destruction of the natural environment and natural environment processes.
• Development considerations: Road and dam construction, residential and resort developments.
• Visual aesthetic considerations.

These are discussed in greater detail in the following sections:

4.1.1. Reclamation / infilling:

The negative impact of refilling reclamation of areas under the high water mark was widely reported by I&AP's. Accusations were directed mainly towards those responsible for the N2 Road upgrading construction, the original owner of the old caravan park site, the western bank property owners and Mr Cohen:

Road construction: It is considered unacceptable that the upgrading of the N2 resulted in considerable amounts of rubble being pushed into the bed of the estuary on the eastern bank (opposite the western bank properties) when the original plans illustrated a road built on concrete supports to minimise fill.

Further, the opportunity was apparently also taken to increase the fill under the N2 bridge on Dr Van Zyl's caravan park property, to restore the access road to the site and to initiate an access road to the beach from the Kaaimans River turnoff. It is alleged that the latter was done on behalf of the George Skiboat Club to facilitate a beach launching site. During the course of construction processes (particularly blasting), rock rubble was deposited in the small reservoir basin (situated just above the waterfall) as well as the waterfall basin and this has subsequently found its way into the estuary following floods. In addition, rock rubble was used to fill in a section of the river from the Outspan to the waterfall in order to accommodate a caterpillar digger; the intention being to remove rubble from the waterfall basin. Although much of the rubble was removed including that laid to support the digger, a considerable amount of the rubble still remains.

The more recent attempts by Mr Cohen to create an access road to his property on the banks of the Silver River several hundred metres upstream of the N2 Roadbridge has also brought condemnation from I&AP's, both in terms of the constriction of the river channel as well as the legal implications associated with refilling below the high water mark (see also Section 4.5). Similarly, various I&AP's have questioned the legality of the retaining walls and jetty structures of the western bank properties. Again, this is dealt with in Section 4.5. The potentially negative consequences to river flow of the causeway leading to the Outspan have also been raised as an issue.

The major environmental concerns associated with reclamation and infilling are; disturbance of normal river flow (including alteration to the natural salinity regime and tidal movement, and increased potential for greater flood scour and erosion), loss of intertidal habitat and disturbance and loss of benthic sublittoral habitat.

4.1.2. Pollution:

Major concerns centre around the estuary, the N2 National Road and the Outspan.

The traffic noise from the N2 National Road is the principal source of irritation from this source and affects mainly the western bank property owners. Complainants recognise that unless a bypass is built, they will have to accept traffic noise. Residents fully supported the programme of tree planting to curb noise impact. This programme was stopped when the trees died after allegedly being irrigated with (saline) water from the estuary. Residents would like to draw the attention of the authorities to this mistake and the need for the programme to be reinstated. A sector of I&AP's are also unhappy about the noise created by outboard motors of skiboats particularly since this occurs most frequently early in the morning and late at night.

Pollution of the waterway is perceived as a problem originating from a variety of sources which include outboard motors, septic tanks, disposal of fish offal, road stormwater run-off and precipitates from water treatment processes at the George water treatment plant. Where perceived problems have been attributed to either the Skiboat Club or the western bank Property Owners, they have responded by strongly denying the allegations made. Concerns regarding future developments and waste disposal were also noted; indicating that plans for new housing developments to use septic tanks and/or dispose of sewage waste into the aquifer would be unacceptable. A long term pollution monitoring programme is supported however a short term study is considered of little overall importance.

Littering has been highlighted as a problem but this is confined to the Outspan. Those responsible are allegedly the day visitors and Skiboat Club members as well as members of the public who frequent the area late at night (mainly at weekends). A contrary argument that there is no untidiness at the Outspan, has also been put forward.

4.1.3. Destruction of the natural environment and disruption of natural processes:

Many concerns were voiced regarding actions resulting in the degradation of the natural environment characteristics. These concerns are further subdivided into the following headings; vegetation disturbance, erosion, river/estuary flow patterns and resource exploitation.

Environmentally concerned I&AP's regard the clearance of vegetation from the Outspan as an act of unparalleled vandalism. In this regard, they also note that the area was of cultural and historical significance because of the characteristics of the natural environment and this resulted in the Outspan's protection in law since the early part of the century. The disregard of its cultural, historical and environmental significance and subsequent consequences were particularly distressing. The loss of vegetation included a number of (protected) milkwoods including a specimen estimated at over 600 years old. The damage to the Outspan occurred gradually; initially through the use of vehicles along a rough track leading to the slipway at the Outspan. More significant damage took place during the time of the road construction in 1984. Although it is alleged that the George Skiboat Club were responsible for removing vegetation including milkwoods, they counter that only dead vegetation was removed from the site after the compaction of the access road and clearing of the Outspan in 1984. They maintain that the damage to vegetation at the Outspan was caused by the contractors responsible for removing rubble from the waterfall basin. Although this has been disputed because the road access created for rubble removal is routed behind the cleared Outspan area, it is countered that the diggers and trucks required a turning circle which accounts for the clearing of the Outspan. Other I&AP's have indicated that the general public rather than George Skiboat Club were responsible for more recent degradation while George Skiboat Club deny that there has been any further degradation.

A secondary problem is also now apparent in the form of alien invasive vegetation, particularly black wattle, which has infested the catchment. I&AP's have expressed concern at the spread of this vegetation and some have embarked on a programme of removing these trees.

The issue of river bank erosion from boatwash has been raised as an issue; property owners on the western bank allege that this has also caused undermining of the retaining walls of their properties. These allegations are refuted strongly by George Skiboat Club, citing that wave wash, natural floods and wind action have a much greater effect. Western bank property owners have also expressed concern that in the event of floods, infilling of the river and estuary upstream of the properties may lead to greater flood scour erosion of the banks, leading to further undermining of the retaining walls.

Several I&AP's were concerned at the perceived disruptions to natural processes, particularly flood scour and estuarine salinity gradients. Factors highlighted as cause for concern include the George Dam and its potential impact on flood scour, and closure of the estuary mouth and the accumulation of road construction rubble behind the causeway (displaced from the waterfall basin by floods) and its effect on tidal flow patterns. In general, the perception exists that the Swart River is degraded whereas the Silver River is near-pristine.

4.1.4. Development issues:

I&AP's have indicated that the present status of Kaaimans Valley reflects poor planning practice and that overdevelopment has already taken place. The N2 National Road construction is considered to have had the most serious negative impact upon the system followed by the construction of the George Dam. There is considerable opposition to the plan to develop a sectional title chalet and restaurant complex on the site of the old caravan park (belonging to Nocurts Properties (Pty) Ltd), citing that there was no consultation with I&AP's prior to approval and that further environmental degradation will result. Similarly, concern has been expressed that if all the western bank property owners exercise their rights, it will similarly result in negative overdevelopment.

4.1.5. Visual aesthetic considerations:

Both the N2 National Road and the properties of the western bank of the Kaaimans have been criticised for their negative visual impact on the Kaaimans Valley.

4.2. Kaaimans Valley: Uses, Needs and Requirements.

In seeking the best resolution of the dispute surrounding the Kaaimans Valley, it is essential to take cognisance of the uses to which the Valley's resources are put as well as users needs and requirements:

Users of the Kaaimans Valley comprise residents, club members, commercial ventures and recreational visitors. Property owners are represented by those permanently as well as temporarily resident. Club activities comprise offshore skiboat fishing which is represented by a recreational and commercial component. The coastline also affords commercial opportunities for two Oyster companies with concessions to pick oysters along the coast near the Kaaimans Valley. The proposed restaurant (Nocurts Properties (Pty) Ltd) is the only commercial activity centred within the Valley. Visitors are represented both by local day visitors and non-local (South African and foreign) tourists. Local tourists are more likely to utilize the area for recreational purposes while visitors from further afield visit primarily for the scenic and natural environment qualities of the Valley.

The needs and requirements of users of the Valley were clearly stated:

4.2.1. Natural environment, cultural and historical heritage site:

Day visitor recreational use (including locals utilizing the site for picnicing, boating, swimming, shore-based surf fishing etc. and visitors from further away visiting for site-seeing and natural environment purposes) are considered by some I&AP's to be compatible with the cultural, natural environmental and historical heritage value of the Valley. They argue that its popularity stems from the opportunities for safe swimming and canoeing and appreciation of the previously unspoilt natural beauty (river, estuary, waterfall and deep gorges). They argue that the safety hazards to swimmers imposed by the use of outboard powered boats and the associated degradation of the Outspan (which is attributed to its use as a launching facility by George Skiboat Club) as being non-compatible with its historical use. These I&AP's also highlighted an associated problem of an undesirable component of the general public using the Outspan late at night, this having been made possible through the area being opened up as a car park.

Owners of properties on the western bank wish to see the Kaaimans Valley used for low impact, environmentally-sensitive activities which, notwithstanding the present negative impact of the N2 National Road, are in keeping with the tranquil ambience once characteristic of the Kaaimans Valley. They believe that this philosophy is encompassed within the historic public servitude, registered at the turn of the century, which provides access to the Outspan for the general public but with conditions to protect the conservation status of the area.

4.2.2. Boat use and George Skiboat Club:

The requirements of George Skiboat Club are essentially twofold; they require a launching site for their boats and secondly, access along the estuary in order to go out to sea. Due to the relatively inhospitable coastline, the Kaaimans site has so far provided the only cost-effective means of putting skiboats to sea. Boat launching at Kaaimansgat necessitated some clearing of vegetation from the Outspan and the track leading to it. The 1984 road construction resulted in more extensive clearance and compaction, in the process conveniently providing greatly improved parking and vehicle manoeuvring facilities. The clearance of vegetation at the Outspan has facilitated the use of this area by other groups. Some of these are legitimate users such as swimmers and picnicers, but also include non-permit holding powerboat users (principally rubber duck operators). George Skiboat Club have stated that all boats should fall under the control of the Club to ensure boat operation according to a code of conduct.

Boats transit to sea via the estuary, passing the western bank properties in the process. Access via the Kaaimans estuary, whether exiting or entering, is normally restricted to high tides when there is sufficient depth over the sandy bar at the mouth of the estuary. Skiboat activities are further restricted, often for several months at a time, by the periodic shallowing and narrowing of the channel (by natural seasonal events) which prevent the skiboats from going out. Members recognise that there are problems associated with the use of powered  boats from Kaaimans and have stated that they would move to an alternative launching site provided that it was close by, and acceptable to their needs. They have stated, however, that any attempt to ban their activities would be discriminatory. Engineering studies have been commissioned both by thoseforthe use of Kaaimans as a skiboat launching facility, and those against it. The results of these reports are largely contradictory, although in both cases the difficulty in operating skiboats through the mouth of the Kaaimans estuary is recognized.

4.2.3. Access to property:

The only other holder of a permit to use a powered boat is Mr D. Cohen, this being required to facilitate access to his riverfront property on the Silver River tributary. The current road access to Mr Cohens property is via a steep hill which meets the original wagon track now known as Remskoen Street (in Wilderness Heights). Mr Cohen has stated that he believes it is unreasonable that he is expected to accept road access via this route and for this reason initiated a shorter access route by infilling a small section of the south bank of the Silver River tributary - an extension of infilling done at an earlier stage when the property was owned by Dr Van Zyl. Infilling of a distance not less than 50 metres would be required to reach the property (work has been stopped pending legal action by Cape Nature Conservation). Mention was made of a proposed pontoon bridge system in the draft scoping report, however, according to Mr Cohen, this was just one of a number of options being considered.

Western Bank property owners used a communal jetty on the eastern bank of the Kaaimans estuary to aid boat access to their properties on the western bank. The road construction of 1984 brought about the removal of this jetty together with designated parking areas. No alternative provision was made for these property owners.

4.2.4. Other uses:

Although peripheral to the issues addressed above, other users of the Kaaimans Valley, or users of resources having an impact on the Valley which should be noted include; the Roads Board (National Road pass), George Municipality/Department of Water Affairs (water storage reservoir impounding the Swart river), Railways (Kaaimans Valley section of the historic steam railway route) and commercial oyster pickers utilizing the Kaaimans coastline. The broader perspective of the importance of the Kaaimans Valley as a significant tourism destination amenity to Wilderness and the Garden Route generally, based upon its historical and natural environment significance, was also emphasized.

On a more general point, the issue of multiple use of the Valley was raised. I&AP's were prepared to accept multiple use providing this could be reasonably accommodated both on a spatial and temporal scale. The authorities have stated that multi-use should be considered where practical, and where this is not found to be possible, the needs of the majority should prevail.

4.3. Health and safety issues.

Safety to users of the Kaaimans Valley was an issue variously raised by I&AP's. The perceived threats to users were essentially of two categories:

4.3.1. N2 National Road:

The high number of accidents and fatalities on the Kaaimans Pass section of the N2 National Road was highlighted as a serious safety problem (a figure of 60 fatalities since the opening of the road in 1984 was quoted). This, together with the inevitable increase in traffic volume is cited as continuing evidence of the need for the construction of an alternative route (a bypass further inland).

4.3.2. Safety and the recreational use of the estuary and coastal zone:

Swimmers, surfers and canoeists using the Kaaimans are represented by both residents (mainly western shore property owners) and day visitors (mainly from George/Wilderness). This group use the estuary extensively in the warmer months; swimming and canoeing in the estuary channel, and surfing and swimming at the estuary mouth outside of the bar on the seaward side of the railway bridge. Of the swimmer/ surfer/ canoeists consulted, the majority consider the activities of members of the George Skiboat Club as well as non-club power boat operators, as a significant threat to their safety. The reasons provided are as follows:

1. The mouth is narrow and shallow and subject to high wave action. The pillars of the railway bridge provide an additional obstacle. These factors in combination make navigation through the mouth a hazardous exercise and this has been demonstrated by the numerous occasions of boats getting into difficulty and becoming stranded. In the light of these considerations, the suitability of Kaaimans as a launch site for skiboats is seriously questioned.

2. Operations in the channel, both by skiboats transitting to and from the sea, as well as rubber ducks using the estuary only, are a hazard to canoeists and swimmers through the risk of collision. The hazard is considered real due to the narrow nature of the channel. Despite statements to the contrary by George Skiboat Club, skiboats (as well as rubber ducks) are reported to use the estuary at high speeds.

In response to these comments, George Skiboat Club strongly deny that their activities represent a safety hazard to other users quoting the fact that there has never been a collision between a Skiboat and bather during the period they have been operating there. They also emphasize the fact that the club has strict safety rules for putting to sea which are designed to minimize the danger to other users.

An additional danger highlighted is the presence of cables used to guide rowing boats belonging to property owners of the western across the river. The view is held that these cables should be removed.

Risks to health as a result of the recreational use of the Kaaimans estuary were also identified as an issue by I&AP's. Concern has been expressed that leakage from septic tanks from properties on the western banks of the river may be contaminating the estuary with faecal bacteria representing a health hazard where there is direct contact recreational use. It has also been proposed that oil residues from outboard engines pose a similar threat. These aspects are also dealt with under "pollution", Section 4.1.2.

4.4. Socio-economicimplications.

A few comments were made regarding the socio-economic implications of activities in the Kaaimans Valley. Skiboat Club representatives requested that it be noted that their activities provide trade to certain Cafe's in the town of Wilderness. It was also noted that the skiboat's catch represents a cheap source of fish to the local inhabitants of Wilderness. The importance of the Valley as an ecotour destination has also been raised. Whilst it was recognized that Kaaimans is a tourist attraction, the point was raised that development of the site as an attraction directed towards its historical and natural environment heritage would be of considerable benefit to Wilderness and the Garden Route in general. It was felt that this great potential was not being realized at all.

4.5. Control, jurisdiction and legal aspects.

4.5.1. Jurisdiction and control:

Jurisdiction of the Kaaimans Valley, responsibility for control of activities and the status of activities in relation to the law elicited a large response from I&AP's and the following sections attempt to provide a logical sequence of the issues and concerns raised:

I&AP's drew attention to the fact that jurisdiction and control of the area is extremely divided, resting variously with Cape Nature Conservation (CNC), the National Parks Board (NPB), Wilderness Local Council (WLC), and the Southern Cape District Council (SCDC). It was requested that control over the area be clarified. Certain I&AP's believe that a single controlling authority would be more beneficial and of these, some requested that the National Parks Board take over as the controlling authority. The National Parks Board point out that this could only be done in terms of the Lake Area Act, since the Kaaimans Valley does not fulfil the criteria for a National Park.

4.5.2. Authorities and responsibility:

A number of accusations were levelled at Cape Nature Conservation regarding neglect of responsibility to the Kaaimans Valley. I&AP's criticisms are directed at the past failure of CNC to protect the natural environment and more specifically, the lack of controls placed on the road construction engineers and their failure to prevent the "illegal" access road to the Outspan (created during the road construction) from becoming "officialized". I&AP's have also criticized the continuing lack of presence and checks on activities by CNC officials at Kaaimans.

4.5.3. Rights, permits and legal implications:

Issues were raised with regard to property ownership, public/ property owner rights and activities. These are dealt with under the following headings:

1. Sectional title chalets.

Nocurts Properties (Pty) Ltd emphasized the fact they have existing rights to build 8 sectional title chalets and a restaurant. I&AP's opposed to this development have objected that Wilderness Local Council did not consult with the public during the planning process. In addition, a question has been raised regarding the true boundaries of the property. This stems from the fact that the original owner, Dr Van Zyl, was responsible for a considerable amount of infilling and reclamation of riparian zone beneath the high tide mark. I&AP's have requested that the original surveyors maps be scrutinized and a surveyor consulted since Nocurts Properties (Pty) Ltd cannot buy a property with a better title than was originally owned by Dr Van Zyl. It has been stated that the present owners cannot claim ownership even if the land has been reclaimed, since by law, it belongs to the state. The point is made that the actions of Dr Van Zyl were illegal and in contravention of the Seashore Act.

2. Wilderness Kaaimanskloof (Pty) Ltd.

The issue was raised that the reclamation/infilling carried out as an attempt to provide shorter road access to the riverfront property is both unreasonable and in contravention of the Seashore Act. Several I&AP's have requested that the owner be made responsible for removing the infill rubble.

3. Western bank properties.

It was noted that Erf #197 (western bank) is subdivided to accommodate 13 properties of which 5 have already been built. In view of the potential impact of another 8 properties, it has been requested that a status report on property ownership of these plots be undertaken. It was also noted that although some of the retaining walls date to the early part of the century, others were constructed below the high water mark after the Seashore Act was In place and thus contravene the Act.

4. The Outspan and estuary.

Much of the conflicting viewpoints centre around the use of the Outspan and to an extent the associated use of the estuary. The volume of correspondence pertaining to the issues at stake identify the importance of these issues. The opposing viewpoints can be categorized into those people who wish to see the Outspan in its former state and who resent the degradation caused by what they believe were illegal activities, and those who require the use of the Outspan for launching boats and parking vehicles. It should be noted that the Outspan is situated on land belonging to Mr Jackson (the owner of the farm "Kraaibosch"), however the rights of the public are protected by a servitude which was registered across the farm in 1907. George Skiboat Club insist that they have a right to use the Outspan for their activities; their opponents insist that the Club's use of the Outspan contravenes the regulations of the servitude.

Associated with this are questions regarding the legality of the permits issued to allow the George Skiboat Club to launch boats and to allow the Club's skiboats access along the estuary to go out to sea. In addition, I&AP's demand that those responsible for the clearance of vegetation from the Outspan (trees and understorey) be identified and prosecuted, both in terms of contravention of the servitude and the absence of permits to remove protected tree species (milkwoods). I&AP's request that the conditions of the servitude be upheld and state that these include the protection of the fauna and flora of the Outspan and the rights of the public to use the area subject to a permit application. They state that the "occupation" of the Outspan, construction of a slipway and damage to indigenous vegetation by George Skiboat Club are all in contravention of the servitude regulations. It is noted that a permit to remove a milkwood has been issued only once; to Mr Jackson, the owner of the farm "Kraaibosch". Despite this, numerous milkwoods were removed from the Outspan.

It was also stated that boat launching at Kaaimans was never intended to be anything other than a temporary measure pending the Club finding an alternative site, the onus being on the Club to find an alternative within a reasonable period of time. I&AP's state that the George Skiboat Club have failed in their responsibility to find an alternative. In response, the Club deny that their use of the Outspan or the construction of the slipway are illegal.

The permits, their conditions and legality have been questioned extensively during this study and clarity has been sought from Cape Nature Conservation on this issue:

Use of the Kaaimans River by George Skiboat Club is subject to two permits:

1. Use of the river by a motorized boat: This is subject to Article 73 of the Natura1 and Environmental Conservation Ordinance of the Cape 1974. This prohibits the use of a motorboat unless a permit is issued. A permit was first granted to George Skiboat Club just over ten years ago, on condition that it was renewed on an annual basis. The permit lapsed on 6 October 1996 and although an application for renewal was received by Cape Nature Conservation, they have indicated that they will not renew the permit automatically, renewal being subject to the outcome of the final scoping report.

2. Use of slipway to launch boats: The permit to use the slipway is subject to Article 3 of the Seashore Act 1935. A clause in the contract specifies that the contract must be renegotiated within 5 years, ie it can be carried forward annually for a maximum of 5 years. According to CNC, the lease was a temporary arrangement with the understanding that George Skiboat Club would undertake to find an alternative site for launching before the permit was due for renegotiation. The annually renewable permit issued to the Club lapsed on 30 April 1996. Despite this, fees were inadvertently accepted by Cape Nature Conservation, and they recognise that this may in law amount to tacit agreement of the annual permit renewal with George Skiboat Club. Thus, should CNC wish to refuse renewal of the permit, this may be possible immediately or only in April 1997, depending upon the outcome of a legal decision. Several I&AP's reject this concept of tacit agreement.

Nonetheless, CNC state that it was their intent that the renegotiation of the permit to use the slipway could only be considered subject to the Integrated Environmental Management (IEM) procedure being followed; ie a scoping exercise and (should it proves necessary) an environmental impact assessment. There is debate surrounding the legality of the slipway construction; several I&AP's regard the construction as contrary to the Seashore Act, however other I&AP's regard the permit for the use of the slipway as proof that it is legally acceptable. An alternative view held is that the permit issued effectively legalized the slipway.

Both permits have at the present time expired and use of the river in contravention of the law may result in prosecution.

An additional issue raised by I&AP's surrounds the conditions of the public servitude (the current access road and parking area for users of the slipway, and general picnic site). It has been stated that the use of this area (which includes the Outspan) is subject to a permit application; In this respect the public servitude includes clauses designed to protect the natural environment features (fauna and flora) of the servitude. It has been claimed that the damage caused to the Outspan as well its use by George Skiboat Club is contrary to its function as a nature area for the public use and would preclude the issuing of a permit to George Skiboat Club.

5. Other aspects:

It has also been alleged that skiboat crews are selling their catch. Although several George Skiboat Club members are commercially licensed, the remainder are not legally entitled to dispose of their catch for profit. Other allegations were received of (unspecified) property owners taking shellfish from the rocks at the mouth of Kaaimans above the daily quota allowed. According to the Department of Sea Fisheries there has never been a prosecution in regard to either complaint.

A general request was made by I&AP's that investigations should be conducted to determine the extent of illegal activities undertaken, to determine those responsible and demand that they be compelled to restore the degradation they caused, or to compensate in some manner.

5. SUMMARY, COMMENT AND CONCLUSIONS.

Section 4 outlines the issues and concerns raised by I&AP's. In this Section we provide an analysis of the information and in doing so, attempt to;

1. distinguish between issues and non-issues,
2. assess the validity of conflicting viewpoints,
3. place an importance rating on the issue raised, and
4. address mitigating factors.

A series of conclusions based on the analysis is provided at the end of this Section.

5.1. Summary and analysis.

The nature of the dispute between I&AP's at the Kaaimans Valley stems from the significant environmental degradation of the Valley brought about by the construction of the new N2 National Road construction in 1984. This construction work is considered by all I&AP's to have had the greatest negative impact on the Valley. The Kaaimans Valley has long been regarded as an important heritage site encompassing historical, cultural and natural environment attributes. The decision to route the expanded N2 National Road through the Valley was of great disappointment to those who valued the heritage value of the Valley and its quiet, peaceful attributes.

This resulted in a campaign for a route bypassing the Valley further inland, however the needs of the State at the time dictated that the N2 National Road should be routed through the Valley. With hindsight, the high accident rate and ongoing maintenance costs possibly demonstrate the inappropriateness of the route selected, and these factors provide the basis upon which some I&AP's continue to argue for a bypass. Despite the environmental degradation caused, most I&AP's accept that the road was built out of necessity.

If the planning of the new N2 National Road failed to take cognisance of the Valley as a heritage site, the construction activities were undertaken with complete disregard for the environmental sensitivity of the site. Although the ethic of sensitivity towards the natural environment was less well established among developers then than it is now, the road planners nonetheless failed totally in their responsibility to try to accommodate the needs and concerns of I&AP's.

In addition, construction methods deviated from plans shown to I&AP's and as a result, considerable and unnecessary environmental degradation resulted, ranging from the destruction of indigenous vegetation to infilling of tidal waterways. Clearance of indigenous vegetation at the Outspan to provide access for construction vehicles to Kaaimansgat to remove rubble from the waterfall basin despoiled an area of considerable historic and environmental value, despite the area being protected by the public servitude. Although the reasons may never become apparent, road construction workers were also engaged in construction activities which were beyond the scope of the road itself and which are not shown in the plans, eg. the attempt to provide an access road to the beach from the N2 turn-off.

Thus, the insensitive attitude with which the road construction was undertaken, compounded by the lack of intervention by conservation officials served to alienate environmentally concerned l&AP's. The fact that other users gained from certain construction activities; e.g. the clearance of the Outspan in order for road construction vehicles to remove rubble from the waterfall basin, and the infill deposited around the old caravan site, created further suspicion of motives. The environmentally insensitive activities of those responsible for the road construction also set a precedent for other similarly destructive activities, such as the attempt to create an access road by infilling along the banks of the Silver River.

The fragmented control of the area between the different authorities has been identified as a management problem, however one cannot really argue this in mitigation of the lack of environmental control during the road construction process. Fragmented control should rather be seen as a potential obstacle to future cohesive management of the Kaaimans Valley.

George Skiboat Club have been using the Kaaimans River to launch boats for some 20 years. Initially, launching was done from the causeway which was unsuitable and subsequently a slipway was built at the Outspan. At the time of construction, the slipway was almost certainly in contravention of the Seashore Act, however the permit which was subsequently issued for its use effectively legalized the structure. Access to the Outspan at this stage was via a rough track and the establishment of the track and clearance of bush was gradual. Consequently, responsibility for this action is difficult to establish although it contravened the spirit of the public servitude. The 1984 road construction work was considerably more damaging, clearing the Outspan almost entirely and compacting the track and present day parking area. While the road construction work clearly must have contravened laws protecting the indigenous vegetation (particularly the removal of milkwoods), and the Skiboat Club acknowledge the subsequent removal of vegetation (albeit dead material), it is not clear that the Skiboat Club acted illegally. Nonetheless, the compacting of the track and clearance of the Outspan caused significant damage and served the interests of the Club.

The Club require two permits to use the Kaaimans River; the permit to use a motorized boat in the estuary, and a second permit to use the slipway. The permit to use the estuary has lapsed and renewal is subject to the outcome of this report. Whether or not the slipway permit has lapsed depends upon the outcome of a legal decision regarding "tacit consent" due to inadvertent acceptance of fees. This requires further investigation. It appears also that from a strictly legal viewpoint, a third permit to use the Outspan may also be required under the conditions of the public servitude. This also requires further investigation.

Cape Nature Conservation maintain that the permit to use the slipway was a temporary arrangement as evidenced by the 5 year renegotiation clause, the implication being that it was the responsibility of the Skiboat Club to find a suitable alternative. The temporary nature of the permit and its implications in terms of the Skiboat Club's responsibilities is important and further clarity is required. Should the Skiboat Club be found to have failed in their responsibility to have found an alternative, their claim to a right to use the slipway cannot be upheld. Other power boat users (specifically rubber duck owners) are using the estuary illegally. Adequate policing would prevent this. The statement by George Skiboat Club that these should be forced to join the club in order to be subject to their regulations is rejected; these boats only operate in the estuary, a water body of limited area which cannot be regarded as suitable for power boat activities. The only justifiable reason to allow permits for skiboats to use the estuary is on the basis of access to the sea from the launching point.

I&AP's have fiercely defended their respective "rights" to use the estuary for their own purposes and this represents a very crucial aspect of this report. From the information at hand, it is clear that the Kaaimans estuary is not suitable for Skiboat operations. The estuary is extremely small; the channel is narrow and shallow. In addition, the vertical supports of the train bridge at the mouth together with wave action over the sandy bar, make navigation hazardous. Added to this, the mouth is often completely unnavigable as a result of natural seasonal bar building processes which either close the mouth off from the sea or reduce the depth to the point where boats cannot operate.

The Kaaimans river mouth and estuary are used for recreational purposes (particularly swimming, canoeing and surfing) by local residents, the broader public of George and Wilderness, and also visitors to the area. These I&AP's are adamant that the skiboats represent an unacceptable safety hazard to swimmers. Although the Skiboat Club dispute this risk, it is unacceptable that even the perception that a threat exists should modify recreational users activities. In this instance we must conclude that the needs of recreational users are incompatible with Skiboat Club members needs, and secondly that due to the narrow confines of the estuary and the nature of the activities, it would not be possible to implement management action (eg. zoning) to mitigate the problem. If the needs of the majority are to take priority, then this would suggest that the Skiboat Club should be excluded.

In seeking an optimal management solution, it is also important to take into account factors such as tourism and local business. The value of the Kaaimans Valley as a tourism destination has been demonstrated in the past. The changing political climate and emphasis on ecotourism have brought the Garden Route back into the spotlight once again. The potential benefits which stem from the Kaaimans Valley as a day-visitor heritage site, particularly if the area was formally a conservancy, would in our opinion outweigh the benefits arising from the local cafe trade, tourists watching boats exiting the mouth of the Kaaimans, and fish sales to local inhabitants of Wilderness by the few commercially licensed boats legally entitled to sell their retch Should this claim be disputed, it is important that a socio-environmental tourism study comprise part of an environmental impact assessment to address important unresolved Issues.

The issue of reclamation along the site of the old caravan park (adjacent to land owned by Nocurts Properties (Pty) Ltd),and infilling along the Silver River by the owner of Kaaimanskloof Nature Reserve is less complex. The restoration of the access road to the old caravan site (following the flood damage) and reclamation of land below the high tide mark beneath the roadbridge crossing the Silver River was excessive and resulted in considerable degradation of the river bed. This action was~also in contravention of the Seashore Act. Although it is possible that the extent of the instill was to assist the previous owner to extend his property boundaries, it would be difficult to prove this. It also seems likely that the cost of removing the infill and the negative impacts of doing so would outweigh the potential benefits. Nonetheless, the issue raised that a property owner cannot better his title, or sell a better title than he already owned is valid, and we recommend that further investigation of the property boundary belonging to Nocurts Properties (Pty) Ltd be undertaken. The attempt at creating an access road along the Silver River to Kaaimanskloof Nature Reserve was clearly illegal and should be stopped.

There appear to be a number of other incidences where the Seashore Act has been contravened, however, in magnitude they are insignificant relative to damage caused by infilling along the old caravan site and by road construction along the eastern bank of the estuary. Consequently, it would seem pointless to pursue these further unless action can similarly be taken against those responsible for the major damage. In future, a strict policy of no further contravening of the Seashore Act under any circumstances should be enforced.

In view of the proposal that the Kaaimans Valley should be formally declared a heritage site, it is important to address the issue raised that existing and proposed houses (western bank properties) and proposed chalets (Nocurts Properties (Pty) Ltd) have, or will have a negative impact upon the aesthetic character of the Valley: The existing houses are largely historic properties dating from around the turn of the century and are generally considered to be intrinsic to the historic character of the Valley. Although other land owners have legitimate rights to develop, it would be preferable if these rights are not exercised if a heritage site status is conferred on the Kaaimans Valley, since further development will detract from the overall aesthetic appeal of the area.

Should development take place, it is essential that developers be requested to provide an environmental impact assessment and encouraged to design properties with the historical and environmental sensitivity of the surroundings in mind. The disposal of waste particularly sewage waste should be strictly controlled and conservancy tanks rather than septic tanks should be standard. This should be addressed in development EIA's.

Several other more minor, uncontested yet relevant issues were expressed. These are not discussed here but are included in the following section (Section 5.2. Summary conclusions).

5.2. Summary conclusions.

1. The Kaaimans River Valley is an outstanding heritage site of cultural, historical and environmental significance. Its value to the Garden Route as an ecotour destination and the associated economic benefits to the region have not been realised.

2. The Valley has suffered considerably and in many cases unnecessary degradation, particularly as a result of the N2 National Road construction and associated activities. Laws protecting the conservation status of the Valley were blatantly contravened during the road construction.

3. Conservation officials failed in their responsibility to take action to prevent despoliation of the Valley, particularly during the road construction.

4. Environmental management of the Kaaimans Valley is complicated by the existing fragmented control and jursidiction.

5. The nature of the conflict between Kaaimans Valley I&AP's is a direct result of the activities associated with the N2 Road construction.

6. There is evidence to suggest that certain actions were undertaken during the road construction in order to benefit certain user groups of the Valley, however it would be difficult to prove this conclusively. Further investigation may be required.

7. Damage to the Outspan was primarily (but not totally) the responsibility of the road construction workers and was probably in,contravention of the conditions of the public servitude as well as other environmental laws. Further investigation of the conditions of the public servitude are necessary.

8. The river and estuary are not suited to the operation of powered boats.

9. Management action aimed at multiple use of the estuary (skiboats/recreational users: swimmers etc) is not a practical option in this instance. Recreational users should take priority.

10. There is an indication that the conditions of the permit pertaining to the use of the slipway imply that George Skiboat Club were responsible for finding an alternative launching site within a reasonable time. This requires further investigation of the permit details. The outcome has relevance to the claimed rights to the use of the Kaaimans by the Club.

11. All cases of reclamation of land and infilling which were highlighted were in contravention of the Seashore Act and resulted in considerable environmental damage.

12. The majority of reclamation/infilling damage was caused by the road construction. It is unlikely that total restoration of infilled areas will be feasible. Since property title may not be improved through reclamation of land beneath the high water mark; instances where this may have occurred should be investigated further.

13. Further development of the Kaaimans Valley is inevitable since development rights presently exist, however, further development is undesirable unless adequate environmental safeguards are imposed.

14. Alien invasive vegetation is a threat to the environmental integrity of the Kaaimans Valley and a programme of alien removal should be embarked upon.

15. Alteration of the normal river flow and tidal characteristics of the estuary may have occurred in response to the following: The impoundment of the Swart River by the George Dam, infilling/reclamation of river channels and the causeway construction. These factors may have consequences for the maintenance of an open tidal inlet and further investigations should be considered.

16. Erosion of retaining walls by skiboats is unlikely to be significantly greater than that generated by wave action and flood scour, however should be investigated further as part of (xv) above.

17. Water borne pollution in the form of oil and petrol residues or faecal bacteria from septic tanks is unlikely to be a major threat to health at this time. Further study should be considered. The alleged pollution from the George water treatment plant should be investigated.

18. The tree planting programme to provide natural screening from road noise should be reinstated.

6. RECOMMENDATIONS.

We are of the view that sufficient information is contained within this report to provide an informed assessment of the management decisions which must be taken to settle the dispute between Kaaimans River Valley l&AP's. Based on our understanding of the area, we would also like to provide input for a future management scenario which would best meet the needs of the broader community from both a socio-environmental and economic perspective.

In some instances, conclusions have been drawn although information to settle an issue beyond all reasonable doubt was lacking. In view of this and recognising that it is not possible to satisfy the needs of all l&AP's, we recommend that an environmental impact assessment be undertaken should the conclusions of the report remain in dispute.

The following steps should be taken:

(i) Distribute the final scoping report to all l&AP's and assess the content of the report from feedback responses, possibly through a public meeting.

If the contents of this report are accepted by I&AP's, we recommend:

1. Terminate permits issued to George Skiboat Club for the use of the slipway and the estuary. Although there is no obligation to do so, authorities should assist the George Skiboat Club to find an alternative launching site. The permit allowing Mr Cohen access his property is acceptable.

2. Undertake, together with I&AP's, the development of the Kaaimans River Valley as a day-visitor nature conservancy with basic amenities enabling visitors to appreciate the historical, cultural and environmental heritage of the area.

3. Determine a suitable alternative management structure for the Valley which will provide an effective environmental management capability and unify control and jurisdiction of the area.

4. Draw up an environmental management plan to address the development of the Valley into a nature conservancy/ecotour destination. This should include the following elements:

• Restoration of the Outspan.
• Removal of alien invasive vegetation.
• Tree planting (to replace those lost and to provide strategic screening from the road).
• Restoration of historic ox-wagon trail.
• Removal of rubble from the stream bed and restoration of reclaimed land where feasible.
• Routine biological monitoring.
• Rigorous environmental impact assessment of future developments.
• Establishment of parking facilities, walkways, information boards, picnic sites and environmentally sensitive recreational activities (eg. rowing boats).
• Establishment of a trustees committee.

If the contents of the report remain in dispute, we recommend;

5. An environmental impact assessment to generate further information. In this event, the EIA should address the following issues:

• Responsibility for environmental damage at the Outspan during the road construction work and prior to this.
• Conditions of the public servitude.
• Management options appropriate to multiple use of the estuary.
• Responsibility of George Skiboat Club to seek an alternative launching site (ie terms of permit to use slipway).
• Economic potential of Kaaimans Valley as an ecotour destination relative to other uses.
• Status of property titles
• Impact of George dam, infill/reclamation and causeway on natural river/estuary flow patterns, maintenance of tidal mouth and erosion potential of river flows.
• Pollution potential resulting from septic tanks, residues from outboard engines, road run-off and disposal of water treatment products.

7. ACKNOWLEDGEMENTS.

We gratefully acknowledge the time and invaluable assistance given by I&AP's during the scoping exercise and in the preparation of this report.

APPENDIX 1.

1. I&AP contributors to the initial scoping workshops:

Mr C. Gaigher
Mr A. Fourie
Mr J. Kemp
Adv. J. Griessel
Mr D. Wessels
Mr D. Cohen
Mrs M. Lilienfeld
Mr P. Sieben
Mrs M. Mansfeld
Mr M. Moll
Mr W.J. Smit
Mr F. Bekker

2. I&AP's who contributed in response to the draft scoping document:

Mr P. Sieben
Mrs M. Lilienfeld
Adv. J. Griessel
Mr A. Fourie
Mrs P.E. du Toit
Mrs L. Priess
Mr D.L. Cohen
Mr J. Kemp
T. du Toit
Mr F. Bekker