Community rebellion halts ‘illegal’ Stellenbosch development

A high-profile property development outside Stellenbosch finds itself somewhat up the creek after the local municipality heeded an outcry by prominent residents and community members by refusing a certificate of occupation.

The Root44 development is a well-known landmark on the corner of the R44 and Annandale roads between Stellenbosch and Somerset West, just to the north of the giant strawberry of the Mooiberge Farmstall. The particular piece of land officially hosted the popular Root44 farmers’ market until 2017.

The development is known as Audacia. The audacious drama playing out there involves the Stellenbosch municipality and its feisty mayor Gesie van Deventer, a winemaker and accomplished advocate, and several other well-known organisations and residents. They include Visit Stellenbosch and Stellenbosch Wine Routes and several local wine farmers, including Rust en Vrede proprietor Jean Engelbrecht.

Legal lapses

Engelbrecht has been at the forefront of the pressure put on Stellenbosch municipality, pointing out various apparent legal lapses in the way of the new development, such as the lack of an up-to-date traffic impact study, the most recent one having lapsed in 2013.

Stellenbosch Wine Routes chair Michael Ratcliffe added his voice, castigating the municipality in a letter dated May 21 for having “failed in its constitutional mandate and more specifically its obligation to ensure right, just and fair administrative action to the benefit of all persons and the affected public” while Paul McNaughton of Gracelands Vineyards told the municipality in an angry e-mail dated April 16 to “enforce your own regulations and stop turning a blind eye”.

The developer of Root44 is Daxcon, owned by Somerset West-based businessman Dax Hunt. He has been in the development industry for many years after founding Daxcon in 1999. According to Daxcon’s website, the business has built more than 250 houses in the Cape Peninsula.

Should you pass the development today, you will see a large building seemingly ready to open for business but unoccupied.

It is empty due to a significant pushback by the community. It is one of several similar battles raging in the Boland, including efforts by the Stellenbosch Ratepayers’ Association to stop a proposed property development on the Polkadraai road between Stellenbosch and Kuils River.

According to the title deed for the Audacia property, a company named Joalid, of which Paul Kevin Harris and Trevor Gordon Strydom were the directors, owned the property before any development taking place. In 2015, Joalid sold the property to Audacia Wines for R16.5 million. Harris and Strydom were also the sole directors of Audacia Wines.

A year later, Audacia Wines sold the property to the Daxcon Development Trust for R40 million. Two mortgage bonds of R50 million and R80 million were registered over the property, in 2019 and 2020 respectively.

Development started more than a decade ago

Efforts to develop Audacia started around 2008 when a group of investors applied for municipal approval to construct a wine emporium and tourist centre at the site.

The 2008/2009 project approval process was an extensive one. From hundreds of pages of documentation Moneyweb obtained from the municipality after a Promotion of Access to Information Act (PAIA) application, it is clear that several studies were required. This included environmental, traffic, noise and heritage impact studies, to list but a few.

The municipality approved the development, subject to several conditions, on June 23, 2009. Despite the approval, nothing happed until 2012 when the Root44 farmers’ market was launched after the municipality granted a five-year concession.

The market quickly became extremely popular, with thousands of people flocking to the venue over weekends – bringing economic opportunity to many but also causing traffic havoc, according to aggrieved local farmers.

Nine of these farmers’ estates are on the Annandale road, including Alto, Guardian Peak and Hidden Valley. The farms claimed the traffic jams hurt their own businesses (including restaurant and wine sales). The market was closed in 2017 after the five-year approval period lapsed.

Between 2017 and 2020, a smaller version of the market operated informally over weekends, but the Covid lockdowns put paid to that.

New development

Fast forward to early June last year. To the surprise of many neighbouring farmers, the bulldozers rolled in, and construction work started. It was not clear what Hunt wanted to construct on the property, and that uncertainty remains at the core of the dispute between the developer, the locals, and the municipality (Hunt declined to respond to Moneyweb’s specific questions related to the nature of the development).

When the construction work resumed, community members immediately alerted the municipality of the activity, and on June 18 last year, senior municipal building inspector Jadewin Opperman arrived to inspect the goings-on.

But, astoundingly, the guard at the gate denied him access to the property.

In an affidavit filed with the Western Cape High Court, Opperman states that he could nevertheless see that unauthorised construction work was taking place. He returned a few days later and was again refused access. On June 30, he served notice to cease all activities.

During follow-up inspections by Opperman on August 19, October 23 and November 5, it was clear to him that the illegal construction continued unabated as the municipality had not approved any building plans.

In November, the municipality applied for an interdict at the Cape Town High Court to halt further construction work and to demolish the illegally constructed buildings.

In her affidavit, Stellenbosch municipal manager Geraldine Mettler said Daxcon did not have the necessary approval to construct buildings on the property. She also emphasised that the traffic impact study, which was done in 2008, had lapsed as it is only valid for five years, and that this alone made the development unlawful. To this day, no up to date traffic impact study has been done.

“Despite not having approved building plans, the Trust (Daxcon) continues the illegal building on the property unabated, and with great haste,” Mettler stated to the court.

On December 4, Western Cape High Court Judge Pat Gamble granted an interdict to stop all construction work and postponed the matter to May this year.

Construction resumed in 2021

But early in 2021, and to the dismay of local farmers and community organisations, construction work restarted – and with a vengeance. “Great was our surprise when the construction which we had thought was something of the past suddenly resumed,” Engelbrecht told Moneyweb.

It transpired that amid the court order and with the hearing pending in May, the municipality had approved new building plans in February, subject to conditions.

Stuart Grobbelaar, spokesperson for the municipality, said in response to Moneyweb’s enquiries that the approval was granted on the condition that the other conditions set down since 2009, such as the land use approval, be adhered to.

But according to the municipality, Daxcon did not adhere to these conditions, as it became apparent that the building will house several stalls, in contradiction of the conditions.

Hidden layer

Daxcon has since completed the construction work and marketed the property to presumptive occupiers of the stalls. They were perpetually assured that granting an occupation certificate was imminent, and that trading would commence shortly after that.

“It has simply been the most unprofessional behaviour I have ever been exposed to,” one prospective stall trader told Moneyweb on condition of anonymity for fear of being victimised.

“One would have thought if they had the money to construct and build such an impressive building, they would know what they were doing. That proved to be a vain hope indeed.”

But last week Grobbelaar confirmed that the occupation certificate had not been granted.

“There were two main reasons for the decision,” he explained. “Firstly, there were technical aspects which were not addressed satisfactorily, including deviations from the original building plan. Secondly, it is clear the building structure will not be used in terms of the land use rights and the associated building plan as agreed upon, including the space to be used for trading.

“On face value, it is evident that the developer wants to establish the typical uses of the former ‘farmers market’ operations on the property whereas the newly constructed building was approved as a tourist facility and a wine emporium. It was clearly communicated to the developer, on several occasions, that the former typical land uses relating to the farmers’ market will not be permitted, and cannot be accommodated in the subject building.

“The authorised decision-makers have duly decided on the above matters on very clear and distinct grounds, and it is not the prerogative of the relevant municipal department to interpret these approvals any different than these clear decisions. However, the responsibility of the municipality is to exercise a duty of care and ensure that the above decisions are accurately implemented and exercised,” Grobbelaar said.

Questions

On Saturday May 29, Moneyweb sent questions to Daxcon, to which Moneyweb did not initially receive a response.

But two days later, on the Monday morning, the presumptive stall traders received the following group WhatsApp message from the developer: “Just an update on the occupation certificate. We have a meeting with our attorney this morning again. In the meantime, we do ask that everyone gives us the opportunity to sort this out by the book. Please do not engage with journalists or vent on social media as you do not have all the facts. This will hurt us in the long run. We will keep you updated on the situation.”

Later that day, Daxcon director Dax Hunt sent the following curt reply to Moneyweb’s detailed questions: “Thank you for showing interest in the development. After reviewing your e-mail and receiving guidance from our attorney, we reserve the right to withhold comment as it may cause disruptions with our current consultations with the council.”

However, late on Tuesday afternoon, Hunt sent an additional reply: “The approved development holds a positive advantage for the broader community (job creation) and will also contribute positively to promoting tourism, which currently is one of the biggest growth industries in South Africa.

“The municipal refusal of an occupancy certificate is mainly based on the current municipal interpretation of previously undefined terms and conditions of approval. It is more frustrating to us than it can ever be to those that have signed up to rent space in the building. We believe that it is in the best interest of everyone concerned that the current impasse is overcome without further delay.

“In our view, the refusal to issue an occupancy certificate, insofar as the refusal is based on ‘non-compliance with conditions of approval’, is unlawful. Be that as it may – the building concerned has for all practical purposes been completed to such an extent that it is fit to be occupied safely. The proposed use of the available floor space in the building is fully in accordance with the building plan that was approved by the municipality on 21 February 2021.

“We are in the process of attempting to resolve the differences of opinion currently existing regarding compliance with conditions of approval and are using our best endeavours to resolve same at the earliest opportunity without the need to resort to litigation. In the circumstances, we prefer not to respond to the specific questions you have raised because it will probably only complicate matters further.

“A fair ‘hearing’ in the press is unlikely to eventuate,” said Hunt.

“During the unauthorised building works, when the municipality was physically refused entry to the site and thus had no knowledge of what was being developed (this point was also highlighted in the court papers), we indicated that a traffic impact assessment would be required if the building is intended and developed for an unauthorised land use.”

Hunt’s reply indicates that the potentially expensive saga is far from over.

It is one of a few such battles raging in the area. These are battles that will shape the future face of the Boland, one of South Africa’s most popular and picturesque regions, and it is a battle worth following as it unfolds.