An aspiring farmer is accusing the Gauteng agricultural department of supporting his neighbour in a litigation which he claims is aimed at coercing him to sell his property to the same neighbour.
Abion Nkosi has alleged that he realised only later, about seven years ago, after occupying the farm that is a portion of Farm Nooitgedacht in the Muldersdrift area of Mogale City Municipality, that a development project known as Crane Valley Country Lifestyle Estate had been approved before he bought the farm.
There was, however, no documentation the developers could show to prove that the previous owner had consented to the development.
An environmental impact report on the planned development consists of a list of 18 farming portions, including Nkosi’s.
It is explained in the same document that “Crane Valley Estate will mainly consist of residential 1 type of housing and will include activities such as agriculture, horse trails, a nature reserve and staff accommodation”.
Nkosi said he only learnt about all this months after taking occupation of portion 142 of Farm Nooitgedacht in 2011.
“After occupying the farm, my family started using the available space to store some of the materials for the telecommunication business as well as trucks.
"A foundation was also dug for building new staff quarters and two security guardhouses were built, but we only learnt later that these could not be done without the approval of the authorities and for this our neighbour took us to court for contravention of [the National Environmental Management Act], something we never knew about,” he said.
“My family was ordered by the court to demolish two newly built guard houses, remove any other materials and trucks not related to farming and stop any other construction. It took some time before we fully obliged, although we did in the end, but now my neighbour has taken us to court again for contravening a court order in relation to the delay.”
City Press has seen a November 22 2012 letter, signed by then agricultural MEC Nandi Mayathula-Khoza, explaining that the family was indeed contravening the act and that the department inspectors had established that all this was happening on half of the eight-hectare property.
"The MEC further warned the family that failure to comply could see them “liable to a fine not exceeding R5 million or imprisonment for a period not exceeding 10 years, or both…”
Nkosi said he was surprised because there was a different picture on the ground.
“I learnt later that one has to seek approval if the affected area is over 1 hectare. The land on which there was activity in my property was less than one hectare, but still the department lied and said it was four hectares, which was not the case, hence I am saying for reasons known to them they just decided to support my neighbour’s case and shattered my dream of becoming a farmer and got me entangled in a legal battle all these years instead,” Nkosi said.
When asked about the 4 hectares the MEC cited against what was actually on the ground, department spokesperson Andile Gumede said:
“Initial investigations led to the compliance notice being issued on the basis that an illegal activity had been commenced with. Further investigation and more information being provided showed that there was indeed no illegal activity commenced with.”
The department went on to open a criminal case against the family even after they had complied with the court order, amid some delay, and removed all unwanted material, demolished guard houses, removed rubble and halted intended construction.
“The criminal case was opened on the basis that an illegal activity had been commenced with, until further information revealed otherwise,” Gumede said.
On why the department approved an estate development plan which included Nkosi’s property without verifying if he had given consent, Gumede said:
“The proponent/applicant/developer [Bruce Finnemore] did not disclose that he did not own portion 142 as required procedurally in the environmental impact assessment application process. This is material misinformation.
“Only once the Mkhonza Family Trust [of which Nkosi is a part] complained to the department of the action by the developer did the department become aware that the developer did not own the land in 2008; that portion 142 belonged to a different owner, who sold it to the new owners [the trust] in 2011.
“The department notified the developer of corrective action it intended to undertake in that regard. It must, however, be noted that according to records the department has in its possession, the Mkhonza Family Trust only bought the land in 2011, therefore the original and amendment applications of 2008 and 2010 preceded them, and as such they could not consent. Still, the developer should have indicated that he didn’t own portion 142 even then.”
Speaking on Finnemore’s behalf, lawyer Kallie Erasmus said the land in questions was “included in the Crane Valley development with the lawful consent of the previous owners of that property”.
He said, however, Nkosi’s family has “been repeatedly assured in writing that their property, portion 142, will not be included in any future iteration of the development”.
Meanwhile, City Press has seen a letter written by Erasmus to the Nkosi family, in which he wrote: “Our instructions are, consequently, to propose, wholly without prejudice, that the matter be settled on the following basis: Your clients grant Western Crown or its nominee a 120-day option to purchase the property for R4.5 million.
“Should no positive response to this settlement proposal be received by next Wednesday, we would require you to file your heads of argument by close of business on Friday, September 20 2013.”
This, Nkosi said, was “reason enough for me to believe they are using the court to force me to sell my property to them”.
“It was a matter of: ‘You sell to us or we continue dragging you to court and let you suffer even further,’” he said.
Erasmus denied the allegation.
“The allegation that our client is abusing court process to achieve a commercial aim is simply untrue. In the early stages of the litigation between the parties, the Mkonzas’ previous attorney of record suggested such a sale as a possible means to find settlement, not our client.”
Nkosi said all he has ever wanted was to “retire and pursue my love for farming, but instead here I am, years later, and I have spent more than R1 million defending myself in court”.
“My dream has been delayed and completely shattered. I feel unwanted and that the government has, instead of helping me as an aspiring farmer, decided to take the side of those trying to push me off the edge … I am not sure if I will ever be able to proceed with farming after all the suffering that is still continuing,” he said.