Australian Indigenous Law Reporter
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On 30 May 1998, an historic agreement was signed between South African National Parks (the SANP), the Makuleke community, nine other government departments and a few non-governmental organisations to provide for the return of ownership of land forming part of the Kruger National Park, to the Makuleke Community Property Association (the CPA).
Negotiations lasted for 18 months and culminated in an agreement which is widely held in South Africa to be a benchmark for land claim settlements affecting national parks and other conservation areas. Other land claims involving settlements in nature conservation areas are in the process of being finalized, including the Kalahari-Gemsbok National Park; St Lucia Provincial Park; Augrabies Waterfalls National Park and the southern part of the Kruger National Park.
On 20 December 1995, the Makuleke community lodged a land claim for the northern part of the Kruger National Park, the so-called Pafuri area, which covers approximately 25,000 hectares is probably the most biodiverse section of the park. The Makuleke community lived there until August 1969, when they were forcibly removed by the then Department of Bantu Affairs. At the time, the community was offered land in exchange for the land lost, but they only received about 6000 hectares, and the rest was put at the disposal of other tribes.
In pursuance of the Restitution of Land Rights Act (1994)[1] the community based their claim on the arguments that:
The agreement, which provides for the return of land ownership to the community and the joint management of the area as part of the Kruger National Park, is the first agreement whereby the rights of a community to land situated within a national park are restored. What makes it further unique is the willingness of the community to let the land remain as part of the national park in which the joint management regime is to operate. It is expected that a number of other land claims in national parks and provincial reserves may be settled in a similar way. The key elements of the agreement are as follows:
Due to the fact that South Africa has not had any other experience of effective joint management of national parks, it remains to be seen whether the potential conflicts between conservation and commercial development are reconcilable. There are many competing interests such as mining, conservation, high intensity tourism development and utilisation of national resources such as medicinal plants and game hunting. In more than one respect, the Makuleke region represents a microcosm of the issues that African conservation will have to deal with in the twenty-first century. Selected extracts of the agreement are reproduced here.
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24.1 Subject to the provisions of cl 24.3, the Makuleke Region shall endure for a period of 50 years from the date of declaration thereof in terms of cl 23.1.1; provided that after a period of 20 years either party may request the Minister to exclude the Makuleke Region from the Kruger National Park in terms of cl 23.1.2, on five years written notice to the other party and to the Minister.
24.2 The CPA and the SANP shall have the right within two years prior to the expiry of the Makuleke Region as part of a national park in terms of cl 24.1 by agreement, to jointly request the Minister to extend the duration of the Makuleke Region for a further period of 50 years, or such shorter period as agreed to between the parties.
24.3 For so long as the Makuleke Region remains in existence, it shall be subject to the provisions of the National Parks Act and the terms and conditions of this agreement. In the event that any one or more of the provisions of this Chapter is held to be invalid, unenforceable or illegal in terms of the National Parks Act, then this Chapter shall be construed as if such invalid, illegal or unenforceable provision is not a part of Chapter 2 and Chapter 2 shall be carried out as nearly as possible in accordance with the original terms and intent; provided that to the extent that the CPA is so fundamentally deprived of its intended rights as envisaged in this Chapter that the CPA cannot reasonably be expected to continue with the provisions of this Chapter, the CPA shall be entitled to require the Minister to exclude the land from the Kruger National Park in terms of cl 23.1.2.
24.4 For the avoidance of doubt, the parties hereby record that ownership of the land shall at all times vest in the CPA, irrespective of the termination of Chapter 2 or the termination of this agreement.
25.1 The SANP and the CPA shall establish the JMB, which shall manage the Makuleke Region as set out in this Chapter.
25.2 The JMB shall at all times consist of six members, appointed as follows:
25.2.1 at the signature date each of the CPA and the SANP will be entitled to appoint three members to the JMB, to remove any such member and to replace any such member who has been removed or ceases for any other reason to be a member;
25.2.2 the parties record that the number of members appointed by each of the CPA and the SANP will in the future change, it being intended that the proportion of SANP members to CPA members may decrease over time as determined by the JMB.
25.3 Any person appointed a member shall:-
25.3.1 hold office until:-
(a) he shall have been removed therefrom by the party appointing him; or
(b) he shall have resigned therefrom by notice in writing to the JMB; or
(c) he shall have served for a period of three years from his appointment;
25.3.2 not be entitled to appoint an alternate member to himself. Only the party appointing a member shall be entitled to appoint an alternate member.
25.4 The first members of the JMB shall be:
25.4.1 As appointed by the CPA, after its formation and registration, in terms of s 8 of the Communal Property Association Act 1996, as amended, and in terms of the CPA's constitution; and
25.4.2 as appointed by the SANP:
(a) Mr Madoda David Mabunda;
(b) Mr Willem Petrus D Gertenbach; and
(c) Ms Elizabeth Mhlongo.
25.5 The SANP and the CPA shall establish the JMB, which shall manage the Makuleke Region as set out in this Chapter.
25.6 The JMB shall at all times consist of six members, appointed as follows:
25.6.1 at the signature date each of the CPA and the SANP will be entitled to appoint three members to the JMB, to remove any such member and to replace any such member who has been removed or ceases for any other reason to be a member;
25.6.2 the parties record that the number of members appointed by each of the CPA and the SANP will in the future change, it being intended that the proportion of SANP members to CPA members may decrease over time as determined by the JMB.
25.7 Any person appointed a member shall:-
25.7.1 hold office until:-
(a) he shall have been removed therefrom by the party appointing him; or
(b) he shall have resigned therefrom by notice in writing to the JMB; or
(c) he shall have served for a period of three years from his appointment;
25.7.2 not be entitled to appoint an alternate member to himself. Only the party appointing member shall be entitled to appoint an alternate member.
25.8 The first members of the JMB shall be:
25.8.1 As appointed by the CPA, after its formation and registration, in terms of s 8 of the Communal Property Association Act 1996, as amended, and in terms of the CPA's constitution; and
25.8.2 as appointed by the SANP:
(a) Mr Madoda David Mabunda;
(b) Mr Willem Petrus D Gertenbach; and
(c) Ms Elizabeth Mhlongo.
25.9 The appointment to or removal from the office of member of any person or persons shall be made by notice in writing to the JMB and to the other party and shall take effect immediately upon receipt of such notice.
25.10 A chairman of the JMB shall be appointed from the members of the JMB and that the office of chairman shall be rotated between a member appointed by the CPA and SANP respectively on an annual basis. The first chairman of the JMB shall be nominated by the CPA. Should the chairman not be present at any meeting of the JMB, the members of the JMB shall elect one of their number to act as the chairman for that meeting.
25.11 The chairman of the JMB, or of any meeting of the JMB, shall not be entitled to a second or casting vote in addition to his deliberative vote as a member of the SANP or the CPA.
25.12 JMB resolutions in order to be of force and effect must be approved by both the SANP and the CPA.
25.13 For either of the SANP or the CPA to approve a resolution for the purposes of cl 25.8, the majority of its members present must approve the resolution. Accordingly, the vote of each of the CPA and the SANP will be decided by the majority of its respective members attending the meeting. The CPA and the SANP can determine the majority decision of its members in camera. If either of the CPA or the SANP does not obtain a majority vote of its members present at the meeting or as provided for in terms of this cl 25, then that party shall have voted against the resolution for the purposes of cl 25.8.
25.14 A quorum at all meetings of the JMB shall consist of four members (or their alternates) of whom two shall be appointees of the CPA and two of the SANP. If, within 30 minutes after the time appointed for any meeting a quorum is not present, the meeting shall be dissolved and it shall stand adjourned to a date to be determined by the CPA and the SANP jointly (which date shall not be earlier than five business days and not later than 15 business days after the date of such meeting) at the same time and place (or if such place be not available at such other place as the members may appoint). At such adjourned meeting a quorum of the JMB shall consist of two members (or their alternatives) of whom one shall be an appointee of the CPA and one of the SANP. If at such adjourned meeting a quorum is not present, the meeting shall again be adjourned in terms of this cl 25.10 until such time as a quorum for an adjourned meeting is present.
25.15 A resolution signed in writing by all the members present in South Africa who are not less than a quorum for a meeting of the JMB shall be as valid as if it had been passed at a meeting of the JMB, duly held and constituted. Any such resolution may consist of several documents in like form, each signed by one or more of the signatories to the resolution. A resolution passed in terms of this cl 25.11 shall be entered in the JMB's minute book and be noted at the next succeeding meeting of the JMB. Any resolution referred to in this cl 25.11 shall be deemed to have been passed on the date it was signed by the member last signing it.
25.16 The members shall, unless otherwise agreed, meet at the JMB's premises:
25.16.1 subject to the provisions of cl 25.12.2 not less than six times a year; and
25.16.2 whenever so required by either party, on ten business days notice in writing (exclusive of the day of receipt) to the other party.
25.17 Notwithstanding the provisions of this cl 25, the parties agree that the CPA's alternate members may attend all meetings of the JMB; provided that such alternate members shall not have a vote in respect of decisions of the CPA unless such persons are acting in their capacity as alternates to members of the CPA.
25.18 The JMB may authorise invited guests of the CPA and/or the SANP to attend meetings of the JMB; provided that such invited guests shall not be entitled to vote at any meeting of the JMB.
25.19 The secretary of the JMB shall forward a copy of the agenda and all supporting documents (including the minutes of the previous meeting) to each of the members at least five business days prior to a meeting of the JMB.
25.20 Meetings of the JMB and of all committees of the JMB may be held by means of such telephone, electronic or other communication facility as permits all persons participating in the meeting to communicate with each other simultaneously and instantaneously, provided that the meeting shall be properly minuted by the secretary of the JMB and forwarded to all members for formal adoption.
25.21 The secretary of the JMB shall cause a copy of the minutes of any proceedings of the JMB including those referred to in cl 25.16, to be disseminated to all members within five business days of the meeting.
25.22 Each party shall bear its own costs in respect of the participation of their members on the JMB.
26.1 The JMB will observe and give effect to:
26.1.1 this agreement and in particular Chapter 2 hereof;
26.1.2 all relevant provisions and regulations of the National Parks Act insofar as it is enabled to do so;
26.1.3 the Master Plan; and
26.1.4 all resolutions and decisions passed by the JMB.
26.2 Subject to cls 28 and 31, the JMB will be responsible for the day-to-day management and operations of the Makuleke Region.
27.1 The JMB shall do all things which are necessary to ensure that the terms of this agreement (and in particular Chapter 2), the Master Plan and the Deed of Grant are complied with.
27.2 The JMB may from time to time amend the provisions of the Master Plan to conform with the ongoing objectives of the CPA and the SANP in relation to the Makuleke Region.
27.3. Pursuant to the provisions of subs 12(2)(b) the National Parks Act, the SANP hereby irrevocably authorises the JMB in respect of all conservation management related activities undertaken within the Makuleke Region, and it is hereby recorded and agreed that subject to cl 27.5 the CPA retains full authority in respect of all commercial activities undertaken within the Makuleke Region to:
27.3.1 construct and erect such roads, bridges, buildings, fences, landing stages, swimming pools, and carry out such other works as may be necessary in respect of such activities;
27.3.2 take such steps as will ensure the security of visitors, the animal and plant life in the Makuleke Region, and the preservation of the Makuleke Region and the animals and vegetation therein in a natural state;
27.3.3 reserve areas as breeding places for animals or as nurseries for trees, shrubs, plants and flowers;
27.3.4 provide accommodation for visitors to the Makuleke Region and facilities in connection therewith;
27.3.5 provide meals and refreshments for visitors to the Makuleke Region;
27.3.6 carry on any business or trade for the convenience of visitors to the Makuleke Region;
27.3.7 supply any other service for the convenience of visitors to the Makuleke Region;
27.3.8 establish, erect, equip and maintain any building, structure, depot or premises required in connection with any matter referred to in cls 27.3.4, 27.3.5, 27.3.6 or 27.3.7, or let any site required for such a purpose;
27.3.9 make such charges as it may determine in connection with any matter referred to in cls 27.3.4, 27.3.5, 27.3.6 or 27.3.7, or which are to be paid in respect of permission under s 23 of the National Parks Act to enter or reside in a park;
27.3.10 authorise any person to carry on, subject to such conditions and the payment of such charges as it may think fit, any activity, other than the sale of liquor, which may in terms of cls 27.3.5, 27.3.6 or 27.3.7 be carried on by the JMB;
27.4 For the purposes of ss 2B(1)(b), 12(2)(b) and 21 of the National Parks Act, the parties, to the extent that they have the power to do so, hereby irrevocably authorise the JMB to determine in respect of conservation management matters, and subject to cl 27.5 hereby irrevocably authorises the CPA in respect of commercial activities to determine, which persons may:
27.4.1 enter or reside in the Makuleke Region without the permission of the JMB or any officer of employee authorised to grant such permission;
27.4.2 convey into the Makuleke Region or within the Makuleke Region be in possession of any weapon, explosive, trap or poison;
27.4.3 within the Makuleke Region hunt or otherwise wilfully kill or injure any animal;
27.4.4 within the Makuleke Region disturb any animal;
27.4.5 within the Makuleke Region take, damage or destroy any egg or nest of any bird, or take honey from a beehive;
27.4.6 wilfully cause a veld fire, or any damage to any object of geological, archaeological, historical, ethnological, educational or other scientific interest, within the Makuleke Region;
27.4.7 introduce any animal or permit any domestic animal to stray into or enter the Makuleke Region;
27.4.8 remove from the Makuleke Region any animal (other than an animal lawfully introduced into that park), whether alive or dead, or any part of an animal;
27.4.9 cut, damage, remove or destroy any tree or any part thereof, dry or firewood, grass or other plant in the Makuleke Region;
27.4.10 within the Makuleke Region remove seed from any tree or other plant without the permission of the JMB or any officer or employee authorised to grant such permission;
27.4.11 feed any animal in the Makuleke Region; or
27.4.12 drive a motor vehicle in the Makuleke Region without a valid driver's licence, or permit any other person to drive a motor vehicle in the Makuleke Region without a valid driver's licence.
27.5 Notwithstanding the provisions of cl 25.8 any proposal, directly related to the generation of income by means of commercial activities which the CPA may be considering in terms of cls 27.3 and/or 27.4, shall be submitted to the SANP for joint discussion, prior to the CPA deciding thereon. Thereafter, the CPA shall be entitled to make its decision in respect of such proposal, subject to the terms of this agreement and in particular cl 31.2. The decision of the CPA shall then be tabled at the next meeting of the JMB and once so tabled, shall be deemed to be a decision of all the members of the JMB.
27.6 The parties record that the Makuleke Region is subject to all regulations passed in terms of s 29 of the National Parks Act, applicable to the Kruger National Park, and agree that until and except insofar as the JMB proposes any amendment or addition to such regulations by passing resolutions in terms of cl 27.4 and such resolution is given effect to in terms of cl 27.7, that such regulations shall continue to apply in respect of the Makuleke Region.
27.7 Notwithstanding the provisions of cl 27.6, the parties and the Minister undertake to do all things necessary to give effect to any resolution of the JMB in terms of cl 27.4, including the passing of any regulation in terms of s 29 of the National Parks Act to bring such resolution into effect. To the extent that the SANP or the Minister fail to approve any resolution of the JMB in respect of cl 27.4, the SANP and the Minister shall be deemed to be in breach of this agreement: Provided that such a breach shall only be deemed to have occurred if the failure to approve such a resolution of the JMB has the effect of fundamentally depriving the CPA of its intended rights as envisaged in this Chapter. In the event of a breach of this agreement as envisaged in this cl 27.7 the CPA shall be entitled to require the SANP and/or the Minister to remedy the breach upon 21 business days written notice to do so. If the SANP and/or the Minister fails to comply with such notice, the CPA shall be entitled to call upon the Minister to exclude the Makuleke Region, in terms of cl 23.1.2, on two years notice to the SANP and the Minister.
28.1 Without in any way detracting from the powers of the JMB, and the provisions of subs 12(1) of the National Parks Act, the SANP shall do all such things which are necessary for or incidental to or connected with the day-to-day conservation management of the business and affairs of the Makuleke Region. In particular and without limiting the generality of the aforegoing the SANP shall, subject always to any specific or general instructions from the JMB and within those limits imposed in terms of subs 12(2)(b) and s 21 of the National Parks Act.
28.1.1 implement the policies and procedures laid down from time to time by the JMB;
28.1.2 ensure that the provisions of the Deed of Grant and Master Plan are complied with insofar as they relate to the Makuleke Region;
28.1.3 carry out and perform all such duties and exercise all such functions as may be permitted by law and as may be necessary or desirable for the proper conduct of the day-to-day business and affairs of the Makuleke Region; and
28.1.4 generally provide or procure the provision to the Makuleke Region of such advice and services as may be reasonably necessary for the proper conduct and management of the day-to-day business and affairs of the Makuleke Region.
28.2 Subject to the provisions of subs 12(1) of the National Parks Act the JMB may terminate the services of the SANP in terms of this cl 28 upon reasonable written notice to the SANP. Notwithstanding the aforementioned, such termination shall not limit the SANP's power to ensure that the management, control and maintenance of the Makuleke Region in terms of subs 12(2)(b) and s 21 comply with the National Parks Act.
29.1 The JMB will assess its staffing requirements from time to time, including the employment of a secretariat and subject to budgetary considerations shall enter into the requisite employment contracts.
29.2 The parties shall procure that the employment policy and conditions of service of the JMB shall be in accordance with the Master Plan.
30.1 The parties record that it is their intention that the CPA shall become involved in the day-to-day conservation management of the Makuleke Region, with the intention that the Makuleke Region shall in time be staffed predominantly or entirely by members of the community. Accordingly, the JMB shall take reasonable steps to facilitate the transfer of skills to members of the community.
30.2 The JMB shall on an annual basis review the progress made in the preceding year in the transfer of skills to the CPA, and identify options and strategies for the forthcoming year to facilitate the transferring of skills to the CPA.
30.3 The CPA shall use its best endeavours to undertake suitable programmes within the community for the training of members of the community to be employed by the JMB. The JMB shall assess on an annual basis its needs and submit such assessments to the CPA. All costs incurred in this regard shall be borne by the CPA.
31.1 The Makuleke region is at all times to be utilised solely for the purposes of conservation, and associated commercial activities, in terms of the Deed of Grant.
31.2 Subject to cls 31.3 and 31.4 the CPA shall have the right to conduct all commercial activities on the land, subject to the following:
31.2.1 ensuring as a member of the JMB that such development complies with the principles set out in the Master Plan;
31.2.2 developmental constraints and opportunities set out in the Master Plan are adhered to;
31.2.3 no activity contrary to the objectives of a contractual park in terms of the National Parks Act may be undertaken;
31.2.4 no formal human exclusion areas are created;
31.2.5 environmental constraints in respect of the land, in particular, but not limited to the following factors:
(a) seasonal heat;
(b) the semi-arid nature of the land and unreliable rainfall, which renders some plant communities fragile;
(c) shallow top-soil in areas;
(d) malaria endemic area, with some areas of specially high risk;
(e) the presence of anthrax and other animal diseases;
(f) distribution patterns of game;
(g) flood plains and seasonal flooding;
(h) the potential Ramsar status of certain areas;
(i) constraints on the land created by vegetation, including the many red data species on the land, which impact upon wildlife management and potential use of such plants for medicinal purposes; and
(j) topographical constraints;
31.2.6 in all regards the principles for wildlife management, as set out in the Master Plan are followed;
31.2.7 an environmental impact assessments as regulated by law is conducted with respect to any proposed development or change of use in the land and the approval of the competent authority as required by such law is obtained;
31.2.8 the parties take all steps necessary to harmonise development on both sides of the Levuvhu River, addressing the effect of any development and activities on one side of the river on the other side of the river; and
31.2.9 the tender process, as determined in terms of cl 32.
[Portion of cl before first colon amended ito cl 49.4 by para 19.1 of the written agreement between all the parties, signed in counterparts between 11 and 15 December 1998.]
31.3 Subject to cls 31.2 and 27.5 and the Master Plan, all permissible commercial activity in the Makuleke Region will be undertaken solely by the CPA or developers, partners or authorised persons as contemplated in cl 31.4, subject to the SANP having the following rights:
31.3.1 ensuring as a member of the JMB that such development complies with the principles set out in the Master Plan;
31.3.2 input into the environmental impact assessment process;
31.3.3 informal input;
31.3.4 ensuring all tender requirements are ostensibly fair and followed by the CPA;
31.3.5 ensuring that all and such commercial activity in the Makuleke Region complies with the terms of this agreement, the Master Plan and the Deed of Grant; and may recommend amendments to such developments insofar as they do not comply with all or any requirements.
31.4 For the purposes of cl 31.3, and subject to the tender procedure, the CPA is entitled to enter into agreements with developers of their choice, and engage with partners of their choice to undertake any commercial activity on the land, either through agreement or by means of a trust or a company of which the CPA is a beneficial owner; provided that the CPA may, subject to the tender procedure, authorise persons other than such developers or partners to conduct any commercial activity on the land.
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URL: http://www.austlii.edu.au/au/journals/AUIndigLawRpr/1999/50.html