City publishes draft Harbour By-law for public comment

The City of Cape Town has today made its draft Harbour By-law available for public comment. This by-law proposes to reverse the long-running, systemic mismanagement of the city’s harbours under the National Departments of Agriculture, Forestry and Fisheries (DAFF) and Public Works (DPW).

The draft Harbour By-law was drawn up in terms of the constitutional mandate of municipalities to administer harbours within their jurisdiction. This would enable the City to regulate how the National DPW, as owner of the harbours, manages them.

The City has engaged with representatives of both the DAFF and the DPW for several years with a view to establishing a cooperative basis for the proper administration of the harbours within the City’s jurisdiction. These include the Hout Bay, Kalk Bay, Murrays’ Bay, Granger Bay and Gordon’s Bay harbours.

All these efforts have come to nought. Despite trying to negotiate a memorandum of understanding with the two departments, the DAFF refused to participate and the DPW withdrew after initial engagements, despite having arrived at a draft memorandum of understanding and an implementation protocol under Operation Phakisa.

This has left the City no choice but to forge ahead with the proposed by-law. Our harbours cannot continue to be neglected and mismanaged, falling ever further into disrepair. Their dilapidated and dysfunctional state has a serious impact on those who use them, in particular, workers and communities who depend on the harbours for their livelihood. Lack of professional management and maintenance has resulted in the serious degradation of these public assets, an increase in crime and a failure to develop their economic potential.

The DPW has failed to maintain these assets as required in terms of the Government Immoveable Asset Management Act. Hout Bay and Kalk Bay harbours are currently managed by the DAFF under the purported authority that they have been declared fishing harbours under the Marine Living Resources Act of 1998, and accordingly authorised by the control over and the Management of Fishing Harbours Regulations.

The City has taken senior counsel’s opinion on the constitutionality of this assertion, and that opinion concludes that the assertion of authority, and the regulations that purportedly authorise this, did not survive the repeal of the Sea Fisheries Act. Alternatively, even if they did, this would be unconstitutional as it encroaches on the constitutional mandate of municipalities to manage harbours (other than national ports) within their jurisdiction.

In view of the failure to establish a cooperative arrangement with the two departments, the City intends to take over their administration by means of a Harbour By-law. This will authorise the City to administer these harbours, to regulate harbour and other municipal matters in the harbour precincts, and to set standards for the repair and maintenance of the harbours to be implemented by the DPW.

The City notified the DAFF and the DPW of this intent and forwarded them a copy of the draft by-law for their consideration on 29 May 2017. The Minister of Agriculture, Forestry and Fisheries was also invited to withdraw or amend the contested regulations to avoid an intergovernmental dispute. To date, the City has received no response from either department.

Nevertheless, the City will not be deterred in its efforts to finalise and publish the by-law. The sooner the Harbour By-law can be enacted, the sooner it can begin to reverse the rot in our harbours.

Interested parties can view the Draft Harbour By-law here and submit their comments before 8 July 2017.

VIEW DRAFT HARBOUR BY-LAW

 

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