SOUTH-AFRICA-L Archives

From: "Delia Robertson" <>
Subject: Re: The new law
Date: Tue, 6 Apr 1999 08:23:44 +0300

Hello all:

Once again, I apologise up-front for a very long post. So those
who find this tedious should delete now.

I think Anne's list of cases of neglect etc., if not entirely
correct, is actually a forceful argument in favour of a better
law.

As to expropriation, the law is so careful about private
ownership that I cannot foresee expropriation other than in the
most extreme circumstances. Further there is no suggestion it
will be done without compensation - and the constitution
requires fair compensation in cases of expropriation.

As to export, if SAHRA (South African Heritage Resources Agency)
deems the item so important it must remain in the country, fair
compensation must be paid and fair will be decided by a panel
made up equally of dealers in heritage objects, museum officials
and collectors of heritage objects. If a fair offer is not made
the export permit must be issued.

Why don't we let the law speak for itself. Here are the
relevant sections:

QUOTE
Expropriation
46. (1) The Minister may, on the advice of SAHRA and after
consultation with the Minister of Finance, purchase or, subject
to compensation, expropriate any property for conservation or
any other purpose under this Act if that purpose is a public
purpose or is in the public interest.
(2) The Expropriation Act, 1975 (Act No. 63 of 1975), applies to
all expropriations under this Act, and any reference to the
Minister of Public Works in that Act must be read as a reference
to the Minister for the purposes of such expropriation.
(3) Notwithstanding the provisions of subsection (2), the amount
of compensation and the time and manner of payment must be
determined in accordance with section 25(3) of the Constitution,
and the owner of the property in question must be given a
hearing before any property is expropriated.

And this section applies to export:

(21) On receipt of an application to export a heritage object
SAHRA may refer it to one or more expert examiners, who must
submit to SAHRA a written report on the application.
(22) SAHRA must consider the report and
(a) issue a permit to export the object concerned, subject to
such conditions, if any, as SAHRA considers necessary;
or (b) refuse to issue a permit.
(23) In considering an application to export any object of a
type listed in Part I of the register of heritage objects
permanently, an expert examiner and SAHRA must consider whether
the object
(a) is of outstanding significance by reason of its close
association with South African history or culture, its aesthetic
qualities, or its value in the study of the arts or sciences;
and
(b) is of such a degree of national importance that its loss to
South Africa would significantly diminish the national heritage,
and if satisfied that the object fulfils both these criteria,
may not recommend the issue of a permit, or issue a permit, as
the case may be, to export the object permanently.
(24) In the event of SAHRA refusing to issue an export permit
the applicant may, within 30 days after such refusal, by written
notice require the compulsory purchase of the heritage object to
which such refusal relates.
(25) On receipt of a notification under subsection (24) SAHRA
must
(a) if it is of the opinion that a fair offer to purchase the
object concerned might be made by a person or public authority
in South Africa within the following six months, establish a
delay period of not less than two months and not more than six
months during which an export permit may not be issued in
respect of such object; or
(b) on its own behalf or on behalf of a public institution or
authority in South Africa or a person who will undertake to keep
the object in the country, offer to purchase the object either
by an immediate cash payment or by payment of compensation in
such manner as the Minister in consultation with the Minister of
Finance may determine; or
(c) in any other case, issue a permit to export the object
concerned.
(26) Where SAHRA establishes a delay period under subsection
(25)(a) in respect of a heritage object, it
(a) must give written notice of the delay period to the
applicant, and the Minister;
(b) must advise such institutions and public authorities in
South Africa as it sees fit of the delay period and of the
object in respect of which such delay period was established;
(c) may by public advertisement or any other means it deems
appropriate make known the delay period and the object in
respect of which it was established; and
(d) may stipulate that the heritage object concerned is
deposited on temporary loan with a specified South African
museum or public authority for the duration of the delay period.
(27) SAHRA, in consultation with the Minister, may extend a
delay period established in terms of subsection (25)(a) for a
maximum period of two years.
(28) In the event that
(a) during a delay period established in terms paragraph
(25)(a), an offer to purchase the heritage object concerned is
made and the applicant and a public authority or person making
such offer cannot agree as to the amount of a fair cash offer;
or
(b) SAHRA and the applicant cannot agree as to the amount of a
fair offer or compensation under subsection (25)(b), such
dispute must be arbitrated by a panel appointed by the Minister,
consisting of equal representatives of dealers in heritage
objects, museums and collectors of heritage objects, which must
determine the amount of a fair cash offer to purchase such
heritage object and must notify the parties concerned and SAHRA
thereof.
(29) Where a delay period established in terms of subsection
(25)(a) expires without a fair offer being made to purchase the
heritage object concerned, SAHRA must forthwith on the request
of the applicant issue a permit to export such heritage object.
(30) Where a delay period established in terms of subsection
(25)(a) expires and SAHRA is satisfied that a fair offer to
purchase the heritage object concerned has been made, SAHRA may
not issue a permit to export such heritage object.
END QUOTE

Also, any of those who object to the law, such as art dealers or
De Beers, can take their objections to the constitutional court.
If the court deems the law violates the Constitution or Bill of
Rights (both viewed internationally as just about the best in
the world) - it will order parliament to bring the law within
the bounds of the constitution.

If you're concerned about this law, I recommend a thorough
reading of it.

Regards. Delia Robertson.
Email:
Home Page: http://www.geocities.com/~deliarobertson
-----Original Message-----
From: B & A Lehmkuhl

|Hi everyone
|Good to see some debate re: the newly passed law.
|I still remain skeptical about this law. I agree that there
must be
|protection for national heritage sites. However, I still
believe that the
|state, just like everyone else, should buy (at the
market-related price)
|whatever items/sites... it wants to own. To date, I have found
that
|collections in private hands, are better cared for than those
in state
|hands (especially since state funds have been cut). The
following
|under-mentioned makes me wonder about the state's intentions
re: care of
|national treasures (I don't have my notes on hand at the moment
to give
|precise locations and dates, but these are all documented
cases):
|* the vandalism caused to about 200 Anglo-Boer War graves late
last year -
|no culprits found to date, as far as I can remember.
|* various acts of vandalism to graves in Heroes Acre in
Pretoria.
|* the bulldozing of a declared national heritage house last
year in the
|Eastern Cape(?), to make way for a shopping mall(?) - despite
there being a
|law (now replaced by recently passed one) to prevent this. The
developer
|received a R5000-00 fine.
|* the recent threat of closure to the Albany Museum.
|* drastic cuts in funds for maintaining Archives. It is a
well-known fact
|that Archives staff are battling to deliver services and those
that do this
|under such circumstances are to be admired. The Archives
Offices in SA have
|a wish list of badly needed basic equipment.
|* the closure of the HSRC Genealogy dept due to lack of
funds(?).
|* there are national heritage sites that are in need of
desperate
|restoration/repair work etc... (such as the Police Museum in
Pretoria,
|temporarily closed as it is not safe to be in there), but lack
of funds
|hamper this.
|* private individuals in many case have to fundraise to get
funds to repair
|national heritage sites.
|* last year the Wynberg Officers Club burnt down, taking with
it a large
|amount of national treasures that cannot be replaced. The Club
was a
|national heritage site but did not have adequate fire
prevention measures.
|Private individuals are helping to raise funds to rebuild the
site.
|These are just a few that I recall right now.
|I will watch with a keen interest, how the new law will be
enforced to
|protect national treasures.
|
|Anne Lehmkuhl

This thread:

• The new law by B & A Lehmkuhl <>

  • Re: The new law by "Delia Robertson" <>