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Community rebellion halts ‘illegal’ Stellenbosch development

On a piece of land that hosted the Root44 farmers’ market, which was popular with visitors but not local farmers, until 2017.
The battle, one of several that will shape the future face of the Boland, rages on. Image: Supplied

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.

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Image: Google Earth

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.

Image: Supplied

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.

COMMENTS   32

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One must say, some developers are really pushing things regarding developments. It seems as if some of them are money hungry and cares about nothing else but profit. Lot’s of profit.

This is not North Korea, this is a capitalist country where profit is the main motivation for every business person. Developers plough billions into a dead economy and creates tens of thousands of jobs.

And they make that money back. It is not as if they are donating to charity.

BillyNeighbour – they do donate to Charity: the Charity of the ANC and SARS.. all business activity and capitalist endeavors in this country must succeed in spite of the policies in place, not because of them

And lets face it they keep the world rolling. BTW do you call yourself Bojangles because of the song Mr. Bojangles.

@dogwise..no, after Bojangles Chicken

The Paar/Stellenbosch wineroute is being systematically destroyed as we used to know it.

Large tracts of greenery and farmland have been paved over with concrete and tarmac and developed for off-plan widget housing, so favoured by the semigrants.

The traffic jams are horrendous, especially through Stellenbosch, which is even worse than Cape Town itself, which is quite an achievement.

Cape Town is the new Jo’burg-by-the-Sea

Sure and that is why competent public servants are so important to counter balance ‘only profit’ operators..

The principles of town planning are there for a reason, but are not followed.

Also, everyone is allowed to do planning, which is part of the problem.

Right concept, wrong location.

Looks and sounds like a bull in a China shop.

Wonder what the “bull” says to his “lenders”??

nowadays stellenbosch is in the news but most of the time negative news about a wide range of activities – high time to get it’s act together again

Not too hot on Latin….
Think it’s ” fait acompli” ?

Not necessarily – the municipality can instruct the developer to pull down the entire structure if there is a variance between what was approved and what has been built

It’s a lovely market. Pity that it’s come to this. I think the upgrade would have made it even better. Sounds a bit like some of the other farms got a bit jealous. There has never been a traffic problem due to the four-way traffic lights, so it seems a bit that the neighbours had it in for the market.

I agree that this development has been stopped but the municipality is extremely frustrating to deal with to get permissions in a timely manner. With all the unemployment around especially the devastating effects on hospitality you would think they would fast track any hospitality related planning permissions.

Root 44 is a on wide busy road which can more than cater for the traffic it creates, it had a huge parking lot which could easily take 500 plus cars, the market had dozens of small traders and provided a platform for their fledgling businesses and yet the ratepayers only care about their blighted view. The ‘community’ referred to the article is not the wider Stellenbosch community but the owners of the farms that were in competition with the market and were taking a beating as people preferred the family orientated entertianment rather than their staid wine farm atmosphere. Their motives has nothing to do with what is good for the ‘community’ but rather what is good for their business!!

100% in agreement, but… rules are rules and everybody must adhere by them – otherwise if you do not agree with that, then you are not allowed to have a different opinion about let’s say our official corrupt cadres in government. The developer/owner should’ve done all this work with before building started. For sure I am in agreement that this development is good for the economy – the wine farms should rather participate and have wine stalls at this venue as it will attract all the feet, but the builder should also first get all the permissions. Let’s hope sanity will prevail.

I couldn’t agree more! And while they wait for it all to be sorted out many jobs have been lost. One would think that in this economic climate creating jobs is of the utmost importance. This market contributed significantly to the economy in the area. Such a shame……

The developer should have followed the town planning rules and zoning requirements. Period. This is what we do in a civilised society, his greedy actions have cost the traders( his clients) a lot of money in shopfitting, deposits etc . Money he now has to spend on legal fees!

Can someone….anyone…please show me the plans passed for the informal settlements that have sprung up all over this country. You cant have rules for one segment of the population that do not apply to another. That is racist, un democratic and unfair. Just asking …..

… and the plans for the thousands of “dwellings” erected on the Cape Town Main railway line from Langa to Khayelitsha cancelling any re-opening to transport thousands of commuters daily.

Informal dwelling don’t need planning permission. I might not agree with it but it is the law

This development is testimony to the times we live in. Developers brazingly building egotistic architectural temples completely out of touch with the surroundings and neighbours, whilst knowing the municipality is under resourced and flat-footed to oppose them. The mere fact that this development without building plans was only stopped at roof level proves this point. The traders have paid deposits and they have erected shop-fitting at own cost and the developer refuses to compensate them. The phrase about ” being victimised ” is very telling, and these are people at the entry level to the economy being exploited by big bullies. The Polkadraai development mention by Joubert shares many of these tactics. Longlands farm was changed unconstitutionally to urban infill by the wave of a wand by the Departement of Rural development and Land Affairs . This has lets all kinds of evils out of the basket as president. The current developers are building a Gate house and dangerous crossing over the provincial Polkadraai rd for another 1 Billion gated estate for which final approval has NOT been granted! The Stellenbosch Interest Group is trying its utmost to get the municipality to fulfil its duties. Without pressure this is another Trojan horse for more suburbs on farmland. Help please!

Owners off land should have the last say about the use of their land with municipality nobody else.

Gert, salute my brother!

What is the use for property rights if one cannot do with it as you please? Everybody wants to “preserve the natural state and the rural atmosphere” after they have built their own new house in the now old new development. Every person complain about the horrendous traffic, while they are sitting in their car, exaserbating the problem. People are quick to campaign and to infringe upon the rights of others, as long as others stay off their property and don’t tell them what to do on their yard.

Hypocrisy is the term that comes to mind. Well-meaning hypocrits.

Yes Gert until someone puts up a Spaza Shop, Taxi rank or Night Club on your doorstep. Then you will sing a very different tune

This is a perfect example of how far down the line Developers are prepared to go for the big bucks. At the end of the day, land was destroyed for yet another development all in the name of money. From a tourist’s point of view, I can attest that as a South African the area involved is not worth the visit as the traffic is horrendous and its development after development after development which is an eyesore. This is becoming a problem in the wider Western Cape as pristine areas, which should be driven as eco-tourism, are destroyed and the biggest irony of all is that the Western Cape would’ve drawn more tourist locally and from overseas with eco-tourism as that is now the future. After 2020 everyone has learned lessons and nobody wants to visit over-developed areas. The Western Cape should take notice of what’s happening in other tourism spots such as Venetia, where the Venetians have, finally, had it with the huge tourist ships.

Cowboys don’t cry – there is a massive difference between building plans and consent use. Its clear he’s totally in breach of his consent use approval. Expect a bouquet of PK’s from the WHOLE of Stellenbosch Dax

Gesie is the reasons you should leave the country. Not Julius or Zuma or Ace. I realised that if a person of her background could not grow a backbone and sort out the squatters against Papagaaiberg or at least restrict building there then there is no hope for South Africa. She is still the star of the show, a show called: The making of Stellentoilet.

“ …using our best endeavours to resolve same at the earliest opportunity without the need to resort to litigation” – does this mean someone is going to get bribed or does it mean that the developers and the municipality will be able to find a peaceful resolution that is for the greater good of the community and the environment?

Take one step back, Firstly, will a developer, as per the article, spend R 80 mil on an “Illegal” project. Dax might be over eager but he is surely not stupid!
Secondly, multiple inspections was done to obtain an occupation certificate, why would the Municipality even conduct that on an “Illegal” structure?
Thirdly, Personally I think this is more a case of jealousy by the farmers in the area than a legally flawed project.
Come on guys we all know it is going to be a market of note, maybe a thread to the others, but surely a Stellenbosch land mark for visitors.
The Stellies Mafia might just lose this one!

Some serious allegations levelled against the developer here. Strange then that instead of using the opportunity to vindicate himself he plays the victim by claiming he will not get a fair hearing in the press and that he forged ahead for the good of the community, etc.
Why did he instruct traders not to go to the press?
Why did he refuse council access to the building site?
Why did he ignore a High Court order to cease construction?
On the face of it certainly looks like the developer didn’t follow procedure and went even further by ignoring a court order.
It is just very unfortunate that the traders have to bear the brunt of this sad situation
I look forward to following this unfolding story.

End of comments.

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