By Johan Pretorius
Chairman of the Concerned Citizen’s Group who opposed the establishment of a naturist beach at Impenjati Rev. Mike Effanga, has expressed his extreme satisfaction with the finding of the Public Protector that the process to establish the beach, was illegal.
The Public Protector says RNM, when still known as the Hibiscus Coast Municipality, acted improperly when handling the application to establish the beach. The municipality did not follow proper procedures and prescripts, therefore the beach is illegal. It suggests specific remedial action which should be taken within 30 days if the municipality should want to pursue the matter. ( See full story below )
Rev. Effanga released the report in Marburg on Monday evening, and said, inter alia, the Concerned Citizens’ Group held the view that the Municipality had irregularly and improperly approved the establishment of a nudist friendly beach. This amounted to a contravention of municipal, provincial and national laws of the Republic of South Africa. Furthermore, the approval and manner in which it had been done contravened Municipal by-laws and the Constitution with respect to public consultations with affected communities. The Public Protector’s report confirmed this viewpoint.
He told Johan Pretorius it was regrettable that a process over several years had to be followed, including the lodging of a complaint with the Public Protector, to get to the stage where the beach was indeed confirmed to be illegal. He hoped the RNM would take heed of the findings……
CAMERAWORK BY MNDENI NENE OF 1KZNTV
EARLIER STORY ON THE PUBLIC PROTECTOR’S FINDINGS:
The Public Protector has found that the Ray Nkonyeni Municipality (then Hibiscus Coast) improperly designated the Mpenjati Estuary as a nudist friendly beach, and did not follow proper procedures and prescripts. The report of the PP following representations by the Concerned Citizens’ Group, which opposed the establishment of the beach, was made public at a meeting in Marburg on Monday evening by the chairperson of the group, Reverend Mike Effanga.
The report states that the council relaxed specific bylaws and approved the request from the KwaZulu-Natal Naturists Association for the establishment of the nudist friendly beach before making its own application to the Department of Environmental Affairs and KwaZulu-Natal Ezemvelo, as required by law. The municipality therefore breached its own policies by unlawfully relaxing the by-laws which prohibits nudism on all its beaches. The report points out municipal by-laws are amended and adopted through a formal process in terms of the Local Government Systems Act. In this case, the municipality simply relaxed its own policy without formally amending and adopting same, thereby violating and unlawfully breaching it. The use of the phrase ‘relaxing the by-law’ by the municipality in the circumstances was more of a ‘white wash attempt and sugar-coating exercise’ intended to cause the municipality’s unlawful act to seem more appealing or pleasant.
The Public Protector’s report further states the allegation that the municipality failed to follow a proper consultation process, and improperly failed to consider objections to the establishment, is substantiated. Despite the fact that the municipality afforded the public an opportunity to express its views, the overwhelming views of the majority who objected to the establishment of the nudist beach were not considered when the relevant resolution was passed. Therefore the public consultation process was not proper and meaningful, as the views expressed by the majority of the community members, who were objecting to the establishment of the nudist friendly beach, were completely ignored by die municipal council without even laying the legal and factual basis for discarding the majority views of its community during the final decision-making stages. As a result, the conduct by the Municipal Council constitutes improper conduct as envisaged in section 182 (1) of the Constitution, and maladministration as envisaged in section 6 (4) (a) (i) of the Public Protector Act.
The Public Protector suggests the following remedial action: The Ray Nkonyeni Council must, within 30 days of issue of the final report, reconsider the relevant council resolution. In the event of a future properly submitted application or request for the establishment of the naturist beach is submitted to the municipality, or the municipality on its own initiative, opts to exercise its own executive and legislative authority to establish a naturist beach, the municipality should, prior to making any determination on the request submitted or exercising its own initiative option, approach the office of the KZN MEC: Co-operative Governance and Traditional Affairs and the Minister of Environmental Affairs for assistance, guidance and support relating to compliance with the applicable legal prescripts.
Furthermore, the Public Protector says, in the light of the submission that naturism is practised as a religion by certain groups in our society, it is recommended that the municipality must in future further consult with the Commission for the Promotion and Protection of the Rights of Cultural, Religious and Linguistic Communities (CRL) chairperson for proper guidance and assistance in the handling of this matter. This will ensure that the constitutional rights of minorities in our society are also protected. If there should be a valid and proper decision by the municipal council to proceed with the application for the establishment of the naturist beach at the Impenjati Estuary, in view of the uniqueness and seriousness of the issues involved, the Municipal Manager must always lead the process of handling or dealing with this matter, and not completely remove himself and/or delegate all or a greater percentage of his authority to an official of lower rank or authority than himself. Should the Municipal Council decide to vote against the will of the majority of its community members, the municipality should lay a factual or legal basis for doing so in order to justify the rationality of its decision in line with the limitation clause or section 36 of South Africa’s Constitution.
The Public Protector also instructs the MEC to, within 60 days of the publication of this report, and in accordance with section 55 of the National Environmental Management: Integrated Coastal Management Act, review Ray Nkonyeni Municipality’s Coastal Management programme relating to the establishment of the nudist friendly beach at the Mpenjati Estuary. The MEC must, after reviewing in terms of the above legal provisions, the Coastal Management Programme relating to the establishment of the nudist friendly beach, accordingly advise the municipality to amend or replace the programme within a reasonable period. The report concludes by saying the municipal manager of Ray Nkonyeni Municipality is to submit an implementation plan to the Public Protector indicating how the remedial action will be implemented within 30 days from the date of the receipt of this report.
When approached for comment last night, Municipal Manager Max Mbili pointed out he said two months ago the municipality would accept any finding of the Public Protector, as this was not a project of the municipality. The municipality was responding to the application and the positive response was influenced by the Bill of Rights enshrined in the South African Constitution which says ‘the organ of state cannot discriminate against people based on their beliefs’. He added: ‘It is interesting to note that the Public Protector does not take a position whether it is legal or illegal to have a nudist friendly beach in South Africa’.