Wits embroiled in land dispute

Wits University has been accused of reneging on the 116-year-old agreement under which it received a donation of Frankenwald Estate—a prime slice of fallow land north of Johannesburg—from the government solely for educational use. The university hotly denied the charge this week.

Mining magnate Alfred Beit donated Frankenwald to the former Colony of Transvaal in 1905 “in perpetuity” and “solely and only” for educational purposes. The Union government transferred Frankenwald to Wits in 1922 via an Act of Parliament.

In 2001, the Mail & Guardian has established, the university secretly appointed a private developer to turn Frankenwald into a mixture of a Sandton City-style shopping centre, offices, light industry and medium and high-density housing.

Less than 10% of the property would be used by the university for educational purposes.

Under the terms of the confidential 2001 land availability agreement, which the M&G has seen, Wits all but handed over the property to private developer iProp.

The latter would be entitled to a 12.5% management fee from the development, 50% of the profit and administrative control of the bank account.

Frankenwald, which stands at the crossroads of two major highways and the Gautrain, is prime real estate. Estimates of the property development’s worth vary, but it could net as much as R750-million for Wits and iProp combined.

It is unclear whether Wits’s senior management disclosed full details of the agreement to the university council.

Wits deputy vice-chancellor Patrick FitzGerald would not confirm whether the council had ever approved the deal, saying only: “The agreement was concluded within the confines of the provisions of the Higher Education Act and the university statute.”

However, under the statute, the council may not delegate “the decision to embark on the construction of a permanent building or other immovable infrastructural development, and the purchase of immovable property or entering into the long-term lease of immovable property”.

A council member who has served for six years said that in that time, the council had never seen the full agreement, although its existence had been alluded to. “Senior management have been very wary about sharing any information about it with council, to the point of defensiveness,” the Council member said.

Objections to the development by a neighbouring property developer, the Waterval Islamic Institute, resulted in a six-year legal battle, during which no development has taken place at Frankenwald.

The institute had also planned to build a regional shopping centre in the area, but was thwarted when Wits and iProp obtained planning permission for one at Frankenwald.

Community activists and residents’ associations now fear that Wits is close to reaching a legal settlement with the institute that would allow the development to proceed and are once again mobilising against it.

The growing opposition to the Frankenwald development echoes a long-running battle fought by the Saxonwold community against property developers who sought to turn Zoo Lake into a private development, in spite of it being granted for public use in perpetuity.

Critics raise four key objections to the Frankenwald development:

  • It betrays Beit’s deed of gift;

  • It will deprive surrounding communities—especially neighbouring Alexandra township—of access to the educational facilities envisaged in the deed of gift;

  • The proposed township component of the development is unsatisfactory; and

  • Frankenwald contains wetlands with endangered plant species, while iProp was granted an environmental impact assessment (EIA) exemption.

“This is a deed of gift for ‘education in perpetuity’ and half the profit will go to the developer in a ‘commercial transaction’,” said Jim Powell, the chair of the Buccleuch residents’ forum, which opposes the development.

“There is already a shopping centre [Woodmead Retail Park] in the area. What Alex residents need is schooling and housing, in that order,” said Jacky Sepoa, the secretary of the Alexandra Land and Property Owners’ Association.

Powell also said that the proposed housing development would be “a good thing” but the density—200 residences per hectare—would be tantamount to “building new slums”.

He said that the Gauteng agriculture department had approved the EIA exemption based on a pre-application checklist submitted by iProp, rather than a full submission.

“I’ve never heard of a piece of land that size, which has lain fallow for so many years, being exempt from an EIA,” Powell said.

FitzGerald responded that Wits could use the land to generate funds for education, without necessarily using it for education.

“Since Wits is a public educational institution existing for the public good, any financial profit or benefit obtained by Wits from Frankenwald will be a contribution to education, specifically public higher education, as well as to the research and other knowledge purposes of the university,” he said.

He said it was an “urban legend” that Wits could use Frankenwald only for educational purposes.

“Planning permission obtained by Wits allows for use of the site in a number of ways, including educational,” FitzGerald said.

The town planning tribunal of the Johannesburg metropolitan council indeed approved the rezoning of Frankenwald from “educational” and “scientific” to “special” for a variety of uses in 2004.

However, the city suspended the new zoning rights after the Waterval Islamic Institute challenged the decision in court.

FitzGerald declined to comment on the EIA exemption, saying that it formed part of the institute’s legal objection to the development, which was still sub judice.

He denied that a settlement had been reached between Wits, iProp and the institute.

Ibrahim Mia, the institute’s owner, did not return the M&G‘s calls. However, a source close to the institute also denied that a settlement was imminent.

iProp declined to comment, saying it had “no authority or mandate to comment on behalf of the landowner [Wits]”.

The department of environmental affairs would also not comment, as it was still searching for iProp’s original EIA application.

An activist with a long-running interest in Frankenwald, who declined to be named, said denials about an imminent legal settlement were not necessarily true.

“Wits could include the institute as co-developers of Frankenwald with iProp in return for the institute dropping its legal challenge, which is costing all parties millions of rands in legal fees. Such an arrangement would be a win-win for all parties,” the activist said.

This article was produced by amaBhungane, investigators of the M&G Centre for Investigative Journalism, a nonprofit initiative to enhance capacity for investigative journalism in the public interest. www.amabhungane.co.za.

Lionel Faull

Lionel Faull

Lionel is a reporter at the Mail & Guardian Centre for Investigative Journalism, Amabhungane. Read more from Lionel Faull

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