CHAPTER II
PROTECTION AND MANAGEMENT OF HERITAGE RESOURCES
Part 1: Formal protections
National heritage sites and provincial heritage sites
27. (1) SAHRA must identify those places with qualities so exceptional that they are of special national significance in terms of the heritage assessment criteria set out in section 3(2) and prescribed under section 6(1) and (2), and must investigate the desirability of their declaration as national heritage sites.
(2) A provincial heritage resources authority must identify those places which have special qualities which make them significant in the context of the province or a region in terms of the heritage assessment criteria set out in section 3(2) and prescribed under section 6(1) and (2) and must investigate the desirability of their declaration as provincial heritage sites.
(3) Any person may submit a nomination to SAHRA for a place to be declared a national heritage site or to the provincial heritage resources authority for a place to be declared a provincial heritage site. The heritage resources authority concerned may prescribe the format and procedures for such nominations.
(4) A written motivation for the declaration of a place as a heritage site must be prepared and kept on record by the heritage resources authority.
(5) SAHRA may, by notice in the Gazette, declare any place referred to in subsection (1) to be a national heritage site.
(6) A provincial heritage resources authority may, by notice in the Provincial Gazette, declare any place referred to in subsection (2) and described in the notice to be a provincial heritage site.
(7) The heritage resources authority concerned may, by similar notice—
(a) amend any notice published under subsection (5) or (6); or
(b) withdraw any notice published under subsection (5) or (6) or paragraph (a) of this subsection.
(8) Before declaration of a place as a heritage site, or amendment or withdrawal of a notice under subsection (7), the heritage resources authority—
(a) must notify the owner;
(b) must notify the mortgage holder, the occupier and any other person with a registered interest in the property;
(c) must notify all conservation bodies which have, in terms of section 25(1)(b), registered their interest in the geographical area in which the proposed heritage site is situated, and give them at least 60 days to make submissions regarding the proposed declaration, amendment or withdrawal, and in the case of the owner, to propose conditions under which the action will be acceptable. All submissions must be considered by the heritage resources authority before a final decision is made; and (d) before notifying the owner as provided in paragraph (a), must give to the owner reasonable opportunity for representations or submissions to be made in regard to the proposed notification.
(9) A heritage resources authority may at any time withdraw a notice which it has served in terms of subsection (8)(a).
(10) For the purposes of subsections (15) to (22), a place shall be deemed to be protected as a heritage site for six months from the date of service of a notice under subsection (8)(a) or until the notice is withdrawn or the place is declared to be a heritage site, whichever is the shorter period.
(11) Subject to subsection (12), if the owner objects to the proposed declaration of a place or proposes conditions which the heritage resources authority reasonably considers to be unacceptable, the heritage resources authority may, prior to the expiry of the notice in terms of subsection (10), renew a notice under subsection (8)(a), whereupon the protection under subsection (10) shall be extended for a further six months. If during this time consultation between the heritage resources authority and the owner fails to lead to the withdrawal of the owner’s objection or the proposal of acceptable conditions, the heritage resources authority may declare the place to be a heritage site.
(12) The Minister, on the advice of SAHRA, must prescribe circumstances in which the State, a local authority or a supported body may object to the declaration as a heritage site of a place which it owns or controls.
(13) SAHRA must inform the provincial heritage resources authority, the provincial planning authority and the local authority within whose area of jurisdiction a national heritage site falls, within 30 days of its declaration.
(14) A provincial heritage resources authority must inform SAHRA, the provincial planning authority and the local authority within whose area of jurisdiction a provincial heritage site falls, within 30 days of its declaration.
(15) SAHRA is responsible for the protection of national heritage sites in accordance with the provisions of this section.
(16) A provincial heritage resources authority is responsible for the protection of provincial heritage sites in accordance with the provisions of this section.
(17) Except in cases where the heritage resources authority considers it inappropriate, all heritage sites must be marked with a badge indicating their status.
(18) No person may destroy, damage, deface, excavate, alter, remove from its original position, subdivide or change the planning status of any heritage site without a permit issued by the heritage resources authority responsible for the protection of such site.
(19) The responsible heritage resources authority may make regulations pertaining to heritage sites under its control, or to any other heritage site with the consent of the owner of that site—
(a) safeguarding heritage sites from destruction, damage, disfigurement, excavation or alteration;
(b) regulating the conditions of use of any heritage site or the conditions for any development thereof;
(c) regulating the admission of members of the public to a heritage site, and the fees payable for such admission.
(20) Any branch of the State or supported body which is the owner of a heritage site must maintain such site according to a minimum standard and according to a procedure prescribed by the responsible heritage resources authority after consultation with the relevant Departments of Works.
(21) The responsible heritage resources authority may, by agreement with the owner of a heritage site—
(a) conserve or improve any heritage site;
(b) construct fences, walls or gates around or on a heritage site;
(c) acquire or construct and maintain an access road to a heritage site over any land, and construct upon such land fences, walls or gates; or
(d) erect signs on or near a heritage site.
(22) No person may damage any fence, wall or gate constructed or sign erected by a heritage resources authority in terms of subsection (21).
(23) (a) All reproduction rights either in two or three dimensions in respect of a heritage site, subject to any existing rights and the agreement of the owner of such site, belong to the State and vest in the heritage resources authority responsible for the protection of such site or, by agreement, with the authority or public institution responsible for the management of such site.
(b) Subject to the provisions of paragraph (a), no person other than the owner of the site may make such reproduction for profit without a permit issued by SAHRA or a provincial heritage resources authority, as the case may be, which may prescribe the fees payable in respect of such reproduction and must deposit such fees in a trust fund dedicated to the conservation of such site or of heritage resources in general.
Protected areas
28. (1) SAHRA may, with the consent of the owner of an area, by notice in the Gazette designate as a protected area—
(a) such area of land surrounding a national heritage site as is reasonably necessary to ensure the protection and reasonable enjoyment of such site, or to protect the view of and from such site; or
(b) such area of land surrounding any wreck as is reasonably necessary to ensure its protection; or
(c) such area of land covered by a mine dump.
(2) A provincial heritage resources authority may, with the consent of the owner of an area, by notice in the Provincial Gazette designate as a protected area—
(a) such area of land surrounding a provincial heritage site as is reasonably necessary to ensure the protection and reasonable enjoyment of such site, or to protect the view of and from such site; or
(b) such area of land surrounding any archaeological or palaeontological site or meteorite as is reasonably necessary to ensure its protection.
(3) No person may damage, disfigure, alter, subdivide or in any other way develop any part of a protected area unless, at least 60 days prior to the initiation of such changes, he or she has consulted the heritage resources authority which designated such area in accordance with a procedure prescribed by that authority.
(4) With regard to an area of land covered by a mine dump referred to in subsection (1)(c) SAHRA must make regulations providing for the protection of such areas as are seen to be of national importance in consultation with the owner, the Minister of Minerals and Energy and interested and affected parties within the mining community.
(5) A heritage resources authority may make regulations providing for specific protections for any protected area which it has designated, including the prohibition or control of specified activities by any person in the designated area.
(6) A local authority may, with the agreement of the heritage resources authority which designated a protected area, make provision in its town planning scheme or in by-laws for the management of such area.
Provisional protection
29. (1) SAHRA, or a provincial heritage resources authority, may, subject to subsection (4), by notice in the Gazette or the Provincial Gazette, as the case may be—
(a) provisionally protect for a maximum period of two years any—
(i) protected area;
(ii) heritage resource, the conservation of which it considers to be threatened and which threat it believes can be alleviated by negotiation and
consultation; or
(iii) heritage resource, the protection of which SAHRA or the provincial heritage resources authority wishes to investigate in terms of this Act;
and
(b) withdraw any notice published under paragraph (a).
(2) A local authority may, subject to subsection (4), by notice in the Provincial
Gazette—
(a) provisionally protect for a maximum period of three months any place which it considers to be conservation-worthy, the conservation of which the local authority considers to be threatened and which threat it believes can be alleviated by negotiation and consultation; and
(b) withdraw any notice published under paragraph (a): Provided that it notifies the provincial heritage resources authority within seven days of such provisional protection.
(3) A provincial heritage resources authority may, by notice in the Provincial Gazette, revoke a provisional protection by a local authority under subsection (2) or provisionally protect a place concerned in accordance with subsection (1).
(4) A heritage resources authority or a local authority may not provisionally protect any heritage resource unless it has notified the owner of the resource in writing of the proposed provisional protection.
(5) A heritage resource shall be deemed to be provisionally protected for 30 days from the date of service of a notice under subsection (4) or until the notice is withdrawn or the resource is provisionally protected by notice in the Gazette or the Provincial Gazette, whichever is the shorter period.
(6) A heritage authority or a local authority may at any time withdraw a notice which it has issued under subsection (4).
(7) SAHRA shall inform the relevant provincial heritage authority and local authority within 30 days of the publication or withdrawal of a notice under subsection (1).
(8) A provincial heritage resources authority shall inform the relevant local authority
within 30 days of the publication or withdrawal of a notice under subsection (1).
(9) A local authority shall inform the provincial heritage authority of the withdrawal of a notice under subsection (2)(b).
(10) No person may damage, deface, excavate, alter, remove from its original position, subdivide or change the planning status of a provisionally protected place or object without a permit issued by a heritage resources authority or local authority responsible for the provisional protection.
Heritage Registers
30. (1) A provincial heritage resources authority must compile and maintain a heritage register listing the heritage resources in the province which it considers to be conservation-worthy in terms of the heritage assessment criteria set out in section 3(3) and prescribed under section 7.
(2) Subject to subsection (7), a provincial heritage resources authority may, by notice in the Provincial Gazette, list a heritage resource or amend or delete an entry in a heritage register.
(3) Heritage resources must be listed in accordance with—
(a) the sub-categories of Grade II and Grade III heritage resources prescribed under section 7, if any;
(b) the areas of jurisdiction of local authorities; and
(c) any additional categories prescribed by the provincial heritage resources authority in consultation with SAHRA.
(4) A provincial heritage resources authority must prescribe the procedure and information required for—
(a) the nomination of a resource for listing in a heritage register; and
(b) the compilation of an inventory of heritage resources referred to in subsection (5),
which shall require at least compliance with such minimum standards as may be prescribed by SAHRA for the recording of information under section 39.
(5) At the time of the compilation or revision of a town or regional planning scheme or a spatial development plan, or at any other time of its choosing, or at the initiative of a provincial heritage resources authority where in the opinion of a provincial heritage resources authority the need exists, a planning authority shall compile an inventory of the heritage resources which fall within its area of jurisdiction and submit such inventory to the relevant provincial heritage resources authority, which shall list in the heritage register those heritage resources which fulfil the assessment criteria under subsection (1).
(6) A provincial heritage resources authority may approve an inventory of heritage resources submitted to it by any person for listing in the heritage register.
(7) A provincial heritage resources authority shall not list a place in a heritage register without having consulted the owner of such place regarding inter alia the provisions to be established under subsection (11) for the protection of the place.
(8) The MEC may, after consultation with the MEC for local government, prescribe the process of consultation referred to in subsection (7).
(9) On publication of a notice in the Provincial Gazette concerning the listing in the heritage register of a place within its area of jurisdiction, or the amendment or deletion of an entry for such place, a local authority must notify the owner of such place.
(10) A local authority shall notify SAHRA and the provincial heritage resources authority when a place within its area of jurisdiction which is listed in the heritage register is destroyed, whereupon the provincial heritage resources authority shall record the destruction of the place against the entry in the heritage register for that place, and SAHRA shall record such destruction in the inventory of the national estate.
(11) Within six months of the publication of a notice in the Provincial Gazette concerning the inclusion in the heritage register of a place falling within its area of jurisdiction, every local authority must make provision for the protection of such place through the provisions of its planning scheme or by-laws under this Act: Provided that any such protective provisions shall be jointly approved by the provincial heritage resources authority, the relevant local authority and the provincial planning authority, and provided further that—
(a) the special consent of the local authority shall be required for any alteration to or development affecting a place listed in the heritage register;
(b) the local authority must, prior to the consideration of an application under paragraph (a), notify any conservation bodies which have, in terms of section 25(1)(b), registered their interest in the geographical area or type of property concerned and give them a reasonable period in which to register an objection or make other representations with respect to the application;
(c) in assessing an application under paragraph (a), the local authority shall consider—
(i) the cultural significance of the place and how this could be affected by the proposed alteration or development; and
(ii) any objection or representations under paragraph (b);
(d) where the local authority resolves to approve an application under paragraph (a) which would materially affect the cultural significance of the place and an objection to such approval has been registered under paragraph (b), unless the conservation body concerned withdraws such objection, the objection shall be deemed to be an appeal in terms of section 49 and the local authority shall submit the application and all relevant information to the relevant appeal body; and
(e) in the event of any alteration or development of a place listed in a heritage register being undertaken without the consent of the local authority, the local authority may require the owner to stop such work instantly and restore the site to its previous condition within a specified period. If the owner fails to comply with the local authority’s requirements the local authority shall have the right to carry out such restoration work itself and recover the cost thereof from the owner.
(12) A provincial heritage resources authority or a local authority within whose area of jurisdiction such site is located may provisionally protect any place in an inventory referred to in subsections (5) and (6): Provided that such provisional protection shall be withdrawn when the place is listed in the heritage register.
(13) A local authority may mark any place falling within its area of jurisdiction listed in a heritage register with a badge indicating its status.
(14) Inclusion of a place in a heritage register shall not exempt any person from complying with the provisions of sections 35 and 36.
Heritage areas
31. (1) A planning authority must at the time of revision of a town or regional planning scheme, or the compilation or revision of a spatial plan, or at the initiative of the provincial heritage resources authority where in the opinion of the provincial heritage resources authority the need exists, investigate the need for the designation of heritage areas to protect any place of environmental or cultural interest.
(2) Where the provincial heritage resources authority is of the opinion that the need exists to protect a place of environmental or cultural interest as a heritage area, it may request a planning authority to investigate its designation in accordance with proposals submitted by the provincial heritage resources authority with its request. The planning authority must inform the provincial heritage resources authority within 60 days of receipt of such a request whether it is willing or able to comply with the request.
(3) Where the planning authority informs the provincial heritage resources authority that it is willing and able, the provincial heritage resources authority must assist the planning authority to investigate the designation of the place as a heritage area.
(4) Where the planning authority does not so inform the provincial heritage resources authority, or informs the provincial heritage resources authority that it is not so willing and able, the provincial heritage resources authority may investigate the designation of the place as a heritage area and, with the approval of the MEC, designate such place to be a heritage area by notice in the Provincial Gazette.
(5) A local authority may, by notice in the Provincial Gazette, designate any area or land to be a heritage area on the grounds of its environmental or cultural interest or the presence of heritage resources, provided that prior to such designation it shall consult—
(a) the provincial heritage resources authority; and
(b) owners of property in the area and any affected community, regarding inter alia the provisions to be established under subsection (7) for the
protection of the area.
(6) The MEC may, after consultation with the MEC responsible for local government, publish regulations setting out the process of consultation referred to in subsection (5).
(7) A local authority must provide for the protection of a heritage area through the provisions of its planning scheme or by-laws under this Act, provided that any such protective provisions shall be jointly approved by the provincial heritage resources authority, the provincial planning authority and the local authority, and provided further that—
(a) the special consent of the local authority shall be required for any alteration or development affecting a heritage area;
(b) in assessing an application under paragraph (a) the local authority must consider the significance of the area and how this could be affected by the proposed alteration or development; and
(c) in the event of any alteration or development being undertaken in a heritage area without the consent of the local authority, it shall have the power to require the owner to stop such work instantly and restore the site to its previous condition within a specified period. If the owner fails to comply with the requirements of the local authority, the local authority shall have the right to carry out such restoration work itself and recover the cost thereof from the owner.
(8) A local authority may erect signage indicating its status at or near a heritage area.
(9) Particular places within a heritage area may, in addition to the general provisions governing the area, be afforded further protection in terms of this Act or other heritage legislation.
Heritage objects
32. (1) An object or collection of objects, or a type of object or list of objects, whether specific or generic, that is part of the national estate and the export of which SAHRA deems it necessary to control, may be declared a heritage object, including—
(a) objects recovered from the soil or waters of South Africa, including archaeological and palaeontological objects, meteorites and rare geological specimens;
(b) visual art objects;
(c) military objects;
(d) numismatic objects;
(e) objects of cultural and historical significance;
(f) objects to which oral traditions are attached and which are associated with living heritage;
(g) objects of scientific or technological interest;
(h) books, records, documents, photographic positives and negatives, graphic material, film or video or sound recordings, excluding those that are public records as defined in section 1(xiv) of the National Archives of South Africa Act, 1996 (Act No. 43 of 1996), or in a provincial law pertaining to records or archives; and
(i) any other prescribed category.
(2) For the purposes of this section, an object within a type of objects declared to be a heritage object is deemed to be a heritage object.
(3) Before declaring any object contemplated in subsection (1) as a heritage object, SAHRA may give to the owner such prior opportunity for representations or submissions to be made in regard to the proposed declaration as may be practicable in the circumstances and in such manner as may be prescribed. Nothing herein contained shall oblige SAHRA to give such prior opportunity if the circumstances militate against this.
(4) SAHRA with the approval of the Minister may, by notice in the Gazette—
(a) declare an object, or a collection thereof, or a type of object or list of objects, whether specific or generic, to be a heritage object;
(b) amend any notice published under paragraph (a); or
(c) withdraw any notice published under paragraph (a) or amended under paragraph (b).
(5) SAHRA may not exercise its power under subsection (4) unless—
(a) in the case of a specific object or collection, it has served on the owner a notice of its intention and has given him or her at least 60 days to lodge an objection or suggest reasonable conditions regarding the care and custody of such object under which such declaration is acceptable; or
(b) in the case of a type of objects, it has—
(i) published a notice of provisional declaration in the Gazette;
(ii) by public advertisement and any other means it considers appropriate, made known publicly the effect of the declaration and its purpose; and
(iii) invited any interested person who might be adversely affected to make submissions to or lodge objections with SAHRA within 60 days from the date of the notice, and has considered all such submissions and objections.
(6) An object or collection shall be deemed to be protected as a heritage object for six months from the date of service or publication of a notice under subsection (5)(a) or
(5)(b)(i), or until such notice is withdrawn or the object or collection or type of objects is declared to be a heritage object, whichever is the shorter period.
(7) SAHRA must maintain a register of heritage objects in which all objects, collections of objects and types of objects which have been declared heritage objects must be listed.
(a) The register shall be in two parts:
(i) Part I: Heritage objects listed by type.
(ii) Part II A: Specific heritage objects as listed in the inventory of a public museum in South Africa or otherwise displayed or kept in secure conditions.
(iii) Part II B: Other specific heritage objects.
(b) SAHRA may prescribe the further division of the parts of the register into categories or other subdivisions.
(8) SAHRA must make available to the public, subject to subsection (9), a summary of information contained in the register.
(9) Where it is necessary to ensure the proper protection of a heritage object which is entered in the register, no information which may identify the location of the object must be accessible to any person except with the express consent of SAHRA, for so long as SAHRA may determine.
(10) SAHRA may designate any person or any institution in South Africa as an expert examiner for the purposes of this section, on the basis of his, her or its special knowledge.
(11) SAHRA may provide to the owner or custodian of a heritage object listed in Part II of the register of heritage objects a certificate or badge indicating its status.
(12) The owner of a heritage object listed in Part II of the register of heritage objects must notify SAHRA of the name and address of the new owner when such object is sold or otherwise alienated and must provide the new owner or custodian with any certificate or badge under subsection (11) relating to such a heritage object.
(13) No person may destroy, damage, disfigure or alter any heritage object, or disperse any collection which is listed in Part II of the register, without a permit issued by SAHRA.
(14) SAHRA may make regulations relating to the registration of dealers in heritage objects and the control of trade in heritage objects.
(15) It is the responsibility of the owner or custodian of a heritage object listed in Part II of the register of heritage objects, to keep the heritage object in good condition and in a secure place.
(16) The owner or custodian of a heritage object, listed in Part II of the register of heritage objects, must immediately report to SAHRA any loss of or damage to such a heritage object or any part thereof upon discovery of such loss or damage.
(17) No person may carry out any work of restoration or repair of a heritage object, listed in Part II of the register of heritage objects, without a permit issued by a duly authorised representative of SAHRA.
(18) On application by the owner or custodian of a heritage object listed in Part II of the register of heritage objects, SAHRA may at its discretion assist in funding any restoration or repair work undertaken by a restoration or repair craftsperson approved by SAHRA.
(19) No person may export or attempt to export from South Africa any heritage object
without a permit issued by SAHRA.
(20) No heritage object may be removed from South Africa other than through a customs port of entry, and the relevant export permit issued under subsection (19) or certificate of exemption issued under subsection (32) must be produced to a custom officer before removal from South Africa is effected or allowed.
(21) An application for such an export permit must be made in the manner and contain
such information as prescribed by SAHRA.
(22) 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.
(23) 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.
(24) 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.
(25) 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.
(26) On receipt of a notification under subsection (25) 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.
(27) Where SAHRA establishes a delay period under subsection (26)(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.
(28) SAHRA, in consultation with the Minister, may extend a delay period established under subsection (26)(a) for a maximum period of two years.
(29) In the event that—
(a) during a delay period established under subsection (26)(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 (26)(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.
(30) Where a delay period established under subsection (26)(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.
(31) Where a delay period established under subsection (26)(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.
(32) A person who intends to import an object which is of a type listed in Part I of the register of heritage objects, for temporary purposes or in circumstances in which the person may subsequently wish to export the object, may apply to SAHRA for a certificate of exemption authorising the export of the object concerned for the period specified in the certificate.

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