The Transnet National Ports Authority (TNPA) released a media statement on Saturday 17 February 2018 stating that the Algoa Bay Yacht Club (ABYC) must move out of premises that the nearly 60 year-old club occupies within the Port of Port Elizabeth.
The dispute centres around rental, non-payment of rental, assessment of rental far beyond the financial means of ABYC as a voluntary body and irregular rental increases.
As in all disputes of this nature the cold hard facts are really around two issues:
- Who is the landlord?
- Who has the most money?
The answers to both above are: TNPA
Any realist will tell you that the person who ‘owns’ the land and has bottomless coffers will win any legal fight.
Now this is where it gets interesting as the ABYC took the complaint over TNPA’s unfair treatment to the Port Regulator for a decision rather than turning to the courts.
The Port Regulator operates as the Ombudsman for TNPA and has ruled in the past on TNPA’s irregular increase on Port Tarrifs, forcing the TNPA to back down and reduce tariffs on more than a few occasions.
The path to getting a hearing in front of the Port Regulator has been beset with delaying tactics from the TNPA – the most severe of which being an eviction order accelerated after the ABYC won the first round in front of the Port Regulator. TNPA has been summonsed to appear in the Port Elizabeth, High Court on Friday 23 February at 9:30 am.
ABYC first brought the complaint to the attention of the Port Regulator in November 2009. Delaying tactics, legal manouvering and actions like TNPA ‘losing’ the recorded minutes of the first pre-hearing all contributed to the wearing down of the then Executive Committees.
A new Exco in 2014 made the decision to tackle this problem head on and find a solution as the continued friction between ABYC and TNPA was not a happy state of affairs. The continued friction between the parties contributed negatively to TNPA’s stature as a caring corporate State Owned Enterprise, ABYC’s ability to continue promoting the sport of sailing and the well being of Nelson Mandela Bay in general through international tourists and exposure to the world at large through them. Talks and negotiations began on a broad basis as the parties moved closer together.
An unexpected eviction order from TNPA was answered by ABYC resurrecting the Port Regulator Complaint and the parties met at a pre-hearing n 29 August 2017. More stalling tactics from the TNPA saw them challenging the Port Regulator’s authority to hear the matter as it was a lease matter and not a tariff matter. Both parties returned to Durban on 20 October 2017 and presented reasons why the Port Regulator did have jurisdiction.
In a victory for ABYC the Port Regulator released it’s findings on 31 January 2018 asserting the Regulator’s rights to hear the matter.
Informal and formal attempts by ABYC to settle the matter after this were ignored, with threats escalating until 17 February when the TNPA released a statement to the media. This statement will be challenged by ABYC who are also seeking urgent hearing in front of the Port Regulator for a final decision on this long outstanding issue.
It is the Yacht Club’s contention that they qualify for a sporting club rental discount from the TNPA and that the continued occupation of the land by the club serves as a focal point for the proposed PE Waterfront along with attracting local, regional, national and international regattas to the city which, in turn provide much needed tourism revenue to the city.
In negotiations stretching back many years ABYC has always contended that they need to pay a fair rental based on their status as a voluntary sporting body, in line with internal TNPA directives and accepted treatment of sporting bodies under the jurisdiction of municipalities.
The long standing uncertainty and this dispute has prejudiced both parties. Admittedly ABYC has the greatest amount to lose as they may lose the ability to pursue the sport of sailing. Access to water is paramount and ABYC has for nearly 60 years been the largest and most active supporter of sailing on the Eastern Cape Coast.
The loss of ABYC could result in:
- Failure of the Marina (the Algoa Bay Sailing Marina is a separate legal entity reliant upon services and land access to provide moorings to local and visiting yachts)
- A further blow to the expectation of the Nelson Mandela Bay public of the removal of the Manganese Ore and Tank Farms and establishment of a PE Waterfront development.
- The death of the sport of Ocean Sailing in the Eastern Cape.
- A blow to Nelson Mandela Bay’s claim as the Watersport Capital.
- The loss of 26 direct jobs
- No more international yachts will make landfall or seek shelter in Port Elizabeth
- Yacht repairs and equipment suppliers will lose revenue
- The surrounding shops and supermarkets will see a decrease in turnover – foreign (and local) yachts have to buy food to last them for months before leaving port.
- Accommodation establishments and tourism product owners will lose an asset bringing foreign feet into our area.
- The knock on effect from the loss of revenue from outside the area is difficult to quantify but will certainly have an incremental effect on our depressed economy
Since 2006 ABYC have seen:
- A steady decline in members and yacht owners as a result of uncertainties surrounding ABYC’s position (from over 600 to 200 today).
- The Port has consistently refused to grant permission to ABYC to host large local, regional, national and international regattas and events such as the Volvo Ocean Race and Extreme Sailing which would bring valuable tourist spend to the city. In the case of international regattas the benefits to the city can be measured in tens of millions of rand.
- Active and enthusiastic members moving their yachts to other ports such as Cape Town and Cape St. Francis.
- The failure of our Youth Programme – security of tenure will ensure that the years of dedication required to shine on the international stage cannot be guaranteed.
- Halting of ABYC’s development programme which under the LoveLife banner introduced hundreds of residents to sailing, the Port and the possibilities.
- Since 2006 ABYC has seen only ONE new yacht be purchased by a member – members do not purchase new yachts as the industrial ‘flavour’ of the port contributes to the rapid depreciation of those assets.
- A steady decline in international sailors to the Port as a result of the ‘secret’ of the Manganese Ore pollution problem being exposed to that community.
- Steady pressure on ABYC operating in ‘marking time mode’ and being forced to open up facilities to non-members in order to ensure that financial obligations to TNPA are met instead of contributing to society by ‘fostering sailing’ and attracting foreign revenue.
- Three offers of settlement were rejected without counter offer at all – the last offer meeting almost all of TNPA’s requests. In addition that offer corrected and increased the TNPA’s measurement of the ‘commercial area’ and allowed for a larger rental.
- ABYC have operated transparently with TNPA and provided TNPA with audited financials.
- TNPA allowed ABYC to submit a tender and then refused said tender on the grounds that ‘ABYC is not in good standing’.
- Refusal by TNPA to grant ABYC a 75% discount as a sporting body
- Short, medium and long term plans being halted as we have no security of tenure.
- The lack of attention and stalling by the authority has contributed in great part to the ‘situation’ becoming untenable and a potential embarrassment to both parties. TNPA is focused on settling the matter in court whilst ABYC’s offers and overtures are rebuffed at every turn.
The TNPA has stated that they will replace the ABYC with another yacht club. What they fail to see is that there are only so many sailors in our region with yachts. If they do evict ABYC and replace ‘with another yacht club’ in effect the TNPA will be dealing with the same people that they have been dealing with all along. A yacht club is not an interchangeable entity like Woolworths, Checkers, Pick ‘n Pay or SPAR.