Governed under the 1999 National Resources Heritage Act and its subsidiary legislation, the identification and management of South Africa’s heritage resources is a task shared among national, provincial, and local heritage resource authorities.
The South African Heritage Resources Agency (SAHRA), the national heritage resources authority, or any of the provincial heritage authorities are empowered to declare any place, public or private, a national heritage. Citizens may also nominate places for such declaration.
The Act and its subsidiary legislation seeks to protect heritage resources, including archeological objects and burial grounds and graves, in a number of ways. They bar unauthorized activities that may damage or alter known heritage places or objects, protect unidentified heritage resources or objects by subjecting certain types of development activities to independent impact assessments, and require anyone who comes across a heritage resource during the course of development or other activity to report it. They also regulate the export of heritage objects.
With regard to privately owned heritage objects or places, the heritage resources authorities are authorized to work with owners to ensure their preservation and maintenance, issue compulsory repair orders when they fall into disrepair, or expropriate them, if necessary.
I. Legal and Administrative Structure
The primary law governing issues of cultural heritage protection, including matters concerning the protection of graves, sacred places, and recently found artefacts, is the 1999 National Heritage Resources Act and its subsidiary legislation.
The administration of the country’s heritage resources is decentralized. The Act created a three-tiered system for the management of heritage resources. It established a national agency, the South African Heritage Resources Agency (SAHRA), the object of which is to “co-ordinate the identification and management of the national estate.” SAHRA has various functions, powers, and duties. Among them is the role of coordinating and managing “the national estate by all agencies of the State and other bodies and monitor[ing] their activities to ensure that they comply with national principles, standards and policy for heritage resources management.” Part of SAHRA’s obligations is the requirement to “compile and maintain an inventory of the national estate” in a database. In addition to SAHRA, the Act provides for the formation of provincial and local-level heritage resources authorities responsible for provincial and local heritage resources management.
II. National Estate
The Act in its preamble indicates that it “aims to promote good management of the national estate.” Heritage resources that ”are of cultural significance or other special value for the present community and for future generations” constitute part of the country’s national estate and are managed by the relevant heritage resources authorities. These include
- historical settlements and townships;
- archaeological and paleontological sites;
- ancestral graves, including royal graves and graves of traditional leaders, historical graves and cemeteries, and other human remains; and
- movable objects such as archaeological and paleontological objects found in South African waters or land.
Any place or object may be deemed a national estate if it has “cultural significance or special value” for any of various reasons, including due to “its strong or special association with a particular community or cultural group for social, cultural or spiritual reasons.”
The Act establishes a grading system for places and objects that are part of the country’s national estate. It does this by creating three categories of heritage resources:
(a) Grade I: Heritage resources with qualities so exceptional that they are of special national significance;
(b) Grade II: Heritage resources which, although forming part of the national estate, can be considered to have special qualities which make them significant within the context of a province or a region; and
(c) Grade III: Other heritage resources worthy of conservation[.]
It is up to SAHRA to establish a grading system and heritage resource assessment criteria, “which must be used by [all relevant authorities] to assess the intrinsic, comparative and contextual significance of a heritage resource and the relative benefits and costs of its protection.”
National, provincial, and local authorities share the responsibility of managing heritage resources on the basis of the grades they are assigned. SAHRA is responsible “for the identification and management of Grade I heritage resources and heritage resources in accordance with the applicable provisions of [the National Heritage Resources Act].” According to the Act, “[a] provincial heritage resources authority is responsible for the identification and management of Grade II heritage resources and heritage resources which are deemed to be a provincial competence” under the Act. Similarly, local heritage resources authorities are “responsible for the identification and management of Grade III heritage resources and heritage resources which are deemed to fall within their competence” under the Act.
SAHRA or a relevant provincial heritage authority may declare any place, public or private, a national heritage. Before doing so, the Authority must notify the owner, mortgage holder, occupier, and any other concerned person of its plans, accord him or her ample time (at least two months) to challenge the declaration, and consider all submissions before making its decision.
Although it is one of the primary functions/obligations of SAHRA and the provincial heritage resources authorities to identify places worthy of protection under the Act, anyone can nominate a place to be declared a national heritage site or a provincial heritage resource.
Unless done with a permit from the relevant heritage resource authority, it is an offense to “destroy, damage, deface, excavate, alter, remove from its original position, subdivide or change the planning status of any heritage site.”
III. Protection and Managment of Heritage Resources
A. Archeological Objects
The Act requires that anyone who comes across an archeological object “in the course of development of agricultural activity must immediately report” it to the responsible authority, which in this case is the relevant provincial heritage resources authority unless the object is of a grade that puts its management under the jurisdiction of SAHRA. An “archeological” object includes
(a) material remains resulting from human activity which are in a state of disuse and are in or on land and which are older than 100 years, including artefacts [sic], human and hominid remains and artificial features and structures; [and]
(b) rock art, being any form of painting, engraving or other graphic representation on a fixed rock surface or loose rock or stone, which was executed by human agency and which is older than 100 years, including any area within 10m of such representation[.]
The Act adopts a broad definition of the term “development,” including a list of examples of what development work possibly entails:
any physical intervention, excavation, or action, other than those caused by natural forces, which may in the opinion of a heritage authority in any way result in a change to the nature, appearance or physical nature of a place, or influence its stability and future well-being, including—
(a) construction, alteration, demolition, removal or change of use of a place or a structure at a place;
(b) carrying out any works on or over or under a place;
(c) subdivision or consolidation of land comprising, a place, including the
(d) structures or airspace of a place;
(e) constructing or putting up for display signs or hoardings;
(f) any change to the natural or existing condition or topography of land; and
(g) any removal or destruction of trees, or removal of vegetation or topsoil.
The Act bars anyone who does not possess a permit issued by the relevant authority from engaging in activities that would
(a) destroy, damage, excavate, alter, deface or otherwise disturb any archaeological . . . site . . .;
(b) destroy, damage, excavate, remove from its original position, collect or own any archaeological . . . material or object . . .;
(c) trade in, sell for private gain, export or attempt to export from the Republic any category of archaeological . . . material or object . . . ; or
(d) bring onto or use at an archaeological . . . site any excavation equipment or any equipment which assist in the detection or recovery of metals or archaeological . . . material or objects . . . .
The Act accords heritage resources authorities investigative and administrative powers to deal with instances where they have “reasonable cause to believe that any activity or development which will destroy, damage or alter” an archaeological site and for which no permit has been issued is underway. In these instances, a heritage authority is authorized to investigate the matter; issue a cease order on the person involved in the activity in question; assist the person in mitigation efforts, if necessary; and recover the cost of its investigation from the person.
B. Burial Grounds and Graves
SAHRA is required to “identify and record” graves that it considers to be of cultural significance and take the necessary steps for their conservation. The Act bars anyone who has not been issued a permit by SAHRA or a relevant provincial heritage resource authority from engaging in an activity that would “destroy, damage, alter, exhume, remove from its original position or otherwise disturb any grave or burial ground older than 60 years which is situated outside a formal cemetery administered by a local authority.”
The Act accords communities that have an interest in the burial ground or grave at issue a say. It does this by barring SAHRA or the relevant provincial heritage authority from issuing a permit allowing a person to engage in any such activity unless it is satisfied that the applicant has
(a) made a concerted effort to contact and consult communities and individuals who by tradition have an interest in such grave or burial ground; and
(b) reached agreements with such communities and individuals regarding the future of such grave or burial ground.
A person who, during the course of development activity, discovers a previously unknown location of a grave “must immediately cease such activity and report the discovery to the responsible heritage resources authority.” The Authority must then, with the assistance of the South African Police Service,
(a) carry out an investigation for the purpose of obtaining information on whether or not such grave is protected in terms of this Act or is of significance to any community; and
(b) if such grave is protected or is of significance, assist any person who or community which is a direct descendant to make arrangements for the exhumation and re-interment of the contents of such grave or, in the absence of such person or community, make any such arrangements as it deems fit.
C. Certain Development Activities
Anyone interested in engaging in certain types of development work is required to “notify the responsible heritage resources authority and furnish it with details regarding the location, nature and extent of the proposed development.” Work subject to the notification requirements includes
(a) the construction of a road, wall, powerline, pipeline, canal or other similar form of linear development or barrier exceeding 300m in length;
(b) the construction of a bridge or similar structure exceeding 50 m in length;
(c) any development or other activity which will change the character of a site—
(i) exceeding 5 000 m2 in extent; or
(ii) involving three or more existing erven or subdivisions thereof; or
(iii) involving three or more erven or divisions thereof which have been
(iv) consolidated within the past five years; or
(v) the costs of which will exceed a sum set in terms of regulations by SAHRA or a provincial heritage resources authority;
(d) the re-zoning of a site exceeding 10 000 m2 in extent; or
(e) any other category of development provided for in regulations by SAHRA or a provincial heritage resources authority[.]
If the heritage resources authority has reason to believe that the activity will impact heritage resources, it is required to get the person to submit an impact assessment report to be prepared by someone approved by the Authority. The Report must, among others, include information regarding whether the activity will have an adverse impact on heritage resources and plans for mitigation of such adverse effects. After having received the Report, the Authority would then make a decision (after consulting SAHRA in the case of provincial authorities) on
(a) whether or not the development may proceed;
(b) any limitations or conditions to be applied to the development;
(c) what general protections in terms of this Act apply, and what formal protections may be applied, to such heritage resources;
(d) whether compensatory action is required in respect of any heritage resources damaged or destroyed as a result of the development; and
(e) whether the appointment of specialists is required as a condition of approval of the proposal.
The rules described in this section do not apply if the heritage resources already under the protection of SAHRA and to projects the development of which already requires the submission of a heritage resources impact report.
D. Export of Heritage Objects
One of the objectives of the National Heritage Resources Act is to “control the export of nationally significant heritage objects.” It does this by allowing SAHRA to identify and declare items as heritage objects and regulate their export. SAHRA may declare as a national object “[a]n 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.” These include objects that have cultural or historical significance and “objects to which oral traditions are attached and which are associated with living heritage.”
In 2002, SAHRA issued a list of objects “to be types of objects that are deemed protected in terms of the National Heritage Resources Act and for which a permit in terms of the said Act is required for export from the country.” These include
1. Any archaeological artefact, palaeontological and rare geological specimens and meteorites found in South Africa and its territorial waters and maritime cultural zone;
2. Antiquities such as coins, utensils, pottery, jewellery, seals, weapons (including firearms) tools and inscriptions that have been in South Africa for more than 100 years;
3. . . .
4. South African ethnographic art and objects;
5. . . .
6. South African items of artistic interest that have been in South Africa for 50 years or more, including –
(a) paintings and drawings produced by hand on and in any material;
(b) original prints, posters and photographs, as the media for creative activity;
(c) original artistic assemblages and montages in any material;
(d) works of statuary art and sculpture in general;
(e) works of applied art in such materials as glass, ceramics, metal and wood; and
(f) objects of ritualistic and symbolic significance and personal adornment such as beads, leather or metalwork;
7. . . .
8. . . .
9. . . .
10. South African furniture, tapestries, carpets, items of dress and musical instruments older than 100 years; . . .
11. . . .
12. The above exclude any object made by any living person.
Anyone who wishes to export from South Africa any of the above-listed types of heritage s must obtain a permit from SAHRA.
E. Cooperation, Compulsory Repair Order, and Expropriation
A heritage resource authority appears to have several tools to ensure the protection of a heritage site not under its possession. One way to do this is through an agreement with the owner of the site for preserving and maintaining a heritage site. The Authority may enter into an agreement to
(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.
The Authority also has the power to issue what is known as a compulsory repair order in certain circumstances. The Authority may order the owner of a heritage site “to repair or maintain” the site to its satisfaction and within a reasonable, specified timeframe if it determines that the site
(a) has been allowed to fall into disrepair for the purpose of—
(i) effecting or enabling its destruction or demolition;
(ii) enabling the development of the designated land; or
(iii) enabling the development of any land adjoining the designated land; or
(b) is neglected to such an extent that it will lose its potential for conservation[.]
The order cannot be for work beyond that which “is necessary to prevent any further deterioration in the condition of the place.” If the owner fails to follow the order, the Authority may do the repairs itself and recoup the cost from the owner afterwards.
Another tool available to the Authority is purchase or expropriation. The Minister responsible for arts and culture may, “on the advice of SAHRA and after consultation with the Minister of Finance, purchase or, subject to compensation, expropriate any property for conservation or any other purpose under this Act if that purpose is a public purpose or is in the public interest.” This process is governed under the 1975 Expropriation Act and the 1996 Constitution.
Violations of different provisions of the National Heritage Resources Act are offenses subject to fines and custodial sentences. For instance, a person who “destroy[s], damage[s], deface[s], excavate[s], alter[s], remove[s] from its original position, subdivide[s] or change[s] the planning status of any heritage site without a permit” commits a crime, on conviction, punishable by a fine and/or up to five years in prison. Exporting or attempting to export any heritage object without a SAHRA-issued permit is also an offense subject to the same penalties. Anyone who “destroy[s], excavates[s], alter[s], deface[s]” an archeological or paleontological site commits a crime, on conviction, punishable by a fine and/or a custodial sentence not exceeding three years. A similar act involving a burial ground or grave is punishable by a fine and/or a prison term of up to six months.
Prepared by Hanibal Goitom
Chief, FCIL I
 National Heritage Resources Act 25 of 1999, 10 Statutes of the Republic of South Africa (updated through 2016), a more current version of the legislation is available on the University of Pretoria website, at http://www.lawsofsouthafrica.up.ac.za/index.php/browse/national-monuments-and-archives/ national-heritage-resources-act-25-of-1999/act/25-of-1999-national-heritages-resources-act-1-apr-2000-to-date-pdf/download, archived at https://perma.cc/H5KG-KR3H.
 National Heritage Resources Act (25 of 1999) Regulations (commencement Apr. 1, 2000), available at http://www.lawsofsouthafrica.up.ac.za/index.php/browse/national-monuments-and-archives/ national-heritage-resources-act-25-of-1999/regulations-and-notices/25-of-1999-national-heritages-resources-act-regs-gnr-323-7-apr-2000-to-date-pdf/download, archived at https://perma.cc/75GS-JELY; Regulations in Accordance with the Provisions of Section 9 of the National Heritage [sic] Resources Act No. 25 of 1999 (Commencement Mar. 17, 2017), available at http://www.lawsofsouthafrica.up.ac.za/index.php/browse/ national-monuments-and-archives/national-heritage-resources-act-25-of-1999/ regulations-and-notices/25-of-1999-national-heritages-resources-act-regs-genn-218-17-mar-2017-to-date-pdf/download, archived at https://perma.cc/UYS7-ESF9; South African Heritage Resources Agency (SAHRA) Permit Regulations (Commencement July 8, 2005), available at http://www.lawsofsouthafrica.up.ac.za/index.php/browse/national-monuments-and-archives/national-heritage-resources-act-25-of-1999/regulations-and-notices/25-of-1999-national-heritages-resources-act-regs-gnr-548-8-jul-2005-to-date-pdf/download, archived at https://perma.cc/9PL2-QFN3; Schedule of Fees for Permit Applications Made to the South African Heritage Resources Agency (SAHRA) (Commencement May 5, 2006), available at http://www.lawsofsouthafrica.up.ac.za/index.php/browse/national-monuments-and-archives/national-heritage-resources-act-25-of-1999/regulations-and-notices/25-of-1999-national-heritages-resources-act-regs-gn-418-5-may-2006-to-date-pdf/download, archived at https://perma.cc/KYJ2-SLCY; Declaration of Types of Heritage Objects, General Notice 1512, Government Gazette No. 24116 (Dec. 6, 2002), available at http://www.lawsofsouthafrica.up.ac.za/index.php/browse/national-monuments-and-archives/ national-heritage-resources-act-25-of-1999/regulations-and-notices/25-of-1999-national-heritages-resources-act-regs-gn-1512-6-dec-2002-to-date-pdf/download, archived at https://perma.cc/2T6N-RFEL.
 National Heritage Resources Act § 11.
 Id. § 13.
 Id. § 39.
 Id. §§ 4, 8 & 23.
 Id. § 3.
 Id. § 7.
 Id. § 8.
 Id. § 27.
 Id. § 35.
 Id. § 2.
 Id. § 35.
 Id. § 36.
 Id. § 38.
 Id. Preamble.
 Id. § 32.
 Declaration of Types of Heritage Objects, Government Gazette No. 24116 (Dec. 6, 2002).
 National Heritage Resources Act § 32.
 Id. § 27.
 Id. § 45.
 Id.; Expropriation Act 63 of 1975 (Jan. 1, 1977), available on the Pretoria University website, at http://www. lawsofsouthafrica.up.ac.za/index.php/browse/land/expropriation-act-63-of-1975/act/63-of-1975-exprop riation-act-1-apr-1994-to-date-pdf/download, archived at https://perma.cc/3B37-2HD5; S. Afr. Const. 1996, § 5, available on the South Africa government portal online, at https://www.gov.za/documents/consti tution/chapter-2-bill-rights#25, archived at https://perma.cc/G9ER-6NGW.
 National Heritage Resources Act §§ 27 & 51.
 Id. §§ 32 & 51.
 Id. §§ 35 & 51.
 Id. §§ 36 & 51.
Last Updated: 12/30/2020