Bo-Kaap ‘fights off capture’

Residents oppose development in the Bo-Kaap because it is making property unaffordable and threatening their heritage. (David Harrison/M&G)

Residents oppose development in the Bo-Kaap because it is making property unaffordable and threatening their heritage. (David Harrison/M&G)

The Bo-Kaap community, led by the Bo-Kaap Civic and Ratepayers Association (Bokcra), has taken property development Blok to task for its association with a youth group in the suburb.

The company launched a court application in November to interdict anyone from disrupting construction work at its retail and residential development at 40 Lion Street. It was the second time in a year that Blok had applied to interdict disruption after protests to stop work on the construction site.

In May 2017, young activists formed the Bo-Kaap Youth Movement (BKYM) to fight development that residents believed threatened their heritage and pushed property rates beyond what many can afford. For a while BKYM and Bokcra seemed to be working together.

In court papers answering Blok’s interdict application, Bokcra stated that it believes BKYM, now a registered nonprofit company, is no longer a legitimate representative of the Bo-Kaap community and has been co-opted through its negotiations with Blok and the company’s legal team at Norton Rose Fulbright.
The papers were filed on January 21.

In his answering affidavit, Bokcra chairperson Osman Shabodien accused Norton Rose and Blok of helping BKYM to register as a nonprofit.

“What the deponent [Blok] does not disclose is the fact that the Bo-Kaap Youth is a nonprofit company which was incorporated by its own attorney, Norton Rose Fulbright, for the apparent purpose of creating a structure which could then be portrayed as having legitimacy and standing within the Bo-Kaap community. In truth and in fact, the Bo-Kaap Youth [Movement] has three directors and it has never had a mandate to speak for the community.”

BKYM did not respond to questions from the Mail & Guardian but its chairperson, Adnaan Oesman, after reports of its negotiations with Blok, told IOL: “We are not saying we want to work with the developers. Do we keep fighting them? We can’t stop all the plans. That is not the solution.”

In answering papers, Blok denied Shabodien’s assertions. “Again it appears that the eighth respondent [Bokcra] is using this forum as a platform from which to gratuitously attack BKYM. BKYM is not the applicant’s [Blok’s] partner. BKYM has sought to address the real issues affecting the Bo-Kaap and the development of 40onl [40 on Lion Street] in a constructive manner,” Jacques van Embden, Blok’s managing director, said in court papers.

Shabodien included in his papers an email thread between Norton Rose and the Human Rights Commission from July, to illustrate the tension in the process.

A court order after the first interdict application by Blok last year stated: “A meeting will take place between the applicant and the Bo-Kaap’s representative Sheikh Dawood Tereblanche and the Human Rights Commission within 10 days of this order to facilitate the management of the construction process.”

But, in an email in July 2018, Norton Rose wrote to the commission saying it had received support from BKYM, Bo-Kaap Rise, Sheikh Tereblanche and the Bo-Kaap neighbourhood watch to chair a mediation meeting, which “the stakeholders” said “should be combined” with the meeting specified in the court order.

“You are correct that the mediation process is separate from that of the court proceedings but the stakeholders have requested that they be combined,” Lauren Fine, director at Norton Rose, told the commission.

Norton Rose had also said it would chair the meeting without acting as legal representation for any party.

The commission asked the Bo-Kaap organisations and Tereblanche whether they had agreed to Norton Rose being mediators in terms of the court order. All the organisations, apart from the BKYM whose correspondence was not attached, said the law firm’s account was false. Tereblanche said he had spoken to Norton Rose but had said he would only follow what the commission recommended and take his mandate from the Bo-Kaap community.

Norton Rose, in an email to Tereblanche, countered this. “When you met with Muneeb [Gambeno, a Norton Rose attorney] you requested that the meeting be moved to today and that NRF [Norton Rose Fulbright] chair the meeting so that legal representation are not present,” Fine wrote.

The law firm also responded to the neighbourhood watch by email to say that a member of the organisation had agreed to “engage as part of the mediation process”. The neighbourhood watch maintained it did not want Norton Rose to facilitate the meeting specified in the court order.

The commission also delivered a response to the law firm in an email. The commission’s provincial manger, Lloyd Lotz, said: “As you correctly point out, you were not present in court and accordingly your interpretation of the order is not informed by what transpired at court. The commission was in fact present at court and engaged with the court and in addition witnessed the engagement between Sheikh Ter[e]blanche and the court.”

Blok withdrew its interdict in July and the interim court order for a meeting fell away. In seeking a second interdict, the company said there was no wrongdoing in the process. “I note that the eighth respondent contends that the Bo-Kaap Community did not reach out to the applicant. This is denied,” Van Embden said in his affidavit. “The remainder of the allegations again appear to be made solely for the purpose of attacking the integrity of the BKYM and the applicant. The allegations are entirely irrelevant to the determination of this application.”

Fowzia Achmat, Bokcra’s vice-chairperson, believes the community has fought off what they believe was an attempt at capture. “The community is not captured. A group in the community is captured.”

Ra'eesa Pather

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