The value of constitutionally protected heritage and cultural rights should not be “readily devalued” in a contest with wealthy property developers who have substantial funds at their disposal.
These rights, which “have their origin in the birth of ancient societies” and have “subsisted for millennia”, are what the Goringhaicona Khoi-Khoin Indigenous Traditional Council and the Observatory Civic Association (OCA) are seeking to protect in their landmark court battle to halt further construction on ancestral land of the re-development of the River Club on a sacred floodplain.
However US multinational technology company Amazon – the anchor tenant in the R4.6-billion mixed-use development – has indicated there was little latitude for further delays which could be caused by the interdict according to the advocate, Sean Rosenberg representing the Liesbeek Leisure Properties Trust.
“Should an interim interdict be granted pending the final determination of this matter, we know that that would halt construction work for anything between 12 months and 24 months and it could be longer, even in the case of an expedited review.
“It’s almost certain that the project would not go ahead if we were faced with this kind of delay … Given Amazon’s impatience, given Amazon’s indication as assessed by the first respondent (the trust), if Amazon has indicated even directly that it is not going to tolerate further delays that is not hearsay evidence, that is direct evidence of what Amazon’s intentions are.”
Last week the Western Cape high court Deputy Judge President Patricia Goliath heard arguments put forward by the applicants’ senior counsel, advocate Alan Dodson, in an urgent interdict application brought against the Liesbeek Leisure Properties Trust, the City of Cape Town, the Western Cape government and the Western Cape First Nations Collective.
It is pending a review of the environmental and planning decisions for the development by the City of Cape Town and the department of environmental affairs and development planning.
During the proceedings, the judge, Goliath asked why the trust had proceeded with construction when it was aware the matter was highly contested. “This was always a contentious case, there was big public opposition to it,” Dodson responded. “This challenge was coming at them like a freight train and despite the freight train they decided to bash on with construction. They must deal with the consequences.”
Property development companies, he said, are well aware of the risk and costs associated with delays and obtaining necessary approvals. “Those are higher when one has, as here, a site that requires rezoning, departures from land use planning policies, the site has specific ecological heritage qualities and there is a high degree of public opposition to the proposed development.”
Amazon plans to house its new African headquarters at the redeveloped River Club. The project includes residential units, office and retail space, a hotel, a gym, restaurants, and conferencing, schools and events space.
The land at the confluence of the Black and Liesbeek rivers is a sacred space to the Khoi as the site of first anti-colonial resistance by indigenous people to Portuguese intruders and the subsequent dispossession of the Khoi by Dutch colonists who gave land to Dutch free burghers along the Liesbeek River.
Dodson said it was acknowledged in various of the respondents’ heritage impact assessment reports that heritage resources would be negatively affected by the development.
“How then can it be suggested that the intangible heritage that one associates with an associative cultural landscape is not permanently harmed by the transformation of that very landscape from an open green space to one with massive buildings reaching in various instances to 10 storeys, plus the raising of the underlying land?” he added.
It was very difficult, he said, to put a value on intangible and tangible heritage resources because they are “essentially priceless”.
However, Rosenberg disagreed saying the site’s intangible heritage was not threatened by the development and that the prevailing situation, which is subject to the construction that is underway, “represents the partial transformation of an already degraded and transformed site”.
The development, he said, will rehabilitate the canalised course of the Liesbeek River, incorporating among others, an eco-trail, indigenous herb garden, amphitheatre for rituals or performances and a First Nations media centre to serve as sites of memory and living cultural practice and celebration. “What is proposed is immeasurably better than what has ever been there before in recent memory.”
Leslie London, the chairperson of the OCA, noted that as Heritage Western Cape stated in its final comments, “no amount of creating meaning will compensate for the loss of the most important heritage resource on the site: its open, green qualities as a remnant of a landscape of immense intangible historic and cultural heritage significance”.
The City of Cape Town argued there is no reasonable apprehension of irreparable future harm, because if the development proceeds it will only benefit the site’s heritage and environmental resources. “The golf course and parking lot [which the site was used for prior to construction] were never conservation-worthy, and the site has already been changed by months of construction.”
The interdict application fails to take cognisance of the “overwhelming public interest” in the development. “It will create thousands of jobs, introduce billions of rand in investment, facilitate critical transport infrastructure and build affordable housing, all while rehabilitating the Liesbeek River. Considered holistically, granting the interdict will be disastrous for the site’s heritage and for the residents of Cape Town.”
The City’s counsel, Ron Pachke, told the court the project would bring R4.5-billion in direct investment, increase local economic output by R8.55-billion and create 5 239 construction jobs and 19 000 employment opportunities. “The evidence from the developer is that a stop for a period of 18 months to 24 months would kill the development so in practice it would actually be a permanent stop …
“The development collapses, Amazon moves on to somewhere else because it can’t wait to establish its office, the financial viability collapses and none of these advantages ever materialise. It’s not temporary and even if it were, the economic crisis in which Cape Town finds itself now, we can’t afford to wait two years to feed people who are starving and who are in poverty and who need jobs and economic recovery.”
The applicants said the mayor’s contentions regarding the economic ramifications and the public interest are speculative and belied by evidence that Amazon would commission an alternative development in Cape Town in the event that the River Club fails. “The rule of law should not be sacrificed at the altar of speculative economic spinoffs.”
Judgement was reserved.