River Club property developers continue construction despite interim interdict

The strategy of the Liesbeek Leisure Properties Trust (LLPT) to forge ahead with construction in the controversial R4.6-billion redevelopment of the River Club site in Observatory, Cape Town, is an “attempt to build themselves into an impregnable position despite the law”. 

This is the contention of the Observatory Civic Association (OCA) and the Goringhaicona Khoi Khoin Indigenous Traditional Council (GKKITC), which, on 8 July, served the LLPT and five of its trustees with contempt of court papers for defying an interim interdict granted to them prohibiting further construction at the River Club. US multinational technology company Amazon is the anchor tenant in the mixed-use development at the confluence of the Black and Liesbeek rivers.

In a landmark judgment in March, Western Cape Deputy Judge President Patricia Goliath granted the interim interdict halting construction on the site. This, she said, was pending the conclusion of “meaningful engagement and consultation with all affected First Nations peoples as stipulated by Heritage Western Cape”. She ruled that no construction may proceed until a final determination is made regarding the validity of the rezoning and environmental authorisation in a judicial review.

Goliath said the fact that the development has substantial economic, infrastructural and public benefits can never override the fundamental rights of First Nations people. “First Nations peoples have a deep sacred linkage to the development site through lineage, oral history, past history and narratives, indiginous knowledge systems, living heritage and collective memory.”

‘Not in contravention of the law’

The LLPT’s view remains that the re-commencement of work is not in contravention of the law.

“The legal advice provided to LLPT is that the judgment and orders handed down by … Deputy Judge President Goliath in Part A of the High Court matter are final in effect and operation and hence suspended pending the final determination of LLPT’s application for leave to appeal in the supreme court of appeal,” it said, adding that he environmental rehabilitation work being undertaken on the riverine corridors adjacent to the property falls outside the scope of the order.

The contempt of court matter was due to be urgently heard at the high court in the Western Cape on Tuesday, but was postponed until 27 July. Outside court, protests were held by First Nations groups campaigning for and against the project, which reportedly turned into clashes.

On Wednesday, the Observatory Civic Organisation and Goringhaicona Khoi Khoin Indigenous Traditional Council said the LLPT had served them with a 133-page answering affidavit in response to the proceedings on Tuesday morning. “The LLPT claimed that they needed more time to file further affidavits and consequently the matter should not be heard in urgent court [on Tuesday],” they said.

“However, their papers revealed that they had planned to commence construction ever since they received an opinion from counsel dated 4 May 2022 stating that the interim interdict prohibiting construction would be suspended if they lodged an appeal with the supreme court of appeal.

“We disagree. Deputy Judge President Goliath’s interim interdict ordering the LLPT to stop construction until the validity of its authorisations had been determined, is perfectly clear. 

This interim order does not become ‘final in effect’ (and consequently suspended by an appeal) simply because the judge also made an order that a consultation process with excluded First Nations groups should be undertaken.”

To avoid the risk of the matter being struck off the roll and being delayed for months, if the presiding judge did not have time to properly consider the LLPT’s papers on Tuesday, their legal team agreed to the matter being set down for hearing on 27 July. “On that day, the LLPT will be required to show why the court should not grant the orders stopping construction and finding the LLPT in contempt of court,” they said.

‘Hubristic arrogance’

The re-commencement of full-scale development by LLPT is an exhibition of “hubristic arrogance”, Tauriq Jenkins, the high commissioner of the GKKITC, told the Mail & Guardian. “It would appear that they think that they can treat our legal system in the same way they have destroyed parts of the old Liesbeek Channel.

“They ought to be firmly reminded that the court is not their private stormwater ditch. As was demonstrated at the steps of the high court, we are witnessing the re-manifestation of unleashed coloniality,” he said. “Wielding an abiding local force to afflict mayhem in order to buffer landowners from their own accountability is nothing new, we have been here before. It was also clear how the appearance of consent is being manufactured.”

The LLPT said this week the Observatory Civic Organisation and the Goringhaicona Khoi Khoin Indigenous Traditional Council had last Friday filed a court application requesting the court to halt the restart of work that had recently recommenced at the River Club site, with 380 workers returning and being able to earn an income.

“LLPT has had one working day to consider this application. For the reasons that will be set out in its opposing papers, it will be asking the court to dismiss the application,” it said.

It denied being in contempt of court, arguing there was no basis for this allegation and adding: “It will now be for the Western Cape high court to decide on the matter.” 

At this stage, the LLPT said it could confirm that the interdict “is not proceeding and the main matter will be heard on 27 July. The LLPT is still awaiting the court order”.

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Sheree Bega
Sheree Bega is an environment reporter at the Mail & Guardian.

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