A view of the land where the new River Club development is located. (David Harrison)
It’s been 14 months since construction started on the contentious River Club development in Observatory, Cape Town. Back then it was a dispute over whose version of the facts was to be believed, and apart from plenty of lawfare and concrete on the River Club site, little has changed, although the fight has got dirtier.
Construction was halted after an interim interdict was granted in March this year by Judge Patricia Goliath in the Western Cape high court, which will remain in place pending meaningful consultation with relevant indigenous groups and a court review of the development’s environmental and land use authorisations (read the full judgement here).
The interdict application was brought by the Observatory Civic Association (OCA) and the Observatory community (through a mandate given to the OCA), the Goringhaicona Khoi Khoin Indigenous Traditional Council (GKKITC), which has the support of 18 indigenous Khoi entities, activist groups, academics and an online petition signed by more than 75 000 people. The OCA and GKKITC are up against the developer, the City of Cape Town, the Western Cape department of environmental affairs and development planning, the First Nations Collective and other individual respondents.
Goliath noted that if construction was allowed to continue, there was a danger of the developers — Liesbeek Leisure Properties Trust (LLPT) in partnership with Zenprop — building themselves into an “impregnable position”, as the development, which is planned to accommodate, among others, the African headquarters for Amazon Web Services, could be completed by the time a review of the development authorisations would be heard.
When Goliath rejected the LLPT’s application for leave to appeal the order, they approached the supreme court of appeal, which referred the case back to the high court. The LLPT resumed work on the site at the end of June, which the OCA and their lawyers view as acting in contempt of court. The LLPT’s lawyers argue that the appeal, heard by the high court on 11 and 12 October, nullifies the high court order. This dispute over the interpretation of Goliath’s order led the OCA to file a contempt of court application.
The developer has claimed pressure, including threats of penalties from Amazon over project delays, and that should it withdraw, the whole development would be scrapped. So how did it get to this?
Faulty rationale
Court documents show the site was not a finalist for Amazon’s office and may not have met its initial requirements. They include an affidavit from Derick Henstra, executive chairperson of DHK Architects. He said the DHK put together a shortlist of five sites for Amazon, including the V&A Waterfront and Canal Walk. The River Club was not one of them because it is not appropriate for such a development, and because “proceeding with that site involved a much higher degree of risk than several of the other qualifying sites”.
The documents include a Request for Information (RFI) that Amazon sent to prospective developers, noting that one of its priorities in choosing a developer and site was ensuring there was “a clear path to regulatory approvals”. At the time (2018), the River Club site was under a two-year provisional protection order issued by Heritage Western Cape, which prevented any construction on the property from taking place.
When the developer’s application process began in 2016, Amazon never formally announced the relocation site of its Cape Town office. This only came to light in 2020, during the environmental authorisation process for the River Club site. A planning report that formed part of the broader environmental application was Amazon’s “preferred site”. The same report noted that Amazon would provide a bus service to “a large portion of staff working at the Amazon campus”, because the nearest public transport was a kilometre away. In the RFI, Amazon stated that it favoured building an office that would have easy transport access.
The City of Cape Town supports the development, because it gets a bridge over the river confluence and the connection of Berkley Road in Maitland to Malta Road in Salt River, as part of the development contributions/charges paid by the developer, to alleviate traffic congestion and facilitate a MyCiti bus rapid transit route. Development charge regulations dictate that these payments be used to upgrade infrastructure to accommodate the effects of an approved development on public infrastructure. It appears the city supported the development prior to the conclusion of the land use application process and in 2018 appealed the protection order issued by Heritage Western Cape. This calls into question the impartiality of the city and the environment and development department as the decision-making authorities that later granted land use approval and environmental authorisation.
Good planning practice dictates that private development should not be structuring public infrastructure investment, but rather the reverse. The planning merits, viability and fiscal sustainability of the proposed MyCiti feeder route along Berkley Road should have been interrogated because it was a core argument for the bridge extension, and consequently an element of the city’s support for the River Club development.
The city (and province) approved a development in a floodplain. This was despite numerous objections from the city’s own environmental management department and independent professionals, and concerns raised about flooding and the inability to manage the broader catchment area. All in exchange for a bridge to serve a MyCiti route with a faulty rationale, increased rates of income and promises of jobs and investment that are overstated.
Environmental issues and flawed processes
The basis for the River Club’s environmental approval has been brought into question by experts. An affidavit by ecologist Michael Mentis details fatal flaws with surface water modelling, biodiversity assessment, an incomplete environmental management programme at the time of approval (in contravention of environmental legislation), and conflicting interests or lack of independence between assessment, project execution and compliance checking by the engineering company hired by the developer to do this work.
The specialist consultant reports are paid for by the developer, and thus there is pressure on consultants to present information in a way that is beneficial to the applicant. Appeals are decided by politicians, so they are inclined to favour revenue generation over other concerns. From the high court affidavits of the former mayor and current MEC, it is clear that the arguments put forward by the developer and their consultants in the environmental and land use applications have been repeated and their veracity has not been independently critiqued.
Other flaws with both approval processes have been raised in court documents. The expert affidavit by the University of Cape Town’s emeritus professor David Dewar argues that the negative effects of the proposed development greatly outweigh any positive benefits and that the approval decisions are not guided by, and are in violation of, the Spatial Planning and Land Use Management Act (2013) principles of spatial sustainability, efficiency and spatial justice. Dewar adds that the proposed development is also in conflict with international best practice.
Concerns have been raised about the manner in which Transnet sold the River Club into private hands for R12-million in 2015. It was then sold on a few months later to the current developer for R100-million, a more than 800% increase in value, but almost the same as the competing valuation of the unsuccessful tenderer for the 75-year lease in 2000. Therefore the prospect of speculation by the developer and their financiers became an inevitable consequence, given the need to recoup such an outlay for the purchase of the land.
The developer claims that legislated environmental and land use application processes were followed and that a group, with anti-development views and who refused participation, is now taking it to court to argue against the process and outcome. But records show that the OCA participated in all these processes from their start in 2016. While Observatory has been the location of a building boom in the past decade, supercharged by generous tax incentives to developers, the OCA is on record as not being against any development on the River Club site, just the overbulked form of the approved development, which is problematic on environmental, heritage and town planning grounds.
A dirty fight
A schism arose among Khoi traditional houses and organisations in December 2019, with the formation of the pro-development First Nations Collective (FNC). FNC protesters have clashed with those opposed to the development outside the high court. During one of these clashes, a reporter spoke to three pro-development demonstrators, who said that they had jobs on the River Club construction site, and had been instructed by bosses or colleagues to join the demonstration. None of them was familiar with the FNC, despite standing behind its banner.
The developer courted and then claimed the support of disputed Khoi leaders (who were initially not consulted, until the developer was ordered to do so by Heritage Western Cape), and has run what appears to be a media campaign, squashing an editorial critical of the development and which was replaced in one week by three articles favourable to the development.
In September this year, Observatory residents found glossy A4 pamphlets in their post boxes warning them that the OCA is standing in the way of a development that would increase their property prices and that the legal action of the OCA and the GKKITC would result in “an influx of “squatters”. The anonymous pamphlet referred to an anonymous website called Best for Obs. The website includes a series of unsubstantiated allegations and attacks on the leaders of the OCA and GKKITC, and some of the articles can be linked to a person who issued a notice urging FNC protestors to gather outside the high court for the July contempt of court hearing.
Heritage significance
The developer, with the support of the FNC, intends to dedicate a small corner of the sprawling development to a “First Nations heritage centre, indigenous garden, heritage eco-trail and garden amphitheatre”, which were not included in the initial development design submitted when the environmental process began in 2016. The FNC argues that the development recognises their heritage.
The River Club site is of national and international heritage significance and in December 2019, more than 20 civic organisations and various indigenous groups announced their combined application for the site’s provincial heritage status, while the national government has identified the area as part of the Khoisan Legacy Project and the National Liberation Heritage Route. The South African Heritage Resources Agency is in the process of grading this site, as part of the broader Two Rivers Urban Park area that it forms an integral part of, for national heritage status. There is significant historical evidence that the barrier erected under the orders of Jan van Riebeeck as the first colonial frontier boundary ran through the middle of the current River Club site.
Given this national heritage significance, why should indigenous people (who still suffer from inequality) and the broader public interest have to settle for a small corner of the site, when the whole site should be publicly owned, with custodianship and financially sustainable management by a community trust of the various Khoe and San peoples who are legally recognised by national government? The site serves as a reminder of land dispossession and forced removal. The River Club site, and the broader TRUP area, should be a living memorial of indigenous heritage, and a site of restorative memory and justice.
While Cape Town competes for global investment, and sustainable development is needed to drive inclusive economic growth and social and spatial transformation, this mixed-use development is in the wrong place. Ultimately, this contentious development exposes fundamental flaws in the current approach to development — development at all costs, with politics, power and money trumping resilience, spatial transformation and a culture of respect.
The high court documents are available here.
Jens Horber is a project officer at Isandla Institute and a town planner. He writes in his personal capacity.
The views expressed are those of the author and do not necessarily reflect the official policy or position of the Mail & Guardian.