The Goringhaicona Khoi Khoin Traditional Council and Observatory Civic Association says that application for leave to appeal interim interdict is attempt to save face
An interim interdict halting ongoing construction for the R4.6-billion redevelopment of the River Club on a sacred and environmentally sensitive site in Cape Town is “job killing”, according to the property developers behind the controversial project.
US multinational technology company Amazon is the anchor tenant in the mixed-use development at the confluence of the Black and Liesbeek rivers in Observatory.
On Monday, the Liesbeek Leisure Properties Trust (LLPT) filed its application for leave to appeal against a landmark judgment and order handed down by Western Cape high court Deputy Judge President Patricia Goliath last month.
Goliath ruled in favour of the applicants, the Observatory Civic Association (OCA) and the Goringhaicona Khoi Khoin Traditional Council (GKKTC), stopping construction on the site, which was part of the Khoi’s first resistance wars against colonial intrusion and the site of the first appropriation of land by Dutch settlers.
This is pending the “conclusion of meaningful engagement and consultation with all affected First Nations Peoples as envisaged in the interim and final comments of Heritage Western Cape [HWC]”. No construction may proceed until a final determination is made regarding the validity of the rezoning and environmental authorisation, Goliath ordered.
‘Job losses’
James Tannenberger, a trustee and spokesperson for the Liesbeek Leisure Properties Trust, said “it is in the interests of justice” that leave to appeal be granted, “where a decision such as this is final in effect and in substance” and where the “harm which flows from it is serious, immediate, ongoing and irreparable”.
“If the order remains operable, 6 000 direct and 19 000 indirect jobs will be lost [including the 750 construction workers who were told to go home when the ruling was delivered] … This, in turn, will mean that the Cape Peninsula Khoi and their future generations will be deprived of the only feasible prospect of manifesting their intangible cultural heritage associated with the area.”
This would endanger transmission of their cultural legacy, including the establishment of a heritage, cultural and media centre in the redevelopment, which will be operated and managed by the First Nations, he said.
The broader community will lose the “significant” socioeconomic and environmental benefits, including the provision of developer-subsidised inclusionary housing, major upgrades to surrounding roads and safe and accessible green parks and gardens that will be open to the public.
In a joint statement issued in response on Wednesday, the Observatory Civic Association and the Goringhaicona Khoi Khoin Traditional Council, said Goliath had granted an interim interdict stopping construction until a court has decided whether or not the authorisations for the development were granted lawfully.
“It is not a final interdict, and its effects are not final, and consequently it is not appealable.” The Liesbeek Leisure Properties Trust’s application, they said, is “part of an orchestrated PR campaign by the developer designed to save face”.
Goliath’s judgment
In her judgment Goliath said the court’s order “must not be construed as a criticism against the development” but that the core consideration is the issue of proper and meaningful consultation with all affected First Nations people.
She noted how the consultation process involving the Liesbeek Leisure Properties Trust’s consultant, Rudewaan Arendse, of Afsmas Solutions, on the Khoi narrative “was wholly inadequate”.
“It is evident from the papers that Arendse’s report created tensions and deep divisions in at least two First Nations Groups …the perception of [Tauriq] Jenkins [the high commissioner of the GKKTC] that Arendse was biased was reasonable in the circumstances.”
The Liesbeek Leisure Properties Trust, supported by its heritage consultants and Arendse, had sought to persuade the court that the proposed development is supported by the majority of First Nations Groups through the First Nations Collective, which supports the redevelopment project.
“Jenkins contested this assertion and alerted the court to the existence of other First Nations Groups and traditional authorities who are opposed to the development and may have an interest in this matter.”
Goliath was satisfied that all affected First Nations Groups were not adequately consulted and that those who were excluded “may suffer irreparable harm” should the construction continue pending review proceedings.
“The matter ultimately concerns the rights of indigenous people. 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.”
The Two Rivers Urban Park is “therefore central to the tangible and intangible cultural heritage of the First Nations people … The fundamental right to culture and heritage of indigenous groups, more particularly the Khoi and San First Nations peoples are under threat in the absence of proper consultation,” Goliath said.
‘Court erred’
Tannenberger said Jenkins’ allegations that Arendse was a member of the First Nations Collective is “completely false. Neither is he a beneficiary of any benefits that the First Nations will derive from the development, nor has he benefited from any procurements related to the River Club.”
In their court papers, the Liesbeek Leisure Properties Trust said if the order remains operable, “the crippling financial liabilities” that it will suffer “make it all but certain that the development as planned and approved will not go ahead”.
Tannenberger alleged the applicants, Jenkins and Professor Leslie London, the chairperson of the Observatory Civic Association, have “no legitimate claim” over the intangible heritage of the broader Two Rivers area, of which the River Club comprises 5%. “However, both of them were provided with an opportunity to submit their comments … during the lengthy development approval process. Their comments were responded to and considered by the relevant authorities, who approved the project.”
Spurious claims
The Observatory Civic Association and the Goringhaicona Khoi Khoin Traditional Council said the Liesbeek Leisure Properties Trust’s repeat of “spurious claims” against the Goringhaicona, on matters which have been dealt with in court already, are an attempt to smear its high commissioner.
“It is not the first time that the developer, with an all-white board of trustees/directors, arrogates to itself the entitlement to decide who is a legitimate indigenous traditional entity. Let the courts decide if this arrogant and colonial attitude of diminishing the Goringhaicona has any credence as evidence.
“Let the courts examine whether the in-filling the Old Liesbeek Channel, and the devastation of the floodplain are heritage and environmental crimes; let the courts examine whether consent can be forced on indigenous peoples. We believe the courts will confirm that meaningful consultation cannot be achieved with threats.”
The Liesbeek Leisure Properties Trust, they said, chose to pursue its development in full knowledge that it would end up in court and “the judge confirmed that they willingly took the risk on themselves”.
“When a competent heritage authority for the province [HWC] declares a decision unlawful, it should give a developer pause for thought before wilfully proceeding. Rather than defer to the court’s review, the developers sought to build themselves into an ‘impregnable position’, a situation which the judge ruled could not be permitted to dictate who would suffer irreparable harm.”
On the Liesbeek Leisure Properties Trust’s claims that thousands of jobs will be lost, the Observatory Civic Association and the Goringhaicona Khoi Khoin Traditional Council said: “These jobs could and should have been created if proper decision-making processes had been followed, if Amazon had chosen any of the five other appropriate sites for their HQ and if they had not leapfrogged the River Club site to the top of the list at the last minute.
“Had any one of those other suitable sites been chosen, Amazon’s HQ would be built by now, creating thousands of jobs, but in a development that was appropriately placed – away from a sensitive floodplain and sacred site.”