Head of local government, environmental affairs and development planning Anton Bredell says judgment contains ‘number of errors’
The head of local government, environmental affairs and development planning in the Western Cape has filed an application for leave to appeal a landmark court judgment and order that halted construction of the controversial R4.6-billion River Club mega-development in Observatory, which includes Amazon’s regional headquarters.
Last Friday, Anton Bredell filed his application for leave to appeal Western Cape Deputy Judge President Patricia Goliath’s ruling in favour of the applicants, the Observatory Civic Association (OCA) and the Goringhaicona Khoi Khoin Traditional Council (GKKTC).
Goliath granted an interim interdict temporarily stopping construction on the site, which was part of the Khoi’s first resistance wars against colonial intrusion and of the first appropriation of land by Dutch settlers.
This, she said, was pending the conclusion of “meaningful engagement and consultation with all affected First Nations peoples as stipulated by Heritage Western Cape”. No construction may proceed until a final determination is made regarding the validity of the rezoning and environmental authorisation.
In a statement on Monday, Bredell said his decision to appeal followed a thorough consideration of the judgment and the order, as well as the practical implications.
“There are a number of errors in the judgment and the order, inter alia, is fraught with misunderstandings about the wide public participation processes undertaken,” Bredell said.
“Among the errors identified in the judgment were problems such as the court making a ruling on issues which were not argued by the applicants as part of their case in the first place and the minister is of the view that the court failed to undertake the exercise of weighing the balance of convenience, as it should have in an interdict application.”
The property developers behind the River Club redevelopment project, the Liesbeek Leisure Property Trust, lodged an application to appeal Goliath’s decision last month.
Irreparable harm
In her judgment, Goliath said she was satisfied that all affected First Nations groups were not adequately consulted regarding the development. “I am further satisfied that those who were excluded or not adequately consulted may suffer irreparable harm should the construction continue pending review proceedings.
“The harm to be prevented in the present circumstances is the continuation of the building construction in the event that the review court finds any irregularity in relation to the constitutionally protected rights of indigenous groups,” she said.
In his application, Bredell argued that the court’s order for meaningful engagement and consultation is “incapable of enforcement, vague and confusing. The consultative process envisaged by the order would apparently run in parallel with the prosecution of the review; however … it is not clear as to when the order is to be implemented …
“The order is unclear as to who should conduct the meaningful engagement and consultation.”
The order, Bredell said, does not state which particular groups of First Nations people were allegedly excluded from consultations and is “unclear” as to the precise persons with whom such consultations should be conducted.
“Similarly, the order to the effect that such consultations should be ‘meaningful’ is so vague as to be incapable of enforcement.”
Overriding First Nations people
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.”
Bredell argued that it was apparent that the court failed to undertake the exercise of weighing the balance of convenience as it should have.
“The court simply and erroneously found that whatever the economic, infrastructural and public benefits of the development were, these could ‘never’ override the alleged rights of First Nations people. In any event, there could be no question, in the context of an application, for an interim interdict, of such alleged rights being ‘overridden’,” he said.
These significant benefits for the broader public, he said, include “the investment in the economy and employment opportunities, the provision of inclusionary housing, and the creation of public open space, involving landscaped areas, pathways and river walks replacing the existing private open space”.
“The court erred by not giving proper weight to the consideration that should the interim interdict be granted, this would bring the development activities to a halt, which would probably result in the loss of all the benefits of the development, to the serious prejudice of the wide range of persons who would otherwise have benefited from the development, directly or indirectly.”
In these circumstances, he argued, the losses that would be suffered “would far outweigh any alleged inconvenience”, which the applicants would endure if the interim interdict were not to be granted, and the “effect thereof would be final”.
On Monday, the applicants said Goliath’s interdict was groundbreaking, and they noted that all the respondents had filed for leave to appeal it: “The judgement was historic because it recognised that ‘this matter ultimately concerns the rights of indigenous peoples’ and economic benefits ‘can never override the fundamental rights of the First Nations peoples’.”
“We believe that the arguments made by the respondents are not likely to be successful. The courts did not consider hearsay, did not deprive the respondents of the opportunity to state their case and Judge Goliath’s reasoning is most certainly not misinformed about the public participation process. Far from being ‘extensive’, she identified from the evidence before the court, that the purported consultation was wholly inadequate.”