Court victory for Amazon’s SA headquarters

Earlier this year, a judgement halted the construction of the R4.6-billion River Club development in Cape Town, which is to house Amazon’s regional headquarters. 

However, the full bench of the Western Cape high court rescinded the judgement and orders after finding it was “induced by fraud”.

On 18 March, Western Cape high court Deputy Judge President Patricia Goliath ruled in favour of the applicants — Observatory Civic Association and the Goringhaicona Khoi Khoin Indigenous Traditional Council (GKKITC) — in granting the interdict that stopped construction. 

This was pending the conclusion of “meaningful engagement and consultation with all affected First Nations peoples as stipulated by Heritage Western Cape”.

However, elders and members of the GKKITC filled a rescission application against the entire judgment and orders on the basis that it was “induced by fraud” in that the Goringhaicona Khoi Khoin had not authorised the litigation, nor was it opposed to the River Club development. The applicants alleged that GKKITC high commissioner Tauriq Jenkins had “committed the fraud in concert with some of its members”.

Judges Elizabeth Baartman, Hayley Slingers and James Lekhuleni found in their favour on Tuesday. 

“I am persuaded that the judgement dated 18 March 2022 was induced by fraud,” said Baartman, who wrote the judgement. “Mr Jenkins misrepresented the first applicant’s constitution and did not have the authorisation to launch the proceedings that culminated in the judgement. He further misrepresented the views of some indigenous leaders without consulting them.”

Goliath acted on those misrepresentations as is clear from the judgement as a whole, she noted. 

“It is axiomatic that the court a quo would not have entertained the application had it been aware that the first applicant had not authorised the litigation.”

It is common cause, said Baartman, that the development site has a rich heritage, having been occupied by indigenous people, used as a grazing place for livestock and having served various social, ecological and sacred functions. 

“The site is also important as the place where indigenous people first encountered and resisted colonialism. The site’s heritage resources are mostly intangible, primarily the product of memory and historical association,” she said, noting how the Black and Liesbeek rivers meet in the area and are accepted as the point where indigenous people crossed and met the Portuguese.

“Sadly, the importance of the site and its valuable heritage significance have largely been ignored as the Liesbeek River has been degraded and indefensibly polluted. 

“In addition, a golf club, a parking lot, a conference centre and restaurants are modern features on the site that do not add to the site’s heritage significance.”

The authorities received an application for the degraded site’s development that envisaged rehabilitation of the Liesbeek river; public open spaces “adorned with indigenous vegetation to replace the golfing greens”; the establishment of a heritage museum and amphitheatre for use of both the First Nation groups and other members of public; and residential accommodation that would include affordable housing and commercial accommodation. 

Significantly, the development would include the construction of public transport infrastructure, Baartman wrote. 

The relevant authorities, after extensive public engagement spanning several years, granted the required authorisation and the development broke ground.

Baartman’s judgement cited how Jenkins, in the interdict application, had stated given the urgency with which the proceedings had been launched, “I have not been able to file a confirmatory letter or affidavits from any of these groups with this affidavit but intend to file those with the supplementary founding affidavit that will be filed in the review application.”

“Mr Jenkins alleged with reference to the people he had consulted, that, ‘despite the narrative disseminated by the First Nations Collective, the leaders of the majority of First Nations organisations have confirmed in conversations with me that they remain strongly opposed to the proposed development’.” 

This spanned the vast majority of the Peninsula Khoi formations including the GKKITC, the Cochoqua Traditional Authority, the Hessequa Traditional Authority under Chief Lanville and the Gainogua Traditional Authority under Kenneth Hoffman and the Komani-san led by Petrus Vaalbooi. 

Baartman noted how Vaalbooi, in his support in the rescission application, said: “I categorically deny that I have ever spoken to him [Jenkins] … I don’t know who this person is and I have never met him.”

Vaalbooi “unequivocally reiterated” his and his people’s “unreserved and unconditional support” for the First Nations Collective, “which we are part of in their desire to develop the River Club land for the social economic and heritage rights and benefit of all the indigenous peoples”.

Baartman said Vaalbooi’s allegations stand uncontested. “However, in oral address, Mr Jenkins alleged that some people have had a change of heart and that his allegations were misinterpreted. That does not answer Mr Vaalbooi’s allegation that he had not met Mr Jenkins prior to the institution of the interdict application. In addition, Goliath … relied on Jenkins’ allegations.”

In support of the rescission application, IXhau-Sakwa Chief Danster said: “I categorically state that I have never had any dealings or discussions with Mr Jenkins or Paramount Chief Aran in respect of this matter and am shocked that my name has been used to lend credibility to something that I have no knowledge of, without my consent.”

Baartman said: “It seems that Mr Jenkins was determined to stop this development at all costs. He therefore fabricated a constitution to suit his objective and betrayed the trust others had in him.

“I do not come to this conclusion lightly. The evidence, Mr Jenkins’ dilatory behaviour and professed ignorance in respect of when he had to file his answering affidavit and his contemptuous absence from the direction hearing the day before the main hearing, support the correctness of this conclusion.” 

The full bench, too, in the same hearing, upheld an appeal by the Liesbeek Leisure Property Trust, the City of Cape Town, the provincial government and the First Nations Collective, against Goliath’s interdict, finding that the Observatory Civic Association and Jenkins did not establish a prima facie right, “even if open to some doubt” of irreparable harm of the River Club development. 

“Had the court a quo undertaken the enquiry, it would have found the many opportunities for growth the development offers the First Nations Groups; the promotion of the site’s heritage value and the opportunities for the unemployed in the province, to name a few examples, far outweighs the unarticulated harms in the respondents’ case … Without a prima facie right, the respondents never got out the starting blocks.”

The Liesbeek Action Campaign said it was “deeply disappointed” by the outcome and was taking further legal advice on how best to proceed. 

“We do not believe the facts put before the court enabled the court to make a fair judgement. Much of Tauriq Jenkins’ affidavit would have put paid to the arguments presented in court, but because his affidavit was late, it could not be accepted in the proceedings.

“We confirm our confidence in High Commissioner Tauriq Jenkins’ authentic leadership and have the evidence he did not mislead the court during the review. 

“It is deeply unfortunate that this evidence could not find a way into the court proceedings.” 

This case, it said, “is about the extraction of profit for a few at the expense of the voice of the majority of people of South Africa, indigenous people protecting their intangible heritage, environmental activists concerned about the impact of an inappropriate development on climate resilience and biodiversity protection and social justice advocates concerned about manipulation of democratic processes of decision-making when it comes to development applications”. 

The ready access to highly paid legal teams “has meant that a civic organisation and an indigenous council have been outmanoeuvred in a play of lawfare”, it said.

The Liesbeek Leisure Property Trust, meanwhile, described the court outcomes as a “massive win for Capetonians”. 

Earlier this year a judgement halted the construction of the R4.6-billion River Club development in Cape Town after finding it was “induced by fraud”. The development was to house Amazon’s regional headquarters. 

A full bench of the Western Cape high court rescinded the interdict and judgement granted earlier this year that halted the construction of the R4.6-billion River Club development in Cape Town after finding it was “induced by fraud”.

On 18 March, Western Cape high court Deputy Judge President Patricia Goliath ruled in favour of the applicants – the Observatory Civic Association and the Goringhaicona Khoi Khoin Indigenous Traditional Council (GKKITC) – in granting the interdict that stopped construction. This was pending the conclusion of “meaningful engagement and consultation with all affected First Nations peoples as stipulated by Heritage Western Cape ”.

However, the Goringhaicona Khoi Khoin, Regent Edmen Michael Hansen, Chief Shiraatz Mohammed and Peter Ludolph sought rescission of the order on the basis that it was “induced by fraud” in that the Goringhaicona Khoi Khoin had not authorised the litigation, nor was it opposed to the River Club development. The applicants alleged that GKKITC High Commissioner Tauriq Jenkins had “committed the fraud in concert with some of its members”.

On Tuesday, Judges Elizabeth Baartman, Hayley Slingers and James Lekhuleni, found in their favour. “I am persuaded that the judgement dated 18 March 2022 was induced by fraud,” said Judge Baartman, who wrote the judgement. “Mr Jenkins misrepresented the first applicant’s constitution and did not have the authorisation to launch the proceedings that culminated in the judgement. He further misrepresented the views of some indigenous leaders without consulting them.”

Judge Goliath acted on those misrepresentations as is clear from the judgement as a whole, she noted. “It is axiomatic that the court a quo would not have entertained the application had it been aware that the first applicant had not authorised the litigation.”

River Club at the heart of the matter

It is common cause, said Judge Baartman, that the development site has a rich heritage, having been occupied by indigenous people, used as a grazing place for livestock and serving various social, ecological and sacred functions. 

“The site is also important as the place where indigenous people first encountered and resisted colonialism. The site’s heritage resources are mostly intangible, primarily the product of memory and historical association,” she said, noting how the Black and Liesbeeck rivers meet in the area and are accepted as the point where indigenous people crossed and met the Portuguese.

“Sadly, the importance of the site and its valuable heritage significance have largely been ignored as the Liesbeek river has been degraded and indefensibly polluted. In addition, a golf club, a parking lot, a conference centre and restaurants are modern features on the site that do not add to the site’s heritage significance.”

The authorities received an application for the degraded site’s development that envisaged rehabilitation of the Liesbeek river, public open spaces “adorned with indigenous vegetation to replace the golfing greens”, the establishment of a heritage museum and amphitheatre for use of both the First Nation groups and other members of public and residential accommodation that would include affordable housing and commercial accommodation. 

Significantly, the development would include the construction of public transport infrastructure, Judge Baartman wrote. The relevant authorities, after extensive public engagement spanning several years, granted the required authorisation and the development, broke ground.

‘Allegations stand uncontested’

Judge Baartman’s judgement cited how Jenkins in the interdict application had stated that given the urgency with which the proceedings had been launched, “I have not been able to file a confirmatory letter or affidavits from any of these groups with this affidavit but intend to file those with the supplementary founding affidavit that will be filed in the review application.”

“Mr Jenkins alleged with reference to the people he had consulted, that, ‘despite the narrative disseminated by the First Nations Collective, the leaders of the majority of First Nations organisations have confirmed in conversations with me that they remain strongly opposed to the proposed development.” 

This spanned the the vast majority of the Peninsula Khoi formations including the GKKITC, the Cochoqua Traditional Authority, the Hessequa Traditional Authority under Chief Lanville and the Gainogua Traditional Authority under Kenneth Hoffman and the Komani-san led by Petrus Vaalbooi. 

Judge Baartman noted how Valbooi in his support in the rescission application, said: “I categorically deny that I have ever spoken to him [Jenkins]… I don’t know who this person is and I have never met him.”

Vaalbooi “unequivocally reiterated” his and his people’s “unreserved and unconditional support” to the First Nations Collective, “which we are part of in their desire to develop the River Club land for the social economic and heritage rights and benefit of all the indigenous peoples”.

Judge Baartman said Vaalbooi’s allegations stand uncontested. “However, in oral address, Mr Jenkins alleged that some people have had a change of heart and that his allegations were misinterpreted. That does not answer Mr Vaalbooi’s allegation that he had not met Mr Jenkins prior to the institution of the interdict application. in addition, Goliath DJP relied on Jenkins’ allegations.”

Stopping the development at all costs

In support of the rescission application, IXhau-Sakwa Chief Danster “categorically state that I have never had any dealings or discussions with Mr Jenkins or Paramount Chief Aran in respect of this matter and am shocked that my name has been used to lend credibility to something that I have no knowledge of without my consent.”

Judge Baartman said: “It seems that Mr Jenkins was determined to stop this development at all costs. He therefore fabricated a constitution to suit his objective and betrayed the trust others had in him.”

“I do not come to this conclusion lightly. The evidence, Mr Jenkins dilatory behaviour and professed ignorance in respect of when he had to file his answering affidavit and his contemptuous absence from the direction hearing the day before the main hearing, support the correctness of this conclusion.” 

The full bench, too, in the same hearing upheld an appeal by the Liesbeek Leisure Property Trust (LLPT), the City of Cape Town, the provincial government and the First Nations Collective, against Judge Goliath’s interdict, finding that the Observatory Civic Association and Jenkins did not establish a prima facie right, “even if open to some doubt” of irreparable harm of the River Club development. 

“Had the court a quo undertaken the enquiry, it would have found the many opportunities for growth the development offers the First Nations Groups; the promotion of the sites heritage value and the opportunities for the unemployed in the province, to name a few examples, far outweighs the unarticulated harms in the respondents’ case … Without a prima facie right, the respondents never got out the starting blocks.”

Play of warfare

The Liesbeek Action Campaign said it is “deeply disappointed” by the outcome and is taking further legal advice on how best to proceed. 

“We do not believe that the facts put before the court enabled the court to make a fair judgement. Much of Tauriq Jenkins’ affidavit would have put paid to the arguments presented in court, but because his affidavit was late, it could not be accepted in the proceedings.

“We confirm our confidence in High Commissioner Tauriq Jenkins’ authentic leadership and have the evidence that he did not mislead the court during the review. It is deeply unfortunate that this evidence could not find a way into the court proceedings …” 

This case, it said, “is about the extraction of profit for a few at the expense of the voice of the majority of people of South Africa, indigenous people protecting their intangible heritage, environmental activists concerned about the impact of an inappropriate development on climate resilience and biodiversity protection and social justice advocates concerned about manipulation of democratic processes of decision-making when it comes to development applications”. 

The ready access to highly-paid legal teams “has meant that a civic organisation and an Indigenous council have been outmanoeuvred in a play of lawfare”, it said.

The LLPT, meanwhile, described the court outcomes as a “massive win for Capetonians”.