The Liesbeek Leisure Properties Trust (LLPT) has filed its urgent application for leave to appeal in the Supreme Court of Appeal (SCA) in Bloemfontein against the whole of Western Cape Deputy Judge President Goliath’s judgment and order which interdicted construction of the R4.6 billion River Club redevelopment in Observatory, Cape Town.
The Western Cape Government, the City of Cape Town and the Western Cape First Nations Collective, which is made up of the majority of Khoi and San leaders in the Cape Peninsula (including the Gorinhaiqua who are recognised as the indigenous tribe that have historical association to the Two Rivers landscape - of which the River Club property forms 5%), have also filed appeals against the interdict in the SCA.
All these parties have shown in their applications to the SCA that the interdict has had the effect of immediately preventing the realisation of the substantial benefits of the development. The City mayor stated that “the residents of Cape cannot afford a delay in the realisation of these benefits, which are critical to reinvigorating the City’s economy in the wake of the Covid 19 ravages”.
The LLPT’s application emphasizes that when granting this order, which has halted construction on the site since the 18th of March 2022, the Court wholly failed to apply the requirements of the balance of convenience test for interdicts, properly or at all.
On the one hand, there are very significant economic, social, heritage and environmental benefits that stand to be lost if the interdict is not reversed on appeal. They include the immediate and severe consequences to the thousands of construction workers who are now without work, as well as the risk of loss of thousands of other work opportunities the development stands to create.
The Cape Peninsula Khoi and San groups are also at risk of losing one of the few opportunities to memorialise and celebrate their cultural heritage associated with the broader area. The River Club redevelopment seeks to memorialise and celebrate this indigenous pre-colonial culture through the establishment of a Heritage, Cultural and Media Centre operated by the First Nations (among other heritage benefits).
The wider public benefits of new residential units (including integrated developer subsidized affordable units for individuals and families who would not otherwise be able to afford to live in the area), safe and accessible green parks and gardens, significant road and other infrastructure upgrades in the area and the major rehabilitation of the polluted and degraded waterways adjacent to the property also stand to be lost.
On the other hand, and against the real, tangible and wide benefits of the development, the applicants, represented by Prof. Leslie London and Mr. Tauriq Jenkins, have made vague and open-ended claims that the development will result in the loss of intangible cultural heritage.
Yet they have been unable to identify any single aspect of indigenous cultural life that they or any other party will no longer be able to enjoy when the degraded mashie golf course and tarmac parking area are replaced by the development under construction. Nor have they demonstrated at all how the various conditions of approval of the development will not safeguard any intangible heritage associated with the broader area.
While the applicants continue to make a number of claims about the sacredness of the River Club property, there are no burial grounds on the site and no ceremonies took place or currently take place on the land. Archaeological and geological surveys provide tangible verifiable evidence that contradicts these unsubstantiated claims (repeatedly echoed in opinion piece articles – blatantly spreading misinformation).
Furthermore, the claim that it is where the First Nations defeated Portuguese soldiers under Francisco D’Almeida in 1510 has no basis in fact. Independent Heritage Impact Assessments (HIA) undertaken of the site as well as the broader Two Rivers area concluded that this battle more than likely took place a number of kilometers away, in Salt River. It is for these reasons that the likelihood of the property being touted for World Heritage protection by UNESCO is unlikely.
Yet the River Club development will provide the very protection to heritage that is sought, as well as the celebration of the historical indigenous culture of the area - whereas an interdict does not – it only harms heritage.
The interdict was granted on the sole and incorrect basis of hearsay evidence made-up and heard for the first time at the interdict hearing based on misleading and unsubstantiated claims by Mr. Jenkin’s that certain groups were excluded from the public participation and consultation processes. However there was no allegation made under oath that any group was excluded.
Opposition is not exclusion. Ultimately the applicants could not provide any evidence of (and the court could not identify) a single group who has a legitimate claim over the intangible heritage of the area and who were excluded from the extensive municipal planning and environmental public participation processes. As a result, the LLPT was not afforded an opportunity to deal with these allegations and place facts before the court which would negate the hearsay evidence.
Additionally, as the interdict order stands, it also impacts the foundational principles of our law (including separation of powers and the constitutional interest-of-justice standard) and with it the future of sustainable development in our country, that warrants consideration by our SCA.
The LLPT has therefore set out in its application that there are good prospects that the SCA may well come to a different conclusion to that of Goliath DJP, if leave to appeal is granted.
Ultimately, it will be the review court (and not a court considering an interdict application) that will be tasked with assessing whether the administrative decision makers acted rationally and whether the process was public and fair when approving the development.
Prof. London and Mr. Jenkins’ supplementary founding affidavits in the pending review are now eagerly awaited so that the review can proceed to be determined on its merits by the High Court.
Finally, the applicants continue to push their false dichotomy messaging – that by choosing the redevelopment, you are choosing jobs over heritage. But this is clearly false. The River Club project will bring heritage, environmental, economic and social benefits, at a time when they are desperately needed.
As a result, pushing for this development to be moved to another piece of land, which will not see these unique environmental, social and heritage amenities being delivered is extremely short-sighted and self-serving.
It would be a miscarriage of justice if the attempts of Prof. London and Mr. Jenkins, who clearly have no interest in the social upliftment of surrounding communities, to block this world-class project and the many critical opportunities it will bring, including much needed jobs, succeed.