CAPE TOWN - In yet another victory for the indigenous Khoi and San, the Western Cape High Court has turned down the leave to appeal bid against its decision to interdict construction at the River Club development site - earmarked for Amazon as an anchor tenant.
The Liesbeek Leisure Property Trust (“LLPT"), the City, the Province and the First Nations Collective (“FNC”) have all lost their bid as the court dismissed all applications for leave to appeal with costs.
Deputy Judge President Patricia Goliath had in March granted the interdict, saying that the fact that the development has economic benefits can never override the fundamental rights of the First Nations People - which was under threat if the development was allowed to proceed.
This was after the Observatory Civic Association (OCA) and the Goringhaicona Khoi Khoin Indigenous Traditional Council (GKKITC) approached the court to stop the R4.6 billion rand development from proceeding, citing irreparable harm and no proper consultation, among others.
The interdict is set to remain in place pending a review of the relevant environmental and land use authorisations by the City and the provincial Department of Environmental Affairs and Development Planning.
Following the interdict, the respondents including the LLPT, the City, the provincial government and others, applied for leave to appeal.
In their extensive submissions on the consultation part of the court order, they argued that the court should not have halted the construction pending review proceedings.
But in her ruling yesterday, Judge Goalith said: “Respondents argued that the effect of the consultation order is that this court had made decisions regarding both the interdict application and the validity of the impugned decisions, and consequently the court has disposed of a substantial part of the Applicant’s case which were supposed to be determined in Part B (the review application).
“While the applicants had welcomed the spirit in which the consultation order was made as being one which applied and embraced the duty of the judiciary in fashioning relief to have regard to the fundamental rights in the Bill of Rights, the values underlying it and the obligations of South Africa under international law.”
In this regard, the OCA and the GKKITC, proposed to amend the consultation order so as to provide for a conciliation process instead to be ordered between the Respondents and all First Nations Groups having an interest in the matter in terms of section 17 of the National Environmental Management Act. No. 107 of 1998 (“NEMA”), which the respondents rejected.
“In my view any affected First Nations Peoples should be afforded the opportunity to vindicate their constitutional rights. Such an opportunity should be coupled with protection from the irreparable harm the First Nations Peoples may suffer should the developer build itself into an impregnable position. In my judgement I found that in the absence of an interim interdict, the advanced state of the building construction might render review proceedings a brutum fulmen. I am accordingly of the view that in the absence of an interim interdict the relief sought in Part B would in all probability be rendered nugatory (futile) if the construction is not stopped pending the review,” Judge Goliath said in her ruling yesterday.
“I have considered the facts of the matter, and the grounds of appeal in the Notice of Appeal, together with the submissions made by the parties. I have carefully reconsidered my judgement and have concluded that the arguments raised by the respondents are without merit. I have considered whether the appeal would have reasonable prospects of success and I am convinced that there are no reasonable prospects that this appeal would succeed.”
The LLPT on Thursday said they would approach the Supreme Court of Appeal.
Cape Times