The Liesbeek Leisure Properties Trust (LLPT) seeks leave to appeal the decision of Deputy Judge President Goliath to interdict construction of the R4.6 billion River Club redevelopment in Observatory, Cape Town.
The interdict, based on an application launched by two applicants, Prof Leslie London (UCT academic and chairperson of the Observatory Civic Association (OCA) – which has 55 members) and Mr Tauriq Jenkins (the self-proclaimed leader of a voluntary group called the Goringhaicona Khoi Khoin Traditional Council (GKKTC), a colleague of Prof London and a member of OCA) who have no legitimate claim over the intangible heritage of the area, or standing within the First Nations community.
The interdict was granted more than a year after the Western Cape Provincial government decision makers granted heritage and environmental approval, and more than 11 months after the City of Cape Town granted final planning approval and 8 months after commencement of construction began, with lawful building permits and licences all in place.
It is in the interests of justice that this interdict is appealed because the harm which flows from it is serious, immediate, ongoing and irreparable.
The obvious harm is to the economy of the Western Cape and the country, at a time when jobs and investment are in dire need. Currently, 6000 direct and 19 000 indirect jobs are in the balance, including the jobs of 750 construction workers sent home on 19 March 2022, when the ruling was delivered.
There is also the threat of a loss of capital injection of billions into the economy and the domino effect of serious loss in investor confidence in our country, at a time when Statistics South Africa’s (Stats SA) quarterly labour survey for the fourth quarter of 2021 recorded a 35.3% official unemployment rate, the highest since the start of the survey in 2008.
An equally important harm is the risk of immediate loss of the recognition and manifestation of the historical and intangible heritage of the Cape Peninsula Khoi if the development does not proceed.
The Western Cape First Nations Collective (WCFNC) comprising the majority of the affected Cape Peninsula Khoi have constructively engaged with the developer over several years to reach a final development plan which aims to ensure the Cape Peninsula Khoi’s intangible heritage is given manifestation.
A First Nations operated and managed Heritage, Cultural and Media Centre, indigenous medicinal garden, eco and heritage trails throughout the development all hang in the balance. This opportunity cost is brought into sharp relief when considering that the Cape Peninsula Khoi have no current official site of recognition or memorialisation.
The consequences of stopping development proceeding is in stark contrast to what the court noted in the Order about the impact on heritage resources.
In her judgment, Judge Goliath noted that the interdict must not be construed as a criticism of the development, or as casting aspersions on the views expressed by the majority of the indigenous groups and councils of the Western Cape, (the WCFNC), who joined as 8th respondents against the interdict, that this is a “genuine instance of indigenous agency with members of the FNC partnering with a commercial enterprise to ensure both sustainable development and the enhancement of the site’s heritage resources”.
Aside from the loss of jobs and an opportunity to memorialise the heritage of the Cape Khoi, the broader community will also face the loss of significant socio-economic and environmental benefits, including the provision of developer-subsidised inclusionary housing (for those people that otherwise cannot afford to live in this suburb); major upgrades to surrounding roads and safe and accessible green parks and gardens that will be open to the public.
The redevelopment will also see the major rehabilitation of the polluted and degraded water bodies running adjacent to the property.
Of importance in the final review hearing, will be to set the record straight and for the respondents to have an opportunity to present the facts in relation to the unsubstantiated claims that there was inadequate consultation, on which the interdict ruling was made, as these claims were not part of the applicants’ grounds of review but only claimed in court without evidence of this in the records before the court and no party appeared before the court or filed any affidavits supporting this claim.
Even though Mr Jenkins and the GKKTC have no historical link to the area and their claims that it was a scared burial ground or place for ceremonial gatherings have not been supported by the actual evidence of excavations of the site nor by the expert heritage reports (nor supported from the oral evidence of the Cape Peninsula Khoi with historical links to the area), they were in fact invited to participate in the consultations with First Nations Groups, however, they voluntarily elected to pull out of these processes.
For the first time in court their intentions were made known when they suggested that the site must be expropriated and returned to its “original state” before it was a golf course - an option that is neither viable nor feasible, nor desired by the majority of the Cape Peninsula Khoi.
These are the facts which respond to the baseless allegations about consultation levelled by Jenkins and London (for the first time in court) which the respondents did not have the opportunity to respond to.
It is also telling that they did not even mention in court their original grounds of review concerning the environment, rightly so, as no valid grounds exist.
For these reasons, LLPT will again ask for an appearance in court to evidence the injustice of blocking this world-class project and the many critical opportunities it will bring, including much needed jobs.