Cape Town - The Western Cape High Court has granted South Africa’s indigenous people an interim interdict against a major Amazon-backed development on a sacred site along the banks of the Black River in Observatory.
The court’s decision, delivered before the commemoration of Human Rights Day, effectively puts a halt to the construction or earthworks under way at the River Club development.
In January, the court heard an urgent application by the Observatory Civic Association (OCA) and the Goringhaicona Khoi Khon Indigenous Traditional Council for an interdict to halt further construction work on the site.
The Two Rivers Urban Park (TRUP), at the confluence of the Black and Liesbeek Rivers is regarded as sacred by the Khoi and San people and those opposed to the controversial development said it would alter the site’s fundamental qualities, including intangible historic and cultural significance.
Deputy Judge President Patricia Goliath found the consultation process was inadequate as it did not involve all affected First Nations groups.
Judge Goliath also said those who were excluded or not adequately consulted might suffer irreparable harm should the construction continue pending the review proceedings.
“This matter, ultimately, concerns the rights of indigenous peoples. The fact that the development has substantial economic, infrastructural and public benefits can never override the fundamental rights of First Nations Peoples .”
She noted that the First Nations people had a “deep, sacred” link to the site through lineage, oral history and narratives, indigenous knowledge systems, living heritage and collective memory.
“The TRUP site is central to the tangible and intangible cultural heritage of the First Nations peoples. The fundamental right to culture and heritage of indigenous groups, more particularly the Khoi and San First Nations peoples, are under threat in the absence of proper consultation,” said Judge Goliath.
The Liesbeek Leisure Properties Trust argued in court that it would suffer disproportionate hardship if an interim urgent application was granted.
Legal counsel for the Trust told the court at the time that its clients had contractual obligations and had committed to a construction timetable and time frames.
It submitted in court that Amazon’s withdrawal from the development could harm the city’s economy and expose the developers to financial penalties and damages.
“Any such delay would most certainly see Amazon terminating the development and lease agreements. Even a reduced delay of six months will result in termination by Amazon,” the court was told.
Judge Goliath’s order said the Trust was fully aware that a legal challenge was
looming and refused to provide an under-taking to refrain from acting on the environmental and planning authorisations.
Therefore, a halt to the construction work could not be construed as being prejudicial to the Trust.
“LLPT elected to continue with the construction at its own risk,” said Judge Goliath.
The court order also called for the appointment of an independent consultant, noting that the tension among First Nations groups strengthened for meaningful and proper consultation.
Judge Goliath said the court order should not be construed as criticism against the development or views expressed by the First Nations Collective.
“The core consideration is the issue of proper and meaningful engagement with affected First Nations people.”
The interim court interdict was granted pending a challenge by the applicants to review or set aside the decisions by the provincial government and the City to give the go-ahead for the development.
While noting that there was yet another case to be argued soon, the Goringhaicona Khoi Khon welcomed the court’s decision as a step towards “restorative justice for indigenous people of the country”.
The Trust said it was disappointed by the outcome and was considering “the legal avenues available to it”.
The First Nations Collective said it would appeal against the judgment.
On Monday, the Goringhaicona Khoi Khon and OCA will return to the site they regard as “Ground Zero” for colonial land dispossession in South Africa.
Spokesperson for the Goringhaicona Tauriq Jenkins said the event would celebrate the country’s Constitution.
He said the event would also honour the resistance against colonisation and reaffirm the position that the “site and indigenous peoples’ heritage is not for sale”.