River Club developers appeal court order halting Amazon-backed construction

The River Club development in Observatory has been met with opposition from some indigenous people, en conservation groups and concerned residents. Picture Leon Lestrade. African News Agency/ANA.

The River Club development in Observatory has been met with opposition from some indigenous people, en conservation groups and concerned residents. Picture Leon Lestrade. African News Agency/ANA.

Published Mar 30, 2022

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In a long-running battle over the controversial R4.6 billion River Club River Club development, the Liesbeek Leisure Properties Trust (LLPT) has filed an application for leave to appeal an interim interdict putting a halt to construction work.

On March 18, Western Cape High Court deputy Judge President Patricia Goliath granted an order stopping construction of the development, backed by Amazon, at the confluence of the Liesbeek and Black Rivers in Observatory until a decision was made on whether or not the authorisations for the development were granted lawfully.

Noting that the court order was "final in effect and substance', the LLPT said that the decision already had and would lead to further economic harm at a time when the unemployment rate was high.

In her order, Judge Goliath found that the consultation process with interested and affected parties about the development was inadequate as it did not involve all affected First Nations Groups.

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," Goliath said in the court order.

However, the LLPT said in its application for leave to appeal that the court erred  in its decision as the Goringhaicona Khoi Khoin Indigenous Traditional Council (GKKITC)’s Tauriq Jenkins made no allegation of exclusion in his affidavit and any subsequent allegation constituted "  inadmissible hearsay evidence".

It further argued that the Court erred in finding that “it was common cause and was not seriously disputed that certain groups did not participate in the consultation process, or subsequently withdrew from the consultation process”.

"The Court also erred in finding that the public participation or consultation processes preceding the impugned decisions were defective or compromised on the basis that Mr. Arendse [consultant]  had a conflict of interest and was biased in favour of the First Nations Collective," the LLPT argued in its application.

The LLPT also said it was in the interests of justice that leave to appeal be granted as the harm which flowed from the decision was "serious, immediate, ongoing and irreparable".

"If the relief granted in the order remains operable, the crippling financial liabilities which the LLPT will suffer make it all but certain that the development as planned and approved will not go ahead, " it further argued.

The First Nations Group said it’s appeal against the order was also imminent.

“Our court papers are ready for submission. We also remain resolute in our support of the River Club development and the LLPT which has done much more for the Khoi than any government department”, said the First Nations Spokesperson, Zenzile Khoisan.

In a media statement LLPT spokesperson James Tannenberger took a swipe at the main applicants of the interim interdict, Observatory Civic Organisation (OCA) chairperson, Prof Leslie London and Jenkins.

He claimed that OCA only had 55 members and that Jenkins was a "self-proclaimed leader of a voluntary group called the GKKITC " and had  no legitimate claim over the intangible heritage over the broader Two Rivers Urban Park.

In response OCA and the Goringhaicona said  they believed that the LLPT appeal was a "misplaced" attempt to re-argue issues that were covered in the interdict hearing.

"By repeating spurious claims against the Goringhaicona, on matters which have been dealt with in court already, this is an attempt to smear its High Commissioner [Jenkins]

"It is not the first time that the developer, with an all white board of directors, arrogates to itself the entitlement to decide who is a legitimate indigenous traditional entity. Let the courts decide if this arrogant and colonial attitude of diminishing the Goringhaicona has any credence as evidence; let the courts  examine whether the in-filling the Old Liesbeek Channel, and the devastation of the floodplain are heritage and environmental crimes".

The two bodies  also said that meaningful consultation could not be achieved with threats.

"Given the wider flurry of disinformation playing out in the media, we view this interdict application as part of an orchestrated PR campaign designed to save face by the developer.

They said the LLPT chose to pursue the development in full knowledge that it would end in court.

Judge Goliath also noted in her decision that the developers willingly took the risk on themselves.

Both OCA and the GKKITC also said "economic benefits" claimed for the  development could not justify "irreparable harm" to the heritage and culture of First Nation Peoples.

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