As the backers of the controversial River Club development prepare to approach the Supreme Court of Appeal following the dismissal of their leave to appeal an earlier judgement, those against it have hailed the court's decision as an affirmation of constitutional rights.
The Western Cape High Court upheld on Thursday the interim interdict issued on March 18, which effectively put a halt to the development on the floodplain at the confluence of the Liesbeek and Black rivers and on land regarded as sacred by indigenous people.
The development also plans to house the African headquarters of e-commerce giant, Amazon.
The application for leave to appeal was brought by the Liesbeek Leisure Property Trust (LLPT), the City of Cape Town, provincial Department of Environmental Affairs and Development Planning and the First Nations Collective.
The Goringhaicona Khoi Khoin Indigenous Traditional Council (GKKITC) and the Observatory Civic Association lodged an application with the Western Cape High Court in 2021 seeking an urgent interim interdict against the development, also backed by Amazon.
In granting the interim interdict pending the conclusion of the review of other aspects of the case including the authorisation decisions by the provincial and municipal authorities, Judge Patricia Goliath also appealed to all the parties involved to engage in a meaningful consultation.
On Friday the Observatory Civic Association and the GKKITC said they welcomed the court’s decision.
“We believe the significance of this finding reaffirms the strength of our Constitutional Democracy. Government authorities are not above the law and cannot make decisions without public consultation processes that are meaningful, particularly where they impact permanently on the rights of indigenous people,” read their statement.
“How exactly are we to enter into ‘meaningful consultation with parties who use smears to insult the parties with whom they are supposed to engage meaningfully?
The Liesbeek Leisure Properties Trust (LLPT) said it would now approach the Supreme Court of Appeal.
"This is a massive blow to all the people of Cape Town who stand to lose significant economic, social, heritage and environmental benefits," said the developer.
The First Nations Collective, which had been promised a cultural and heritage centre in the development, also said it would turn to the Supreme Court of Appeal.
In support of the application for leave to appeal, the Trust argued the court had closed its mind to economic infrastructural and public benefits by holding that they could never "override" the fundamental rights of First Nations Peoples.
Regarding the assertion by the Trust that it would suffer irreparable harm as a result of the interim interdict, the Judge found that there was compelling evidence to support the argument.
"It is not possible to determine what degree of harm the LLPT will suffer as a result of the interim interdict, let alone whether or not it will be irreparable.
"In an answering affidavit on behalf of the LLPT it was stated that precinct 2A of the development is being funded in terms of a development facility agreement with First Rand Bank Limited.
"LLPT failed to produce this agreement when called upon to do so," said the judgement.
In the March judgement Goliath also noted that the developer proceeded in full knowledge of the likely court challenge.
Judge Goliath also said that she had taken into consideration that any appeal would not have any"reasonable prospect for a successful outcome at a different court".