Last week was a dim week for environmental and cultural justice. As you know, the Department of Environmental Affairs and Development Planning pulled off the heist of the century by awarding the LLPT an environmental authorisation for re-developing the River Club on 20th August, defying all logic or plausible explanation for how they could sign off when the competent heritage authority says the Heritage Impact Assessment fails to meet legal requirements. But, hardly had the laserjet ink dried on that decision, when the City of Cape Town Planners stepped up to the mound to announce on the 9th September that they would convene a special meeting of the Municipal Planning Tribunal to consider a rezoning application on Friday 18th September, a mere 9 days later. Talk about full throttle …

LLPT has applied for rezoning in August 2018 in the midst of the Provisional Protection Order issued by Heritage Western Cape but had decided to wait till the EA was concluded before pursuing the rezoning application. The problem is that if an application is not decided within two years or new information is available relevant to the application, the relevant planning bylaw indicates the City may order a re-advertising of the application.

Now you might think that what the developers submitted in 2018 is quite different to what is on the table now, given that they had no Khoi support in 2018, no response to heritage concerns and a physical design that the South Africa Astronomical Observatory were up in arms over. A long and involved public participation process, a contested Provisional Protection order and a set of final comments by Heritage Western that is damning of the developer’s Heritage Plan to confine Khoi heritage to a reconstructed river, a media centre and a commemorative centre – all of these reports would be relevant to consider.

Not so for this Tribunal – who were happy to accept every single misrepresentation presented by the developers as being evidence of accommodating heritage concerns – but without so much a whiff of independent review of the reports before them – reports paid for by the developers. They did not allow into the Tribunal the Heritage Appeal Directive, nor the final Comments from Heritage Western Cape on the HIA. Instead they lapped up only the reports fed them by consultants paid by the River Club.

For example, those of us unfortunate enough to be in the Tribunal and witness the farce unfolding, heard the LLPT’s ‘heritage expert’ denigrate the Goringhaicona as being ‘a bunch of drifters’ and ‘outcasts’ who really had no claim to the River Club land whereas the River Club’s current Khoi supporters were the authentic custodians of this very lucrative piece of real estate. How convenient.

Another LLPT consultant described the Liesbeek River as ‘a stormwater gutter’ so as to justify burying the original course of the Liesbeek and landscape an artificial canal into a false river, onto which lots of heritage importance can be attached. This contempt for the riverine open space that is sacred terrain of immense meaning to the Khoi and San, is just a continuation of the violence perpetrated by the Dutch settlers against the indigenous people. 

However, the sad fact was that the panel (all men) have absolutely no training in heritage matters but the City’s planning system gives them the power to make decisions affecting a sacred heritage site for eternity based on the developer’s version of history. The Tribunal panels include professional planners and surveyors from the private sector and City Development Management officials, but no-one with any heritage expertise. Despite this, the City’s Mayoral Committee Member for Spatial Planning and Environment could claim in a public media release in June that “over the past five years, the … establishment of the MPT has allowed the City to consider all planning applications within a locally suited context and ultimately facilitates a more responsive development regulation in Cape Town.” Responsive to developers, perhaps, but not to communities and First Nation representatives unwilling to side with developers.

The OCA presented a set of arguments that pointed out how new information directly and highly relevant to the application was being kept from the Tribunal’s consideration, while IAPs were denied opportunity to comment on material introduced by the developers. Representatives from the Gorinhaicona Indigenous Council attempted to show how national and international human rights law mandates bodies of state to respect indigenous people’s rights. Ndifuna Ukwazi, a housing rights NGO, recognised that the concept of Spatial Justice in the Spatial Planning and Land Use Management Act (SPLUMA) is not just about affordable housing but is also about heritage and memory and so they opposed this development. Another Observatory resident made a brief presentation that the proposed developed failed to actualise Non-motorised transport, while a representative of the Two Rivers Urban Park focused on the environmental concerns and appealed to the MPT members to do the right thing.

Unfortunately, the MPT meeting turned out to be what communities have long said it is – a rubber stamp for developers.  We know, for example, that Bokaap community are still in a legal battle over the MPT’s approval in 2016 of a monster building cutting off the Bokaap heritage area from any sight of the City – one of the few areas where black families have had easy access to the City will now be walled off by a 60m high, R1 billion development of 4 000m² of retail space and 250 residential apartments. This is the kind of decision-making the city has created which Crispian Olver exposed in his book about the confluence of factional political conflicts within the City of Cape Town and the ascendance of developer interests in decision-making. 

Even the process by which the Tribunal was organised was Kafkaeseque. Nine days to prepare, review 23 pdf files of 703 Mb, discover that amongst all the files are 9 new reports of which you were not aware, and then formulate a response. You can respond but you can’t introduce new information (whereas the developers have already done so, with the blessing of the City Planners and the MPT - and it is information you have not seen). When you ask to present to the Tribunal, you discover the chair has already allocated who can speak and you have to depends on the Chair’s discretion to allow you a 5 or 10 minute slot. And all the objectors are railroaded into the same total amount of time as the developers, no matter how objectors wish to present. So much for equality under our Constitution.

So, we are not surprised at the outcome, given the fact that the City planners and DEADP joined the developers in opposing Heritage Western Cape’s provisional protection order over the River Club in 2018, claiming there was no imminent threat to heritage. The collusion between the planners in the City, the officials in the provincial government, and the developers in the Heritage Appeal Tribunal has now been consolidated with perfect coordination and timing. And the threat to heritage, confirmed in the Heritage Appeal Tribunal directive, is now overwhelming.

One of the most disappointing aspect of this farce was that our Ward Councillor failed to submit an objection to the development. Councillor comment is part of the formal process in the MPT and is considered an important factor in shaping the MPT decision. However, despite repeated appeals we made to him to express his strong objection, our Councillor declined to object but sent a private note to officials indicating he had a concern about the objector list. Under the Municipal Systems Act, a councillor is meant to represent the interests of his/her constituency in ward matters by submitting comments in any the formal development process. We were badly let down.

We know the developer has trumpeted this as a victory for the people of Cape Town. It is nothing of the sort. It is a victory for elites in Cape Town to enrich themselves and destroy a valuable heritage resource that is slated to be part of a National Heritage Liberation Route. 

There will be some people who will benefit but it is not a victory for the people of Cape Town. If the development goes ahead, it will mean permanent destruction of the intangible heritage of Liesbeek Riverine valley, a sequestered set of heritage tokens remembering what could have been, a monster development that will create some jobs in the short terms but leave us impoverished in the long terms and make us more vulnerable to climate change, since it is built in a flood plain.

Despite this gloomy picture, we will not give up because we believe in our cause, we believe in justice and we believe South Africa is a democracy in which procedural justice and fairness are preserved in a Constitution for which many people fought, and, sadly, died for.

So, we will be appealing both the EA to DEADP and the MPT decision to the City’s appeal authority.

Please boost our Petition at change.org. We currently have over 18 000 signatures but really want to push that over 20 000. Sign and/or share with friends.  It’s time for change. Please join us.