Deputy Judge President Patricia Goliath has ordered that the interdict against the River Club redevelopment will finally be heard in the Western Cape High Court on 19, 20 & 21 January 2021. This is four months since the papers were finalised between the parties! While we are not happy with such a long delay, we are relieved that our day in court, once postponed, is now on track again. Because in the interim, the developers have lost no time in smearing us with false accusations in the press whilst barrelling ahead with putting as much concrete on the ground as possible.

You will see in the image above that the developers have started working on the Berkeley Road extension over the Black River. This is altering the area that is at the confluence of the Liesbeek and Black rivers, an area regarded as sacred for the Khoi. In 2015, Tim Hart, then an independent consultant, co-authored a study of the colonial and proto-historical significance of the Two Rivers Urban Park and argued that “… the valley of the Liesbeek, Black rivers, the confluence and remnants of the Salt River estuary … is an historical place and falls clearly within the ambit of the National Estate … The confluence of the Black and Liesbeek Rivers has special significance as it is possibly the last untransformed wetland in the study area.” Yet in 2021, this is exactly the site being destroyed by the Liesbeek Leisure Property Trust (LLPT) development on the basis of a Heritage Impact Assessment that says that “… apart from the Liesbeek River, the site itself has little obvious heritage significance.”

But altering river banks and infilling a river are activities that require a Water Use License (WUL) under Section 21 of the National Water Act since it is altering the banks and characteristics of a watercourse. The LLPT applied for a WUL without informing interested and affected parties.  On 10 June 2021, the Observatory Civic Association (OCA) were advised that the developers had been awarded a WUL which was open to appeal. On 21 June 2021, the OCA appealed the granting of the WUL which automatically suspends the WUL until the Water Tribunal decides on the appeal. Other organisations also subsequently submitted appeals.

After the appeal suspended the WUL, the LLPT approached the Minster of Water and Sanitation to ask her to uplift the suspension. Within five working days, the Minister uplifted the suspension – thus allowing the development to proceed. The most concerning fact about this process is that we were informed about the appeal being uplifted by the LLPT’s lawyers instead of the Minister herself. We only received a letter informing us from the Minister’s Special Advisor two weeks later. And we have yet to receive any substantive reasons for the Minister’s decision, as is expected under the Promotion of Administrative Justice Act.  We were only told in the Minister’s letter: “I have taken into account a number of factors, including but not limited to, the local economic development of Cape Town. Therefore, rejecting the application to uplift the water use license of Liesbeek Leisure Properties will not be in the best interest of the people of Cape Town and the economy of the county.” Her letter addressed to the LLPT approving the upliftment was even more bizarre and revealing. She simply told the LLPT that she “… decided to approve for the reasons stated in your letter dated the 28 June 2021.” We cannot discern any application of mind in this letter.

In stark contrast, the OCA submission on why the Minister should not uplift the suspension included 90 paragraphs of argument in a 33-page submission. She did not respond to these arguments. For example, paragraph 89 of our submission argues that the appeal by LLPT to uplift the suspension is an attempt to “… circumvent the water use licence appeal process as set out under the NWA, to ride roughshod over the constitutional rights of registered interested and affected parties to just administrative action and to protect the environment, to deprive registered interested and affected parties of their rights to participate fully in environmental governance and decision-making, to strong arm the Minister in lifting the automatic suspension in circumstances where LLPT failed to conduct its affairs with care and due regard for the law and to divest the Water Tribunal of its appeal power.” The Minister did not provide any evidence these arguments were considered, nor reasons why these statements were apparently unacceptable.

The Mail and Guardian published an on-line article drawing attention to the above anomalies on 26 August, 2021. In September 2021, the OCA received a lawyer’s letter acting on behalf of the Minister and her Special Advisor, threatening us with legal action for defamation over the contents of the Mail and Guardian article. However, the letter served only to reveal that the Minister and her Special Advisor had mixed up appellants to the WUL confusing the OCA chairperson with the chair of another appellant organisation. So, their claim to being defamed was not only without basis but completely trumped up – and it showed how poorly the Minister and her Special Advisor understood the nature of the submission. How exactly could the Minister have applied her mind to the upliftment decision if she could not tell the difference between appellants and then goes ahead to instruct a lawyer based on incorrect facts?

We need your financial support to interdict the redevelopment from going ahead and to get a proper plan in place that will make this a heritage precinct. Please consider assisting us with the legal fees. You can contribute at our fundraising site.

For more information, please visit our website and follow the Liesbeek Action Campaign on twitter: @LiesbeekAction.

Now is the time to Make the Liesbeek Matter!