On Friday 21st, the court heard the last arguments in our urgent interdict application to stop the River Club re-development. The judge was much more interventive with the legal representatives for the City and the First Nations Collective (FNC). In particular, she asked probing questions about who constitutes the world of the Khoi revivalist movement, so was clearly attuned to the questions around the credibility of the FNC claiming to speak on behalf of all the Khoi. She also sought to explore the consultative process leading up to the generation of the LLPT’s River Club First Nations Report, upon which the developers relied heavily to claim their Heritage Impact Assessment complied with the law and the requirements identified by Heritage Western Cape.
As argued in our papers by, Deidre Solani-Prins, a UNESCO-accredited expert on intangible heritage, the report failed to do so because it “decontextualises intangible heritage, does not appreciate the intrinsic link between the sense of place and the landscape of the River Club site and surrounding area and is divisive rather than inclusive which distorts the First Nations narrative.” The judge invited the OCA and the Goringhaicona to submit a schedule drawn from the court documents showing who was not included in the LLPT’s so-called consultative process to generate the First Nations report.
It is this report on the First Nations perspectives and understandings, and the process by which it was created, including the legitimacy of the consultative process, which is of key relevance to whether constitutional rights are under threat as a result of the development.
The respondents’ counsels had also argued earlier in the week that any delay resulting from an interdict would be fatal to the project. However, the judge pointed out on Friday that an interdict can be followed by an accelerated review process, so cannot be used as a justification to turn down the interdict. Whether she considers this a factor in coming to her decision is not clear but it was obvious that she is attuned to that perspective and so may be less swayed by the arguments related to economic loss. It certainly seems clear in her mind that the developer’s economic loss, should it transpire, would be entirely of their own making, since they took the risk to start construction knowing this was going to be challenged in the High Court.
One comment made by the FNC’s counsel during his presentation was notable. He described the agreement from the developers to establish a Cultural Centre, indigenous herb garden, amphitheatre for performance of Khoi rituals and Khoi images on site as a concrete outcome of a negotiation process. It’s ironic he used that metaphor involving concrete because a concrete outcome is exactly what this development will bring and it is exactly what indigenous Khoi activists and leaders are protesting. They do not want 150 000 square metres of concrete on a sacred site of high environmental sensitivity no matter what amenities the developers have offered in exchange for obliterating the intangible heritage of the riverine valley.
As Tauriq Jenkins, High Commissioner for the Goringhaicona Khoi Khoin Indigenous Council argued, “We say no to the concrete on the floodplain, to infill of the river, to the loss of memory to a mall with motels. We will not bid the kingfisher farewell. We say no to the violence against nature, to the violence of apartheid spatial planning, to the violence of the false claim that this is all done with the full consent of the Khoi and San.”
Our counsel closed the arguments by re-outlining the constitutional basis for irreparable harm being the threat to irreplaceable and sacred intangible heritage, which must justify the urgent interdict.
He linked the obligation to respect indigenous people’s right to international law as well as pointing to the fact that, under the relevant South African law, there are mandatory prescriptions that have to be followed.
The court proceedings ended about 4.40pm. Outside the court, activists from the Gorachoqua Cultural Council were indefatigable, drumming us on to victory.
The opposition to the development mobilised by the court case has been striking. Khoi groups have travelled from other provinces to express solidarity with Khoi brothers and sisters protesting outside the courthouse and at the Liesbeek River. This is a clear indication of what Martinus Fredericks, paramount chief of the !Aman (Nama) Traditional Council, said when he indicated that Indigenous leaders would turn to the court and would “mobilise every single Khoi and San person in the country to stop that development.”
The judge will probably make the decision within a few days but in the meanwhile, the developers plough ahead with more concrete.
The court hearings are available on Facebook at this link.
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