The developers, Liesbeek Leisure Property Trust (LLPT), applied for leave to Appeal on 28 March against Judge Patricia Goliath’s interdict ruling that they may not proceed with construction on the River Club site until the High Court reviews the rezoning and Environmental Authorisation decisions (by the City and the Province, respectively) and until meaningful consultation takes place with all affected Khoi and San peoples. The fact that the LLPT have appealed the ruling does not surprise us. Nor does it surprise us that the LLPT have been joined by the City, the Department of Environmental Affairs and Development Planning and by the First Nations Collective who have also sought leave to appeal.  The first three parties already have experience of being on the same side of an appeal of Heritage Western Cape’s Provisional Protection Order over the River Club, intended to allow grading of the site for Provincial Heritage status.  They lost that appeal.

Let’s examine the LLPT appeal of the interdict. Firstly, they argue that the assertions by the Goringhaicona Khoi Khoin Indigenous Traditional Council (GKKITC) were ‘hearsay’ and not presented in the Court documents at the interdict hearing. Because Mr Tauriq Jenkins could not establish precisely what intangible heritage was threatened, they further assert he and the GKKITC could not face irreparable harm. They also claim that new arguments were entered in Court to which they could not respond.

This is all illogical because the reading of the submissions, arguments and the documents before the Court were what Judge Goliath considered in detail before coming to her decision. She made it clear she was not entertaining new submissions and the LLPT had every opportunity in Court to contradict the submissions made by our counsel and in our affidavits. Yet they chose not to do so.

For example, Mr Jenkin’s responding affidavit presented evidence that Mr Rudewaan Arendse, the so-called “independent consultant” appointed by LLPT, was a founding member of the First Nations Collective (FNC) as confirmed in a listing of FNC directors on the Companies and Intellectual Property Commission site. Judge Goliath noted that this fact was not contested by any of the responding parties during the hearing.  Yet the LLPT are now publicly disputing that Mr Arendse was a member of the FNC.  It is frankly impossible to understand how they can deny his membership of the FNC when he was, incontrovertibly, a founding director of the organisation.

More troubling is the fact that if the LLPT are serious about claiming that Judge Goliath relied on ‘hearsay’ evidence, then they are implying that she did not carry out the responsibilities of a judge appropriately.  In our opinion, this is consistent with the LLPT’s approach to treating the law with disregard. How else does one explain their insistence on proceeding with construction when they knew Heritage Western Cape had declared their Environmental Authorisation unlawful?

LLPT’s second attempt to subvert Judge Goliath’s ruling is to claim that the interim interdict is, effectively, a decision with final effect. An interim interdict is not appealable by virtue of the fact that it is not a final decision. As grounds for it being effectively a final decision of the Court, they claim that if the interim interdict is upheld, 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” and that “members of the First Nations Collective and their future generations will be deprived of the only feasible prospect of manifesting their intangible cultural heritage at the River Club property, thereby endangering transmission of their cultural legacy.”

The peculiar thing about this argument is that the “crippling financial liabilities” are precisely the risk that LLPT took in commencing and pursuing construction at breakneck speed, despite knowing the redevelopment approvals were going to be argued in Court. It’s a risk that Judge Goliath pointed out as not being relevant to deciding on the validity of the interdict. Secondly, there is no plausible evidence that the LLPT development is the “only feasible prospect of manifesting their intangible cultural heritage.” Since SAHRA are currently processing a grading application for the site for National Heritage status, there are many other possibilities that may be proposed for how best to celebrate the immense importance of the site for First Nation peoples and its significance as an environmental resource for climate resilience and biodiversity.

Moreover, the LLPT have no hesitation in insisting the applicants can wait for finalisation of the Review process whereas they can’t be expected to do so. Not because of any irreparable harm to fundamental human rights of indigenous persons, but because of their financial losses and the claims related to how many jobs will be lost. These are jobs that could and should have been created by a proper decision-making process which, rather than leapfrogging the contested River Club site to the top of a list of five other shortlisted sites, would have led Amazon to put up their HQ on any of the other shortlisted sites that met their criteria... and generate jobs.

Essentially, from the outset the LLPT have chosen to minimise the heritage significance of the River Club site and they continue to do so. For example, in his responding affidavit, the LLPT representative Mr Jody Aufrichtig referred to the “imagined intangible heritage” of the site. This is an understanding that is not only misguided and out of step with any currently accepted heritage practice, but also incredibly offensive to Khoi and San stakeholders. As Ms Solani-Prins, a UNESCO-accredited expert on intangible heritage, noted in her responding affidavit, “to imply that the significance of First Nations people's intangible heritage associated with the site and the wider Two Rivers area, is imagined, is totally insensitive  to the memories of the ancestors to the very people he and the First Respondent professes to be benefitting with the proposed development.”

But it’s not surprising that the LLPT takes that view. It’s consistent with their Heritage Impact Assessment (HIA) which, for example, reduced the visual impacts of 18 buildings of up to 50m tall on a sacred floodplain as a matter of “receptor perceptions” and dismissed the sense of place as “ephemeral and difficult to define.” Bizarrely, the HIA acknowledged that “stakeholders value the ‘openness’ in the sense of place of the floodplain, as well as the views from within and across the floodplain.” Yet, then went on to conclude that “while the development may lead to a significant visual impact, it is of relatively low heritage significance”, on the basis that “whether the site is developed or otherwise, it will always have a history which is not manifested on the ground and cannot be destroyed by physical changes.”

The image above cannot be clearer about the extent of impact of the development. No wonder Heritage Western Cape roundly rejected their HIA for failing to identify the main heritage resource of the site being the green open space associated in memory and identity with a legacy of Khoi resistance and oppression by colonial action.

We do not believe Judge Goliath will be taken in by their protestations and we are of the view she will reject their application for leave to appeal.

It's clear we will get backlash from parties who have vested interests and will gain from the redevelopment of the River Club site. We have already experienced plenty of that. But we are resolute in bringing to Judge Goliath’s attention the full range of environmental, heritage and planning errors and misrepresentations that helped to get this development approved in the course of the review.

For that, we really need your support.

Please help us fund these legal costs by contributing at our fundraising site. 

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