Today, Judge Patricia Goliath considers the four applications (from the Liesbeek Leisure Property Trust (LLPT), the City of Cape Town, the Department of Environmental Affairs and Development Planning (DEADP) and the First Nations Collective (FNC)) for leave to appeal the groundbreaking interdict she granted to stop the construction at the River Club Observatory. She had awarded the interdict on the 18th March because of the evidence of irreparable harm to the culture and heritage of indigenous people should the construction be allowed to continue. The ruling was historic because it recognised that, in matters concerning the rights of indigenous peoples, economic benefits “can never override the fundamental rights of First Nations Peoples." She also ordered that, given the wholly inadequate consultation process that led to the decisions, there should be meaningful consultation with all Khoi and San groups with an interest in the intangible heritage of the site, rather than just with groups who have chosen to support the development, as was the case.
In line with Judge Goliath’s ruling, our legal counsel, Cullinans and Associates, approached the respondents this week with a proposal for a conciliation process to run in parallel with the review proceedings. We asked all the parties to agree to an order that they participate in a conciliation process led by a conciliator appointed by the Director General of the National Department of the Environment – as is provided for in section 17 of the National Environmental Management Act. Further, in the spirit of expediting the review, we suggested that the exchange of pleadings in the review continue in parallel to the conciliation so as not to delay the review.
We would have hoped that the respondents might have considered this an opportunity to protect the heritage of a sacred site through a meaningful consultation process as order by Judge Goliath. Sadly, though predictably, the respondents all rejected our approach. This is not the first time that the proponents of the development have eschewed meaningful participation.
Being the location of the first land theft in South Africa and the origin of the displacement and attempted extermination of San and Khoi peoples, the site is a profoundly important one for the indigenous peoples of the region and offers a site for deep healing and reconciliation for the people of our country. As articulated by Tauriq Jenkins, High Commissioner for the Goringhaicona Khoi Khoin Indigenous Traditional Council (GKKITC), the site could serve as a symbolic place of reference to host a First Indigenous People’s Conciliation Commission, and thereby help all South Africans on a path to healing, “to unclench the transgenerational knot of trauma that holds back our nation.”
It is therefore doubly dismaying that the respondents should have rejected these efforts to explore reconciliation so dismissively.
The River Club development initially prompted remarkable unity amongst Khoi entities wanting to preserve their heritage. In 2018, a Heritage Appeal Tribunal convened to consider appeals by the developers and other government departments against a provisional protection order issued by Heritage Western Cape (HWC), intended to protect the heritage threatened by the development. At the first Tribunal meeting, the Board Room at HWC was filled to capacity with Khoi leaders and cultural activists who expressed their attachment to the site through living memory. As summarised in the Tribunal’s Interim Directive, participants in the hearing expressed forcefully the view that they found any development on the sacred open space to be “intolerable” and an unacceptable affront to their heritage and identity. However, by 2019, division had been sown amongst Khoi entities after a highly problematic report by a consultant employed by the developer created the First Nations Collective (FNC). Since then, Khoi and other opponents of the development have been subject to smears, insults, intimidation and threats.
Despite all that, we were still willing to embark on conciliation efforts to put into practice what Judge Goliath identified was necessary for any fair process of decision making – meaningful consultation.
We can only conclude that the respondents do not want meaningful consultation and are threatened by the fact that the FNC does not speak for all Khoi people. Moreover, it appears the LLPT are unwilling to embrace meaningful participation, except when it suits them. In 2018, they were opportunistically quick to use the purported lack of meaningful participation by HWC as an argument for their appeal against provisional protection of the River Club. Instead of welcoming the opportunity to achieve heritage protection of the site, they tried to stop HWC from fulfilling its statutory role, which included protecting the site so it could be graded for heritage. Today, however, meaningful participation is an obstacle to their desperate need to get concrete flowing on the sacred site – so it is of no importance to LLPT.
Let us be clear – entities that think they can get away with unlawful decisions because they are powerful and wealthy will have to reckon with the law. We will insist, in the Review that follows, that a process for meaningful consultation with ALL parties is prioritised. Since the LLPT does not appear to have ever really understood what meaningful consultation requires, we will make proposals to the court for how that meaningful consultation should happen. We remain confident in our belief that the Constitution, as the supreme law of the land, will protect the human rights of all indigenous people, rather than advance the particular interests of rich developers and those who have made common cause with the developers. We believe Judge Goliath traversed all the matters raised by the respondents carefully in her judgement issued on 18th March and will not grant them leave to appeal.
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