On the 20th September, Judge Dolamo dismissed the urgency of our interdict to halt construction pending the hearing to hold the developers in contempt of court for violating Judge Goliath’s March 2018 interdict. He argued that we should have rather have pursued the contempt matter urgently. We are disappointed he did not recognise that the failure of the lawyer for the group seeking to intervene to disrupt the Goringhaicona, to file papers by the 19th August, was the reason for the delay in the hearing of the contempt matter.
However, it is still the case that
a. Judge Goliath’s interim interdict of March 18th 2022 has not been overturned and remains in force.
b. The contempt of court by the developers, LLPT, is still to be heard. If the court finds that they initiated construction in illegal violation of the interim interdict issued by Judge Goliath on the 18th March, then they are still liable to be found in contempt of court.
c. A full bench of the Cape High Court will still examine the appeal by the respondents on the 11th and 12th October. Should the court reject the appeal, the LLPT will have no grounds for having commenced construction, nor can they continue construction.
It is unclear what Judge Dolamo’s finding regarding the individuals who claim to represent the Goringhaicona Khoi Khoin Indigenous Traditional Council (GKKITC) and who dispute High Commissioner Tauriq Jenkins’ standing to represent the GKKITC means, since they did not apply for any relief related to the Appeal. Judge Dolamo indicated that it was not a place of the interdict hearing to address the issues where both sides ‘are intent on outlitigating each other’, and alluded that in general, “the important matter of cultural rights of indigenous people are adversely affected.”
We remain of the view that this manufactured faction of the GKKITC has no standing in this matter but have been created in the last few months since the LLPT risked being found in contempt by commencing construction. Their appearance is, we believe, solely intended to undermine the legitimate actions of Indigenous activists seeking to protect the intangible heritage of a site current being investigated for national heritage status by the South African Heritage Resources Authority (SAHRA). SAHRA are also considering provisional protection of the site under the National Heritage Resources Act, given the ongoing threat to intangible heritage on site.
The destruction of tangible and intangible heritage assets of the Khoi and San by infilling this site with concrete is a form of ongoing ethnocide (erasing the culture of a people’s culture) and epistemicide (the erasure of Indigenous knowledge systems by colonial forces) that can be traced back to 1657.
Furthermore, the site is a green lung for the city, host to sensitive wetlands and home to threatened plant and animal species. Numerous organisations support our assertion that the site’s infill is a threat to climate resilience, to secure biodiversity management and will increase flooding, contrary to existing environmental policies. Far from improving the quality of water in our urban rivers, the redirection of the development levy away from desperately needed upgrading of the Athlone Waste Water Treatment works, so as to enable the Berkeley Road extension to be built, will aggravate sewage discharge into our urban rivers at a time when the Black and Salt Rivers are already highly polluted.
We remain resolutely opposed to the development as we have been from the very beginning in which a private developer, LLPT, and the anchor tenant, Amazon, are engaged in what we believe is a fundamental violation of Indigenous rights and a serious affront to environmental justice.
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