In November this year, the Full Bench of the Cape High Court handed down two very bad decisions in our campaign against the River Club development. In one decision, the Court found that High Commissioner Tauriq Jenkins was not authorised to represent the Goringhiacona Khoi Khoin Indigenous Traditional Council (GKKITC) and that he misled the court in his founding affidavit. In the other, the High Court upheld the appeal against Goliath’s interim interdict and awarding costs against the Observatory Civic Association (OCA).

High Commissioner Jenkins has now filed a notice of appeal to the Cape High Court with regard to the recission providing evidence of why the decision was misdirected. Should he be granted leave to appeal, he will be able to argue that the evidence in his affidavit, which was not accepted by court in October because it was too late, would have rebutted the unfounded allegations made against him in the case. It will then be shown that the only fraud in court was the fraud perpetrated against High Commissioner Jenkins.

As well, this week, the OCA filed leave to appeal in the Supreme Court in Bloemfontein the overturning of the interim interdict and the cost order by the Cape High Court. The appeal is based on three main arguments:

1.       If the recission was decided, the Court should not have considered the appeal, nor awarded costs in the matter, since the recission decision has already overturned the interim interdict.

2.       The principle of Biowatch (a case where a civil society organisation sought to hold government lawmakers accountable) make it clear that, in general, if civil society groups go to court over matter of Constitutional Principle, they should not be liable for costs unless the application was patently vexatious. Moreover, if costs were to be awarded against the organisation, clear reasons should be provided. Judge Barends did neither – she simply dismissed the Biowatch Principle with two words: “I disagree.” Our argument is that she failed to apply the law in considering this matter.

3.       Provisions of the National Environmental Management Act also provide for protection from costs for organisations that go to court “out of a concern for the public interest or in the interest of protecting the environment”, who do so reasonably and who had “made due efforts to use other means reasonably available for obtaining the relief sought”

With these appeals in motion, the original status quo is technically restored, so the developers continue to build in violation of the interim interdict.

There was a bit of high drama in that our affidavits for the Supreme Court were couriered from Cape Town to Bloemfontein (where the Supreme Court of Appeal sits) but the Courier truck was hijacked along with our documents. We had to reissue them, which meant we were a day or two late, and seek condonation for late submission due to factors ‘beyond our control’. But they are all now with the Supreme Court. Our lawyers are confident we have a good case to turn over the costs order.

We have also had to put up with sabotage of our fundraising platform, Backabuddy, based on a complaint from the developer, making false allegations against us following the court outcome in November. Since our entire court case has been fought on crowdfunding, this is a transparent attempt by the developers to undermine legitimate and legal fundraising to exercise our democratic rights.

We therefore appeal to you to continue supporting our cause by donating at our fundraising site. Please show the developers that bullying civil society will not work, now matter how rich and powerful you perceive yourself to be.

Any donation of any size will make a huge difference.  It has never been more important to support our case than it is now, when the developers and their allies are using all kinds of legal and non-legal means to tie us up in knots. We cannot pursue this case and the campaign effectively with our hands tied economically behind our backs.

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