The applications for leave to appeal deputy judge president Patricia Goliath’s judgement to interdict construction of the R4.6 billion River Club re-development in Cape Town are unlikely to be successful.
This is according to members of the Liesbeek Action Campaign, which includes indigenous groups and environmentalists.
The campaign body filed an urgent court interdict in January in a bid to halt the construction of the 15-hectare parcel of land, which is expected to house US retail giant Amazon’s African headquarters, along with other large commercial businesses.
The legal battle sought to permanently halt the construction of the Observatory-based River Club, which is owned and operated by the Liesbeek Leisure Properties Trust (LLPT).
In the months-long legal battle, the Liesbeek Action Campaign expressed concern that the construction on the floodplain between the Black and Liesbeek rivers would lead to the land losing its historical significance and result in increased risk of flooding and environmental exploitation.
After the court interdict was granted to the plaintiffs last month, the defendants have launched separate appeals against Goliath’s decision to halt construction of the site.
The defendants in this matter – the Department of Environmental Affairs and Development Planning, City of Cape Town and LLPT – have all vowed to contest the ruling. They note the development is expected to create 6 000 direct jobs in total (800 of these jobs will only be created when the development is complete) and an additional 19 000 indirect jobs.
In a statement responding to this, the Liesbeek Action Campaign says the appeal against a historic judgement is a slap in the face of indigenous rights in SA.
“We believe the arguments made by the respondents are not likely to be successful. The courts did not consider hearsay, did not deprive the respondents of the opportunity to state their case and Judge Goliath’s reasoning is most certainly not misinformed about the public participation processes.
“Far from being ‘extensive’, she identified, from the evidence before the court, that the purported consultation with First Nations groups was wholly inadequate.”
The Liesbeek Action Campaign believes there will be irreparable harm to cultural and heritage resources, should the development proceed − an argument which it says was strenuously ignored by the authorities, but deemed valid by the court.
“Now the respondents are seeking to overturn a historic decision which recognises the particular legal obligations placed on governments when dealing with intangible heritage of indigenous peoples.We would have imagined that the consultation order, motivated by appropriate concerns on the part of the court, consistent with the fundamental rights in the Bill of Rights, would have presented an opportunity for the developer and other parties to welcome a meaningful consultation process to secure heritage resources. Instead, we see government ganging up with a wealthy developer to block this opportunity,” it says.
In the City of Cape Town’s application for leave to appeal the interdict, Anton Bredell, Western Cape MEC of local government, environmental affairs and development planning, noted his decision to appeal follows a thorough consideration of the judgement and the order, as well as the practical implications thereof.
“There are a number of errors in the judgement, and the order, inter alia, is fraught with misunderstandings about the wide public participation processes undertaken.
“Among the errors identified in the judgement were problems such as the court making a ruling on issues which were not argued by the applicants as part of their case in the first place, and the MEC is of the view that the court failed to undertake the exercise of weighing the balance of convenience, as it should have in an interdict application,” notes a statement from the MEC’s office.
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