River Club redevelopment: Applicants abandon the First Nations groups they have claimed to protect
On Thursday 14th of April, Western Cape Deputy Judge President Goliath’s heard the Liesbeek Leisure Properties Trust’s (LLPT) application for leave to appeal against her interdict ruling to stop construction on the River Club redevelopment, which was delivered on the 17th of March 2022. The LLPT was joined by the Western Cape Government, the City of Cape Town and the majority of Cape Khoi Peninsula leaders who have formed the Western Cape First Nations Collective (WCFNC) and who also filed leave to appeal against her ruling.
While Deputy Judge Goliath has reserved judgment, the LLPT believes that it is important to communicate on the fact that the two applicants, Prof Leslie London and Mr Tauriq Jenkins have taken steps over the past week that have revealed that they are quite happy to abandon the First Nations groups whose interests they have claimed to protect in order to further their own self-interested agenda.
In short, they have proposed to abandon any consultation with First Nations groups that they have alleged were excluded from previous consultations during the development approval processes on the River Club redevelopment in an attempt to stall court proceedings in the hope that the project will be halted for good.
Last week, two days before Deputy Judge Goliath was due to hear arguments for granting leave to appeal against her interdict ruling, the applicant’s lawyers wrote to all the respondents requesting that they agree to abandon paragraph 145.1 (a) of Judge Goliath’s order, which interdicted the LLPT from continuing with construction until it had concluded meaningful consultation and engagement with all affected First Nations Peoples as envisaged in the interim and final comments of Heritage Western Cape (HWC) during the environmental authorisation process. They proposed that this be replaced with a conciliation process in terms of section 17 (3) of the National Environmental Management Act (NEMA). This is despite the fact that the applicants have to date not been able to provide a list of First Nations groups who have a legitimate claim over the intangible heritage of the site and who have been excluded from previous consultation processes.
Outrageously, they also requested that while this conciliation process is underway, the interdict should remain in place and that all the respondents withdraw their appeal against the interdict judgment. Their letter also included the threat that if the respondents refused this proposal (having been given 24 hours to respond), the applicants would move ahead with the notice to abandon 145.1 (a) of the interdict order.
It was clear to all the respondents that this was nothing more than a cynical attempt to stall legal proceedings and they rejected the proposal for the following reasons. Any consultation after the conclusion of the environmental authorisation process that granted approval for the redevelopment would have no validity until the applicants’ review proceedings have been concluded and that court makes its ruling on this process. Furthermore, all the respondents have argued in their appeal papers that the allegation of excluded First Nations groups are false and the applicants have failed to demonstrate (i) any intangible cultural heritage resource which had not been identified and assessed by the respective decision-makers; and (ii) the inadequacy of the wide-ranging protection mechanisms included in the respective conditions of approval of the redevelopment.
Inconceivably, the applicants then proceeded with a notice to abandon 145.1 (a) of the interdict ruling, in other words to do away with the order to consult with the First Nations groups they claim weren’t consulted in the past.
It is absolutely clear from this move that they have no interest in the upliftment of First Nations People they claim to represent as well as the interests of all Capetonians who stand to benefit from the economic and social benefits the redevelopment will bring.
This includes the 6000 direct and 19 000 indirect jobs that will be delivered (including the 750 construction workers who were sent home when the interdict ruling was delivered) and the Cape Peninsula Khoi who plan to manifest their intangible cultural heritage associated with the area, including the establishment of a Heritage, Cultural and Media Centre.
The project will also include the provision of developer subsidised inclusionary housing, safe and accessible green parks and gardens that will be open to the public and the major rehabilitation of the polluted and degraded waterways adjacent to the property, including the Liesbeek River, into a beautiful naturalised riverine environment.
While the applicants continue to do whatever they can to halt this word class project the LLPT awaits the decision on whether leave to appeal the interdict order will be granted.