Western Cape High Court dismisses Goliath’s judgment and Orders with costs – massive win for jobs and heritage

Main image courtesy of River Club proposed redevelopment project – view of eco corridor

Liesbeek Leisure Properties Trust (LLPT) welcomes the judgment delivered today by a full bench of the Western Cape High Court which dismissed Deputy Judge President Goliath’s judgment and Orders (handed down on 18^th March 2022) to interdict construction of the River Club redevelopment with costs. This is a major win for all Capetonians who stand to benefit from the R4.6 billion project.

The judgment by Judge Baartman (and concurred by Judge Slingers and Judge Lekhuleni) found that the applicants (the OCA and Tauriq Jenkins) failed to establish a prima facie right, as they could not demonstrate that the right to heritage is at risk of suffering any harm, let alone irreparable harm, which is a jurisdictional requirement for an interim interdict. On the contrary, the court papers indicated that the development might enhance the land’s resources having regard to the degraded state of the site when the authorizations were granted. The Court held that “without a prima facie right, the respondents (OCA and Jenkins) never got out of the starting blocks”.

Critically, when applying the balance of convenience requirement for an interim interdict, Judge Baartman in her judgment states the following: “had the court a quo undertaken the enquiry, it would have found the many opportunities for growth the development offers the First Nations Groups; the promotion of the sites heritage value and the opportunities for the unemployed in the Province, to name a few examples, far outweighs the unarticulated harms in the respondents’ case.”

Notably, the judgment also granted the recission application, launched by the elders and members of the GKKTIC, against the entire Goliath DJP judgement and Orders. In their recission papers the GKKTIC elders accused Tauriq Jenkins of misrepresenting facts in the Goliath court hearing and subsequently trying to coerce certain First Nation parties into signing affidavits against their wishes. In her ruling, Judge Baartman stated the following: “am persuaded that the judgment dated 18 March 2022 was induced by fraud. Mr Jenkins misrepresented the first applicants (GKKTIC) Constitution and did not have the authorization to launch the proceedings that culminated in the judgment. He further misrepresented the views of some indigenous leaders without consulting them.”

The Full Bench judgment also rescinds Goliath DJP’s judgment and orders on these grounds.

The judgment has also awarded costs to the appellants against the first respondent, the Observatory Civic Association (OCA). The OCA has been ordered to pay the costs of all the appellants in the court a quo (where the appeal originated from) as well as the SCA case.

The River Club redevelopment will create numerous benefits for the City and the Province. This includes 6000 direct and 19 000 indirect jobs and the Cape Peninsula Khoi memorialising their cultural heritage associated with the area, including the establishment of a Heritage, Cultural and Media Centre. The project will also deliver developer subsidised affordable housing, safe and accessible green parks and gardens, significant road and other infrastructure upgrades in the area and the major rehabilitation of the polluted and degraded waterways adjacent to the property.

This judgment sends a clear message to those who have tried to stop the development at all costs with little or no regard to the social upliftment of surrounding communities, it is therefore with relief that LLPT welcomes today’s judgment, which is clearly in the interests of all Capetonians.