Comment on application for leave to appeal against the interdict on the construction at the River Club redevelopment

11 April 2022 

We note that the LLPT, the City, DEADP and the FNC have filed for leave to appeal Judge Goliath’s ground-breaking interdict regarding the River Club re-development. The judgement was historic because it recognised that “this matter ultimately concerns the rights of indigenous peoples” and economic benefits “can never override the fundamental rights of First Nations Peoples.”

We believe that 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. Our case that there was irreparable harm to cultural and heritage resources should the development proceed, an argument we have been making throughout the process, but which has been strenuously ignored by the authorities, was 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, the values underlying it and the State’s obligations to First Nations groupings under international law, 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.

In rejecting meaningful consultation, the respondents appear to be happy with the butchering of the original Liesbeek River course and desecration of a sacred floodplain. Let us remind them, this heritage is not for sale. It is part of the national estate and deserves full protection rather than barbarous destruction. Why is the City and Province pursuing this defence of a private development with public money? How many houses could have been built and how many jobs created for our people with these millions? Wasteful and frivolous expenditure is surely a sign of poor leadership and accountability.

It will not be the first time that government departments have sided with the developers to block the protection of the heritage resources on this site. In 2018, the City and DEADP sided with the LLPT in opposing the heritage protection of this site, when Heritage Western Cape issued a Provisional Protection order over the site, intended to grade the site as a Provincial Heritage Resource.

They lost that appeal. The final directive issued by the Appeal Tribunal issued in April 2020 noted how “conservation efforts to preserve the heritage of the Indigenous First Nations' people and communities and protect their cultural rights, have been hamstrung by the politics of divide and rule” and lamented the fact that government officials were seen to ally with developers, “instead of aligning the scarce resources, with experience skills and expertise to cooperatively solve complicated heritage issues cooperatively, internally, and in good faith.”

If the developers and the authorities had listened to the Khoi leaders raising their concerns at the time, we would not be in the current situation. In 2018, Chief Autshumao Mackenzie appealed to the authorities: “if you look at the beach, Green Point, the building of the concrete, even the sea has been culled. This is a plea, truly, for us to have open spaces. Not a closed private beach where you can’t even see the mountain. It’s sacrilege. This is the call of the spiritual people. We’ve exactly been killed, decimated because of our spirituality, our humanity. We want to say let’s retain part of this land that makes sense...”

These are the voices that have been excluded from decision-making. These are the voices Judge Goliath realised must have a say in the planning decisions. We do not believe she will grant leave to appeal and deny the numerous indigenous voices, groups and organisations including those represented by Paramount Chief Fredericks of the !Aman Traditional Council, Paramount Chief Johannes of the Cochoqua Traditional Authority, Kaptein Witbooi of the !Khowese Nama, Paramount Chief Sedas Kleinschmidt of the National IXam Bushman Council, Paramount Chief Aran of the Goringhaicona Khoi Khoin Traditional and Indigenous Council, B’ia Bradly Van Sitters of the Gorachoqua Cultural Council, Gaob F'im of the First Indigenous Nation of Southern Africa, AIXARRA Restorative Justice Forum, Western Cape Khoi and San Legislative Council, Khoi and San Kingdom Council of Southern Africa, and 74 000 others from civil society, civics, environmental groups, residents, and citizens, to get a chance to see the living heritage of the site restored.

Issued by Nadine Dirks, Campaign Coordinator, Liesbeek Action Campaign, 11 April 2022