River Club development – objectors miss the mark

OK, so let’s suspend our lay conclusions – as difficult as that may be on the developer’s version – and await the judge’s and the original applicants’ further input to this tussle. I confess to wondering how the judge reached her conclusions if even half the developer’s claims are true. The River Club development is located on a floodplain at the confluence of the Liesbeek and Black rivers. The floodplain plays a vital role in handling stormwater from the catchment of these two rivers (more than 254 km2), which drain the Tygerberg Hills, the north-western parts of the Cape Flats and some of the east-facing slopes of Table Mountain. The development proposes a large number of measures to manage and reduce the effect of stormwater flows. However, there is reportedly broad scientific consensus on the difficulty of predicting the effect of climate change on flooding and therefore the effectiveness of current and future flood-mitigation measures. This may suggest the precautionary principle when considering development here. The objectors, however, seem to be caught up in political correctness. – Chris Bateman

LLPT files leave to appeal against the job killing River Club interdict

The Liesbeek Leisure Properties Trust (LLPT) has filed its application for leave to appeal (papers attached) against the recent judgment and order handed down by Judge President Goliath to interdict construction of the R4.6 billion River Club redevelopment in Observatory, Cape Town.

It is in the interests of justice that leave to appeal be granted, where a decision such as this is final in effect and in substance and where the harm which flows from it is serious, immediate, ongoing and irreparable. If the order remains operable, 6,000 direct and 19,000 indirect jobs will be lost (including the 750 construction workers who were told to go home when the ruling was delivered), at a time when Statistics South Africa’s (Stats SA) quarterly labour survey for the fourth quarter of 2021 recorded a 35.3% official unemployment rate, the highest since the start of the survey in 2008.

This, in turn, will mean that the Cape Peninsula Khoi and their future generations will be deprived of the only feasible prospect of manifesting their intangible cultural heritage associated with the area, thereby endangering transmission of their cultural legacy, including the establishment of a heritage, cultural and media centre in the redevelopment, which will be operated and managed by the First Nations.

The broader community will also lose the significant socio-economic and environmental benefits, which would have flowed, including the provision of developer subsidised inclusionary housing (for those people that otherwise cannot afford to live in this suburb); major upgrades to surrounding roads and safe and accessible green parks and gardens that will be open to the public.

In this regard, it is clear that the Court failed to consider properly, or at all, the evidence that by interdicting the LLPT from carrying out any construction work, the LLPT and the wider community would suffer severe and irreversible harm out of all proportion to that which might be sustained by the applicants, and none was evidenced by them. Given the applicants’ failure 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.

https://theriverclubct.co.za/gallery/

The order is also a violation of well-established legal principles on inadmissible hearsay evidence as the court should not have relied on inferences made by the applicant’s advocate for the first time at the hearing that persons or groups were excluded from the public participation/consultation processes. Especially as Mr Jenkins’ affidavits did not evidence any exclusion, but rather complained that an unsubstantiated list of persons were merely opposed to the development. As a result, the LLPT was not afforded an opportunity to deal with these allegations. LLPT was further denied the opportunity to place facts before the court which would negate the hearsay evidence:

Furthermore, no parties were present in the court hearings and no party filed any affidavit which demonstrated or alleged:

  • that they constitute or represent directly affected communities;
  • their members are bearers of any intangible cultural heritage whose cultural identity or cultural life would allegedly be affected by the proposed development;
  • they did not receive proper notice of the respective authorisation applications; or
  • they were otherwise excluded from any public participation or consultation process.

The LLPT’s appeal also notes that the two applicants, Mr Leslie London (UCT academic and chairperson of the Observatory Civic Association – which has 55 members) and Mr Tauriq Jenkins (the self-proclaimed leader of a voluntary group called the Goringhaicona Khoi Khoin Traditional Council or GKKTC) have no legitimate claim over the intangible heritage over the broader Two Rivers area, of which the River Club comprises 5%, or standing within the First Nations community. However, both of them were provided with an opportunity to submit their comments regarding the proposed redevelopment during the lengthy development approval process. Their comments were responded to and considered by the relevant authorities, who approved the project.

Additionally, even though Mr Jenkins and the GKKTC having no custodianship over the intangible heritage of the area, they were invited to participate in the consultations with First Nations Groups, however, they voluntarily elected to pull out of these processes.

Finally, the allegations made by Mr Jenkins that the social facilitator was a member of the First Nation Collective is completely false. Neither is he a beneficiary of any benefits that the First Nations will derive from the development, nor has he benefited from any procurements related to the River Club. The court denied both LLPT and Mr Arendse the opportunity to defend themselves against this vicious and false character assassination.

For these reasons, we will again ask for an appearance in court to evidence the injustice of allowing these applicants, who have no legitimate standing in the Khoi and San community and who clearly have no interest in the social upliftment of surrounding communities, to block this world-class project and the many critical opportunities it will bring, including much-needed jobs.

Read also:


Comment from BizNews community member David Lipschitz:

Dear Alec, Letter to the editor

What this fails to say is that there are other more appropriate places for this development and its associated jobs. 90% of THRUP has already been developed. The last 10% should be left for the local people as a park to remember their history.

And if there are 10 indigenous groups and 9 are against the development and one is pro the development, then why does the view of the one override the view of the 9?

The 1 is not inconvenienced by this build happening elsewhere. Minority rights are not infringed where the majority can be listened to, without infringing the minority rights.

And this paragraph, which I’ve seen in Australia and elsewhere, is such hogwash. Since when is development more important than preservation?

“This, in turn, will mean that the Cape Peninsula Khoi and their future generations will be deprived of the only feasible prospect of manifesting their intangible cultural heritage associated with the area, thereby endangering transmission of their cultural legacy, including the establishment of a heritage, cultural and media centre in the redevelopment, which will be operated and managed by the First Nations.”

If Amazon wants to build a heritage, cultural and media centre in THRUP, and it is appropriate, then good. But if they want to do it amongst buildings housing 6,000 people then how can that be seen as preserving cultural heritage.

I would far rather that land that local people want preserved is kept, rather than Amazon building on THRUP and then local people demanding my house or other properties that they say were stolen from them.

Stealing more land, especially land with such important, cultural, and historic interests, goes against the grain. And the THRUP natural environment supporters have been against this development for decades, and it isn’t something that just happened. Amazon and its team should have been aware of this especially over the past few years of this debate!

One should note that when someone writes “only feasible” then you know there are objectivity problems. There are multiple interventions in every scenario. There is never only one solution!!

Visited 3,596 times, 2 visit(s) today