Amazon office developer forges ahead with legal fight after court order halts construction

The Liesbeek Leisure Properties Trust (LLPT) lost little time in submitting an application to the Western Cape division of the High Court to appeal last week’s ruling by the same court which stopped the construction of a R4.6 billion office development project in Cape Town – which includes a head office for the US giant Amazon to serve the African continent.

Initially celebrated as a big win for SA that Amazon chose Cape Town for its new regional headquarters, things took a turn for the worse as a handful of activists approached the court for an interdict to prohibit the development by claiming lack of consultation with indigenous people.

The Observatory Civic Association and the Goringhaicona Khoi Khoin Indigenous Traditional Council submitted to the court that the development site is sacred ground and that legislation makes provision to conserve sense of space, rather than only physical artefacts, the natural environment and historic buildings.

The court agreed.

Judge Patricia Goliath noted in her ruling: “This matter ultimately concerns the rights of indigenous peoples. The fundamental right to culture and heritage of indigenous groups, in particularly the Khoi and San First Nations Peoples, are under threat in the absence of proper consultation.”

‘Court erred’

LLPT’s application for leave of appeal against the interim interdict states that the court erred in several aspects and made the wrong ruling.

Most of the paragraphs in the leave to appeal start with the same words, that “the court erred in …”.

A few arguments stand out. LPPT, in particular, rejects claims by the applicants that public participation was lacking and that they were excluded from consultations.

“The Court erred in finding that the impugned authorisations were granted absent of proper and meaningful consultation with all affected First Nations Peoples,” states the application.

LLPT also argues that Observatory Civic Association and Goringhaicona council did not file any affidavits in which they demonstrated that they constitute or represent directly affected communities or that the members of the organisations are bearers of any intangible cultural heritage whose cultural identity or cultural life would allegedly be affected by the proposed development.

The application also states that the organisations failed to provide any proof to back up their allegations that they did not receive proper notice of the respective authorisation applications; or that they were in any way excluded from any of the public participation and consultation processes.

LPPT says 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 that flows from it is serious, immediate, ongoing and irreparable.

In addition to the formal legal proceedings, both the developer and the activists are far from shy about airing their grievances in public.

Developer’s stance

“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,” says LLPT in a press release.

The developer argues in its most recent press release and other communications that it has the backing of the affected communities who approve of the project and the cultural centre that will form part of the project to honour the history and culture of indigenous people.

It says delaying or cancelling the project 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”.

It adds: “The broader community will also lose the significant socio-economic and environmental benefits which would have flowed, including the provision of developer subsidised exclusionary 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.”

The developer criticised the court ruling directly by saying that the interim interdict is in “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.

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

According to a spokesperson for the developer: “The LLPT’s appeal also notes that the two applicants, Leslie London (UCT academic and chairperson of the Observatory Civic Association – which has 55 members) and Tauriq Jenkins (the self-proclaimed leader of a voluntary group called the Goringhaicona Khoi Khoin Traditional Council, 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.”

‘Smear campaign’

Jenkins, High Commissioner of the Goringhaicona Khoi Khoin Traditional Indigenous Council, quickly responded to the application for leave to appeal as well as the developer’s subsequent statements.

“We are of the view that by repeating spurious claims against the Goringhaicona, on matters which have been dealt with in court already, this is an attempt to smear its High Commissioner.

“It is not the first time that the developer, with an all-white board of trustees/directors, arrogates to itself the entitlement to decide who is a legitimate indigenous traditional entity.

“Let the courts decide if this arrogant and colonial attitude of diminishing the Goringhaicona has any credence as evidence; let the courts examine whether the in-filling the Old Liesbeek Channel, and the devastation of the floodplain are heritage and environmental crimes; let the courts examine whether consent can be forced on indigenous peoples,” says Jenkins.

He says the LLPT chose to pursue its development in full knowledge that it would end in court and the judge confirmed that it willingly took on the risk.

“Rather than defer to the court’s review, the developers sought to build themselves into an ‘impregnable position’, a situation which the judge ruled could not be permitted to dictate who would suffer irreparable harm.

“As she stated, economic benefits claimed for a development cannot justify irreparable harm to the heritage and culture of first nation peoples,” says Jenkins.

The grouping disagrees with the developer that jobs will be lost, and on the number of job opportunities that will be created.

“The LLPT claims that thousands of jobs will be lost. We point out that these jobs could and should have been created if proper decision-making processes had been followed, if Amazon had chosen any of the 5 other appropriate sites for their HQ and if they had not leapfrogged the River Club site to the top of the list at the last minute.

“Had any one of those other suitable sites been chosen, Amazon’s HQ would be built by now, creating thousands of jobs, but in a development that was appropriately placed – away from a sensitive floodplain and sacred site.

“It is salutary to note that while claims of 6 000 jobs are frequently bandied about by the developers, they admit that only 750 workers were on site on the 18th March. In our view, the jobs claimed have been grossly exaggerated, for obvious reasons,” says Jenkins.

He accuses LPPT of a smear campaign.

“The Goringhaicona Khoi Khoin Traditional Council (GKKITC) is not a voluntary group but a recognised Indigenous Council.

“To say that they have no legitimate claim over the intangible heritage of the broader Two Rivers area is to negate centuries of attachment to the land, ignore the GKKITC kraal operating in Oude Molen and reduce the matter to a land grab by a selected group of First Nation entities who want to establish an ‘enclave’ for themselves, excluding those who do not agree with the destruction of intangible heritage on site.”

Jenkins says its seems that the LLPT only wants recognition for those Khoi groups who are willing to support the destruction of the intangible heritage of the site “in exchange for what Alan Boesak has described as crumbs from the table of the new colonialists, Amazon”.

Jenkins says that 22 Khoi and San entities have confirmed that they do not support the destruction of the intangible heritage of the site and that 73 000 people have signed a petition to say “no to this greed”.

By Adriaan Kruger

This article first appeared on Moneyweb and was republished with permission. Read the original article here.