Judgment reserved in River Club case

AMAZON’S withdrawal from the controversial River Club development could ’rob’ Cape Town of a R7.4 billion injection to its ’ailing’ economy, while the Khoi and San argued that their heritage was not up for sale.

These were among the myriad arguments presented before Western Cape High Court deputy judge president Patricia Goliath during a three-day marathon sitting to hear an application to halt further construction of what is to be tech giant Amazon’s African headquarters.

The urgent application was brought by the Observatory Civic Association (OCA) and the Goringhaicona Khoi Khoin Indigenous Traditional Council (GKKITC) against the developers, the Liesbeek Leisure Properties Trust (LLPT), the City of Cape Town, the Western Cape government and other entities.

The land, at the confluence of the Black and Liesbeek Rivers, is regarded as sacred by the Khoi and San people and those opposed to the development said it would alter the site’s fundamental qualities including intangible historic and cultural significance.

The Goringhaicona also viewed the area as ground zero for “colonial land dispossession” in South Africa.

The developers, told the court that should an interim relief be granted, this would result in a delay of between one and two years.

“Any such delay would most certainly see Amazon terminating the development and lease agreements. Even a reduced delay of six months will result in termination by Amazon,” the court was told.

However, the OCA hit back and said the economic fallout from the granting of a relief was “exaggerated, overstated and speculative”.

Legal representatives for the City argued that the development would create more than 5 000 direct and more than 13000 indirect jobs.

It further argued that the development might increase economic output by R7.4bn over a period of about three to five years.

“The City is facing an economic crisis due to Covid-19 and the delay will terminate the development. Integral to the development will be affordable housing,” the court was told.

In an affidavit by OCA chairperson Professor Leslie London, the organisation said Amazon was committed to commissioning the development of a campus as its regional headquarters and if it was not built on the River Club site, it could go ahead on one of a number of suitable sites in Cape Town.

“I am informed that a number of developers proposed more than one site when Amazon issued a Request for Proposal in 2018. Some of the sites included the V&A Waterfront and Century City,” said London.

He submitted that despite being aware of the impending reviews, written requests to hold off development until the review of the environmental authorisation and land use approval, and being aware of the sensitivity of the living heritage issues involved, the developers “unilaterally” forged ahead with excavation and construction.

In court papers, LLPT trustee Jody Aufrichtig submitted that Amazon received a number of bids and there “could be little doubt” that alternate opportunities would be offered or the e-commerce giant would negotiate fresh leases in its existing premises across the country.

Aufrichtig said the move would also have financial consequences for LLPT which had financial agreements with Rand Merchant Bank as well as commitments to the First Nations.

The group, also of Khoi and San people, supports the development and believes it has secured a space where the indigenous people’s culture and heritage would be memorialised.

The mega development consists of 18 major buildings, some of which are about 45m high. The LLPT intends leasing 150 000m² of floor space to Amazon and also intends to construct housing and other facilities.

The court heard submissions on the protection of the intangible heritage of indigenous peoples under international law. The Forest Peoples Programme, an international NGO that fights for the rights of indigenous peoples, was admitted as a friend of the court.

The arguments also centred on the adequacy and extent of meaningful consultation of all interested and affected parties.

Lawyers for the applicants framed their arguments on the country’s history. “Our country is built upon centuries-long, shameful brutality towards the first nation and indigenous people.

“Most importantly for this case, the brutality towards the First Nation and indigenous people has been aimed at dispossessing them of their identity and dignity.

“All of this has been in the quest for development and exploitation of the country’s resources, a quest over time aimed at enriching and privileging one racial grouping at the expense of all others,” the applicants submitted.

The lawyers also submitted that for their survival as Khoi or San communities they could therefore only look to sections 30 and 31 of the Constitution for the protection and retention of their dignity and sense of identity.

“That is why this case is so important. It is common cause that it concerns living heritage associated with a natural cultural landscape,” the court was told.

“The upshot of the development application process is that the First Nations groupings have successfully been divided and their fate is now left in the hands of the developers, not their own hands,” the court heard.

Outside court, First Nations spokesperson Zenzile Khoisan said he was optimistic about the court’s decision.

“For the first time, we’ve secured a space in the development where our culture and heritage will be memorialised for future generations,” Khoisan said.

The GKKITC spokesperson, Tauriq Jenkins, said he was happy with evidence submitted in court.

“Our message is clear, and will remain so. Our heritage is not for sale, not even to the richest man in the world.”

Judgment in the matter has been reserved.