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River Club’s court clash

  • High Court to hear contempt of court arguments against River Club directors next week
  • Developers have resumed construction despite High Court order to stop all work until a review of government’s authorisations is heard
  • Development opposition leader Tauriq Jenkins’ leadership of the Goringhaicona challenged

The contempt of court case against company directors behind the contentious R4,5bn Amazon-tenanted River Club development, for resuming construction at the site despite a High Court interdict to stop work, was postponed yet again at the Western Cape High Court yesterday afternoon. (subs: Wed)

However, a related case in which a leader within the First Nations Collective, a Khoi grouping aligned with the River Club developers, sought to discredit a Khoi leader opposing the River Club development, was dismissed by the court earlier the same day.

As these matters were being heard, about 200 people supporting the developers demonstrated outside the court. Alongside them were about 70 people opposing the development. A handful of police kept watch.

Verbal and near-physical clashes such as those witnessed on 12 July at the first hearing of the contempt of court case when loud hailers were used to belittle and curse those opposing the development, were avoided yesterday as the more volatile First Nations Collective appeared to hold themselves in check.

By lunchtime, the First Nations Collective supporting the development packed up and left. Those in opposition remained on the court steps, keeping themselves occupied by burning imphepho, chanting and singing while Judge Chantel Fortuin heard arguments over the application by the Observatory Civic Association and the Goringhaicona Khoi Khoin Indigenous Traditional Council for the developers to held in contempt of court, in their personal capacity.

The developers are Jody Aufrichtig, James Tannenberger, Nicholas Ferguson, Allan Mundell, and Adam Blow. All with the exception of Mundell who is a financial advisor, are directors in multiple ventures and development companies, with Liesbeek Leisure Properties and Zenprop in common.

Liesbeek Leisure Properties Trust was first brought to court in November last year by the Observatory Civic Association (OCA) and Goringhaicona Khoi Khoin Indigenous Traditional Council (GKKITC) when they successfully applied for an interdict to halt building on the site pending a review of procedural decisions taken by the City of Cape Town and relevant provincial planning departments.

After initial delays in obtaining a court date, the interdict was granted by Deputy Judge President Patricia Goliath on 20 March.

The large mixed use development which includes multiple buildings up to eight-storeys high and will include new African headquarters for Amazon web services, is being built on a floodplain at the confluence of the Liesbeek and Black Rivers in Observatory.

That the site is sacred to the First Nations, is uncontested. The heritage assessment report compiled as part of the required environmental assessment for the development, situated it as the site of original colonial dispossession, as the Dutch settlers displaced the Khoi from their traditional grazing lands along the banks of the Liesbeek.

In the face of years of opposition through the planning phases of the development, the City and provincial departments passed the various procedural requirements, being environmental authorisation, and rezoning and departure permissions. These were appealed, to no avail.

When LLPT got their water use license to infill part of the original course of the Liesbeek River on 26 July 2021, they started building, until being ordered by the High Court in March to stop, pending a review of decisions. Chief among these is the province granting environmental authorisation despite Heritage Western Cape having rejected the Heritage Impact Assessment which formed part of the required Environmental Impact Assessment.

LLPT then appealed Judge Goliath’s interdict in the High Court, and lost, with Judge Goliath reiterating her initial ruling. The developers then filed an appeal at the Supreme Court of Appeal, which is yet to be heard, and resumed work resumed on site thereafter, around 27 June.

The developers argue that the Supreme Court appeal supersedes Goliath’s High Court ruling, their lawyers stating Goliath’s order was final in effect, and not interlocutory.

Disagreeing, the OCA and GKKITC on 8 July applied to the High Court on an urgent basis, asking the court to enforce Judge Goliath’s order until the contempt of court matter could be heard. After an initial court appearance on 12 July, it was agreed the matter would be heard on 27 July. But when a judge had not been appointed by Judge President John Hlope by the morning of Friday 22 July, the OCA and GKKITC again approached the court on an urgent basis, resulting in yesterday’s hearing before Judge Fortuin. Assigned to urgent matters, including the 549-page application against GKKITC supreme high commissioner Tauriq Jenkins filed by supporters of the development, she stated she could not hear the merits of the case as she had not had time to read the papers.

Fortuin said she recognised the urgency of the matter and suggested the merits of the case be argued next week. She was inclined to order the developers to halt any further work on site in the meantime, which Peter Hathorn SC for the OCA and GKKITC urged she had the constitutional right to do. However, Sean Rosenburg SC, representing Aufrichtig, argued that OCA and GKKITC at the previous appearance on 12 July, had waived their application for an order to halt work on the site with the agreement the full matter would be heard yesterday, thus it wasn’t before her as a decision. Rosenberg held sway as Judge Fortuin agreed the merits of the contempt of court application would be heard next week.

The OCA and GKKITC’s application was under threat of being scuppered by an urgent application from three people purporting to be part of the Goringhaicona tribe aligning themselves with the First Nations Collective seeking to depose GKKITC Jenkins, who has led the case against the developers together with the OCA.

Jenkins said he received the 549-page application on Monday afternoon, less than 24 hours before it was to be heard in the High Court.

With no time to appoint and instruct legal counsel, Jenkins represented himself in court at noon yesterday. Within 90 minutes, Judge Fortuin struck the matter from the urgent roll, leaving the applicants, Michael Hansen, Shiraatz Mohammed, and Peter Ludolph to persist with the application at a later stage.

OCA and GKKITC attorney Hercules Wessels from Cullinan and Associates, said the contempt of court application is now to be heard on 2 August, but has not yet been informed which judge will hear the matter.