Leslie London, Observatory Civic Association and Tauriq Jenkins, Goringhaicona Khoi Khoin Indigenous Traditional Council
On April 14 and 20, Southern Suburbs Tatler and Athlone News, respectively, ran a sponsored press statement by the Liesbeek Leisure Property Trust (LLPT) containing multiple mistruths about the River Club redevelopment and the current court challenge led by the Goringhaicona Khoi Khoin Indigenous Traditional Council (GKKITC) and the Observatory Civic Association (OCA).
Now that Judge Patricia Goliath has rejected the LLPT’s application for leave to appeal, it should be clear that the development has been halted for good reason – the threat of irreparable harm to the heritage and cultural rights of indigenous people which cannot be trumped by claims of economic benefits for some.
All the LLPT assertions, such as the assertion that we introduced unsubstantiated claims without their ability to challenge such claims in court, were carefully considered by Judge Goliath and found to be simply “without merit”.
Our interdict was lodged in August 2021, some five working days after construction began at the site. The fact that the judgement has only arrived eight months later is a risk the developer took in commencing construction knowing that the decisions would be challenged in court.
When Judge Goliath rejected leave to appeal, she repeated the observation that if the developers pursued the development, they did so entirely at their own risk.
The economy certainly does need investment. But the Amazon headquarters could have been located at one of the five suitable sites initially shortlisted with full development approvals in place, as planned by Amazon in 2018.
Why the River Club was leapfrogged to the top of a new shortlist of three is something that Amazon might regret. Had they chosen more wisely and had the City and the Province followed their own policies and the advice of their own professionals, Amazon’s HQ might have been completed by now, and all the jobs and investment claimed by LLPT would have been generated elsewhere.
As we know, the City’s environmental scientists appealed the Environmental Authorisation on multiple grounds, because they did not believe such a development was appropriate at this site. Moreover, Heritage Western Cape (HWC), the competent heritage authority for the province, labelled the environmental authorisation “unlawful” because the Heritage study for the development failed to meet the requirements of the National Heritage Resources Act. These are facts that LLPT cannot wish away.
That the LLPT have persuaded some Khoi leaders to support the development is the story of divide and rule that we have seen across South Africa when wealthy corporates encounter local opposition to their plans – Xolobeni is a case in point.
In 2018, First Nation leaders were unified in expressing their view that the development on the sacred site was “intolerable”. Only after the developers employed their own consultant, who produced a toxic report in late 2019, now discredited in Judge Goliath’s interdict ruling, did the First Nations Collective (FNC) appear on the scene to provide support for the development and undermine legitimate Khoi and San opposition.
It is not surprising that the Ministerial Heritage Appeal Tribunal, which convened from 2018 to 2020 over the provisional heritage protection of the River Club, lamented the “politics of divide and rule”, which it saw arising from “alliances” formed by tiers of government with the developers. It was a “policy of maintaining control over one's subordinates or opponents by encouraging dissent between them, thereby preventing them from uniting in opposition”. The LLPT has actively fostered this division.
Among the LLPT’s fabrications are the insinuations that the GKKITC is a voluntary association with no legitimate claims regarding the site, and that High Commissioner Tauriq Jenkins is self-appointed. These statements are not only bizarre but offensive.
That the LLPT can arrogate to itself the right to decide who is a legitimate leader of a Khoi Indigenous Council or which Indigenous Council have claim to any land harks back to the days of apartheid when Bantustan leaders were appointed at the behest of apartheid politicians. Such baaskap behaviour is incompatible with respect for dignity and human rights in a democratic South Africa. It continues the LLPT’s practice of smearing any opponents of the development, including legitimate Khoi and San leaders of 22 traditional councils across South Africa.
As for the claim by the LLPT that the Khoi have no official site of heritage recognition, it’s an odd claim for the LLPT to make given that the LLPT have consistently resisted any efforts by provincial and national heritage authorities to establish exactly that – through grading the site for heritage.
The River Club is a key part of the historical site that was a frontier of resistance by the Khoi to colonial conquest. In 2018, HWC issued a provisional protection order explicitly intended to allow grading of the site to recognise that history.
The LLPT appealed (unsuccessfully) against that order but the appeal contributed to HWC not grading the site. In 2021, the LLPT again refused to cooperate with South African Heritage Resources Agency (SAHRA) on its site visit to initiate a grading process following a recommendation by HWC that the area should be a National Heritage Resource.
Had the LLPT been less obsessed with getting their development approved and concrete in the ground, the site would have been long recognised as a heritage site memorialising Khoi history. Further, the National Khoi and San Liberation Trail, a presidential legacy project, will include the confluence of the Liesbeek and Black Rivers as central to this memorialisation.
Therefore, what the LLPT mean by “hanging in the balance” is not the giving of recognition to Khoi intangible heritage, but simply the progress of their development.
The LLPT wants to decide how the memorialisation of Khoi history can be confined to an “enclave” to be run by their Khoi partners, when the living heritage of the site, which lies it its open space, the connection of the land and riverine valley to views of the mountain and the cultural memory of indigenous people, will be replaced by 150 000 square metres of concrete.
The deal they have struck with the First Nations Collective is not a deal with the Nama, the Cochoqua, the Goringhaicona, the House of Dawid Kruiper, the Goringhiacona, the Korana, the Hessequa, the Gainoqua, the National House of |Xam, and the House of Klaas and David Stuurman, all of whom are traditional Khoi and San authorities who reject the development, as confirmed in court papers.
Rather, it is a deal with 11 individuals, who formed their own company to manage the “enclave” to be established on a sacred site. It is also an undeniable fact that the so-called independent heritage consultant whose report generated the FNC was himself a founding director of this company.
Lastly, the fiction that the Liesbeek River is highly polluted is a misrepresentation that must be finally put to rest. It is the least polluted of all Cape Town’s urban waterways, confirmed in a 2020 study for the City of Cape Town.
Nothing that is done to the 500m of the artificial Liesbeek canal will materially improve the 9km of the Liesbeek Rivercourse nor improve water quality in the severely polluted Black River. However, the infilling of the last remnant of the Liesbeek River, which the LLPT justify on the false basis of it being polluted, is both a heritage crime and an act described by the City’s own environmental managers as resulting “in further degradation of this historic river channel”.