Tauriq Jenkins’ application comes shortly after the Western Cape High Court – in a case that had been filed with the Supreme Court of Appeal and later returned to the high court – ruled that the development, by the Liesbeek Leisure Property Trust (LLPT), was to go ahead after being in limbo for months as the fiery legal battle continued. The Observatory Civic Association (OCA) was ordered to pay the costs of the LLPT. 

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“From our side, we are very disappointed with the result, because it ostensibly allows the development to continue construction while the review process is going to be undertaken. 

“The reason we applied for the interim interdict was so that we wouldn’t land with the challenge of having the building at a point where they would have concretised themselves into an inflatable position,” Jenkins told Daily Maverick. 

The development had previously been halted after Deputy Judge Patricia Goliath ruled that consultation with the group had been insufficient. But  the high court overturned the halt to the construction of the development, claiming Jenkins had acted fraudulently in gaining the urgent interdict that saw the construction of the LLPT building come to a pause. 

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Court papers and the ruling show that some members of the GKKITC said they had not given Jenkins the authority to pursue the case legally in their name, while another said he had been made to sign forms he did not quite comprehend. Others also claimed to not know or ever have met Jenkins. 

The LLPT said in a statement that they welcomed the judgment, adding that it was a major win for all Capetonians who would benefit from the R4.6-billion project. According to the LLPT, the development will also house, alongside Amazon’s headquarters, a cultural, heritage and media centre, a memorial centre for the Cape Khoi, as well gardens and parks. 

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Some of the First Nations had agreed to the development because of the memorial centre, while others such as the GKKITC had opposed the development on the grounds that the area is of intangible heritage and should not be destroyed.

The OCA and GKKITC said in a statement that the court not allowing Jenkins to file a late affidavit of 1,500 pages, alongside the postponement of proceedings, influenced what the organisations have called an unreasonable judgment and one that failed to use the court’s discretion, adding that it misdirected the facts of the court. 

The River Club, where the development is currently being constructed, sits at the confluence of the Black and Liesbeek rivers – an area considered sacred by the First Nation people, as a result of the Battle of the Gorinhaiqua, which saw the Khoi group kill the Portuguese Viceroy Francisco de Almeida, who had raided the First Nations’ cattle. 

Despite a ruling that granted an urgent interdict and demanded an end to construction, the developer continued to construct on the grounds that the appeal that they had filed had yet to be ruled on. 

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“Our viewpoint on what is heritage and what is development is in deep contrast, I think, to an indigenous knowledge interpretation of space and time. I think the heritage component held in Judge Goliath’s [judgment] seems to have been eviscerated in that sense.

“I fully respect our courts … and I believe that our courts will still play a significant role in bringing this forward to its rightful place,” Jenkins said. 

As the OCA and GKKITC await a date for their appeal, Jenkins said, without undermining the gravity of the last ruling, that the victory was celebrated too soon as the review court proceedings were still ahead. 

The review proceedings will see the two sides battle over the environmental approvals by the City of Cape Town and the heritage impact assessment approvals by the Western Cape provincial government. 

Said the two groups in a statement: “As a unified campaign, we will continue the fight for recognition of the heritage significance of the site, which is currently being considered for protection by Sahra. And we will continue to fight for indigenous voices to be heard, those many voices that have not been co-opted by corporations.” DM/OBP