The article “First Nations group opposed to Amazon headquarters project appeals recent court judgment” (Daily Maverick, 7 December 2022) refers.

The article contains a number of inaccuracies, most notably the insinuation that Tauriq Jenkins still represents the Goringhaicona Khoi Khoin Traditional Council (GKKITC) and has launched a leave to appeal application against the recent ruling by a full bench of the Western Cape High Court, in his capacity as the high commissioner of this group.

While the article states that this ruling found that “some” members of the GKKITC said they had not given Jenkins the authority to pursue the case legally in their name, the court’s finding is far more serious than that.

Three high court judges ruled that Jenkins was not the duly authorised representatives of the GKKITC. They also found that he committed fraud during the interdict appeal court hearing due to misrepresentations, including claiming to have spoken to senior leaders of the First Nations who he claimed were against the development, which was simply not the case.

The GKKITC has formally withdrawn from the legal review proceedings and as such the reference to the “two sides” in the battle is also flawed. The fact is that there is one side made up of 1) the elders of the GKKITC and 2) the vast tribes and councils of the First Nations comprising:

• The Western Cape First Nations Collective (WCFNC) is a conglomerate of Khoi and San First Nations Peoples represented by the following councils: Gorinhaiqua; Gorachouqua; Cochoqua; the Korana; the Griqua Royal Houses; the San Royal House of Niin=e, and the Bushmen under leadership of Oom Petrus Vaalbooi and other leaders who have a long working history with the WCFNC; and all other indigenous structures that support the FNC under full cultural protocols; and
• The following are included in these indigenous structures: First Nations cultural institutions, houses and associations, including those specifically described as cultural councils and tribal houses that form part of The National Khoi and San Council (NKSC); the Khoi Cultural Heritage Development Council (KCHDC); the Institute for the Restoration of Aboriginal South Africans (IRASA); the Foundation Nation Restoration (FNR); and the Cape Khoisan Labour Forum (CKLF).

All these groups are in support of the development and the decisions of the City and the province to approve the development. On the other side, the only applicant is the resident Observatory Civic Association (OCA), led by Leslie London and supported by Jenkins.

Another misstatement by the OCA and Jenkins, stated in the article, is the claim made by Jenkins about the “late” filing of his affidavit in the interdict appeal court matter. In fact, he simply failed to file an affidavit. What he purportedly did was provide a loose-leaf pack of pages with thousands of pages of annexures on the day of court to the court registrar, claiming this was his affidavit. We can only surmise this was a delaying tactic in the hope that the matter would be postponed.

Read in Daily Maverick: “Amazon HQ gets go-ahead after judges issue scathing ruling against activist ‘determined to stop development at all costs’”

Bearing in mind that Jenkins was legally represented (at least insofar as he was the face of the GKKITC at the material time) in the interdict and review application from the institution of the application in early August 2021 and until 22 September 2022 when his attorney, Cormac Cullinan, delivered his notice of withdrawal.

Construction on development of Amazon Africa’s headquarters at the River Club in Cape Town was halted after a high court decision. (Photo: Gallo Images / Die Burger / Jaco Marais)

Most pertinently, Cullinan was on record for the OCA and the GKKITC in the full court appeal on 11 August 2022 when the judge president with all parties (including Jenkins) issued his directions, and that remained the position until 22 September 2022 (about six weeks after the meeting with the judge president) when Cullinan delivered his notice of withdrawal. It therefore rings hollow that Jenkins claims that the indulgence he was afforded to deliver an answering affidavit in the rescission application was something upon which he could not seek legal advice at any time from 27 July 2022 (when he was before Fortuin J) until 22 September this year, at the very least.

After asking for an explanation for this disrespectful conduct, the court refused to grant a postponement or condonation for not filing. He nevertheless delivered oral arguments in court using his papers.

On the basis of his oral testimony, the full bench found in their judgment that “Jenkins was determined to stop the development at all costs. He therefore fabricated a constitution to suit his objective and betrayed the trust others had in him.”

It is also difficult to make sense of the following statement in the news article: “Our [which we assume means Jenkins and the OCA] 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 Goliath’s judgment seems to have been eviscerated in that sense.” Especially as the OCA and Jenkins themselves abandoned Judge Patricia Goliath’s order for more consultation with First Nations groups, who they claim weren’t consulted during the development approval processes.

It is also important to ensure that historical information placed in the public domain is accurate. For example, the ongoing claims of the OCA and Jenkins that the River Club area was the battleground where the First Nations defeated the Portuguese soldiers under Francisco D’Almeida is not true.

Visit Daily Maverick’s home page for more news, analysis and investigations

A number of independent Heritage Impact Assessments (HIAs) undertaken on the site as well as the broader Two Rivers area have concluded that this battle more than likely took place in the Salt River area.

According to the Goringhaiqua, the 1510 skirmish between De Almeida and the Goringhaiqua began in what is now the modern-day Pinelands, although it ended on the shores of what is broadly referred to as Table Bay beach. To date, Jenkins and the OCA have produced no tangible evidence that shows otherwise, yet they continue to fallaciously ascribe the significance of this battle to the so-called intangible heritage of the River Club site.

Their claims that the site is currently being considered by the South African Heritage Resources Agency (SAHRA) for protection is very misleading. The SAHRA has publicly stated that it cannot rely on the views of the OCA and Jenkins alone and needs to consider, among other considerations, the court rulings and proceedings still under way. Furthermore, contrary to the claims by the OCA and Jenkins, the SAHRA investigation cannot alter the environmental authorisations and development approvals granted by the City and provincial authorities, which makes the current development on the site lawful.

Read in Daily Maverick: “Challenge over leadership of GKKITC adds to River Club construction court delays”

What is perhaps most insulting is their claim that they continue to be the voice of First Nations that have not been “co-opted by corporations”. This is incredibly paternalistic and insulting to the majority of First Nations Khoi and San leaders who have used their own voices to participate in the development planning process.

Construction has been halted at the River Club development in Observatory following a ruling by Deputy Judge President Patricia Goliath. (Photo: Gallo Images / Brenton Geach)

Ironically, it is in fact Jenkins who has been found by a full bench of the Western Cape High Court to have fraudulently co-opted the voices of the GKKITC elders and other indigenous leaders in order to pursue his own self-interested agenda against the project.

The Liesbeek Leisure Properties Trust remains committed to delivering the world-class development that will celebrate the intangible heritage associated with the broader area and will provide a range of socioeconomic benefits to surrounding communities including developer-subsidised inclusive housing, publicly accessible green spaces as well as more than 6,000 direct and 19,000 indirect jobs. DM