A second historic victory: Judge Goliath dismisses leave to appeal the River Club interdict

Dear Obs Residents

In another incredibly significant court decision, Judge Patricia Goliath dismissed the applications by the Liesbeek Leisure Property Trust (LLPT), the City of Cape Town, the Department of Environmental Affairs and Development Planning and the First Nations Collective for leave to appeal her March 18th interdict judgement which had halted any further construction at the River Club pending conclusion of the High Court Review and the undertaking of meaningful consultation. She considered all of the respondents’ arguments and found them “without merit”. Since any appeal would therefore not have any reasonable prospect for a successful outcome at a different court, she turned down leave to appeal.

Amongst the claims made by the LLPT were the idea that new information was introduced at the Interdict hearing which they could not contest, that we (applicants) did not demonstrate what intangible heritage would be irreparably harmed and that no-one was excluded from the consultative process. All of these claim were found to be ‘without merit’.

The respondents who appealed also claimed that the interdict was effectively a measure that created a final decision before the review process could happen. If that was the case, it would render the interdict appealable. Judge Goliath was not persuaded by their arguments regarding the so-called ‘irreparable harm’ to be suffered by the LLPT and the “wider community” or “persons who would otherwise have benefitted from the development, directly or indirectly.” She agreed with our counsel’s arguments that the developer proceeded in full knowledge of the likely court challenge and that there was no compelling evidence of irreparable harm to the respondents, who would have every opportunity to argue their case in the forthcoming review proceedings. She reaffirmed the legal argument that “the protection of the constitutional rights of indigenous groups was a crucial consideration in my finding that the interim interdict was appropriate in the circumstances. I am accordingly satisfied that the intrusion imposed by the interim interdict is mandated by the Constitution itself.”

We believe the significance of this finding reaffirms the strength of our Constitutional Democracy. Government authorities are not above the law and cannot make decisions without public consultation processes that are meaningful, particularly where they impact permanently on the rights of indigenous people.

Moreover, in awarding costs against the respondents, she specifically flagged the point that “Courts are loath to encourage wasteful use of judicial resources and of legal costs by allowing appeals against interim orders that have no final effect.” We ask the City and the Province to explain how our rates and taxes are being used to fund failed legal strategies that have no prospect of success and merely used to bully citizens when they exercise their rights.

We thank our legal team, Cullinans and Associates and our counsel Jane Blomkamp and silk, Alan Dodson, for their steadfast legal work to secure this victory. The environmental, heritage and planning considerations will now be fully examined in the High Court under PAJA without the threat of the developers building themselves literally into an impregnable position with concrete upon concrete on a sacred floodplain.

We remain confident that the courts will find that the decisions to approve the development were invalid and unlawful.

Meanwhile, please remember that we are completely reliant on Crowd Funding to cover our legal costs. If you are able to make a contribution to fund our legal costs– for whatever amount you can – please do so at our fundraising site at https://www.liesbeek.org/donate. Donors outside of South Africa might find it easier to donate via our BackaBuddy site athttps://www.backabuddy.co.za/champion/project/oca-fundraiser.
You will find more information on the campaign at our campaign website. Follow the Liesbeek Action Campaign on twitter: @LiesbeekAction.
Thank you to those who have supported us, whether financially or otherwise, and we hope to see you at our future campaign events.