On the 14 April 2020, after almost two years, the Ministerial Appeal Tribunal considering the appeal by the River Club Developers, supported by the City of Cape Town, and two provincial departments (DEADP and DTPW) came to a thunderous conclusion – that the Appeal had no merit and that the HWC decision “to provisionally protect the resource in terms of section 29 of the NHRA is upheld and shall remain in force. The appeal is therefore dismissed.”
In dismissing the appeal, the Tribunal directive dissected each of the Appellants arguments and carefully rebutted them. For example, the “effect of delaying development somewhat” was described as a “small price to pay, considering the benefits and gains of conducting a proper heritage assessment of the conservation needs and investigating the protection of heritage resources.” The developers referred to a case involving the Arniston Hotel but the Tribunal rejected its relevance since that case “did not feature any of the traditionally sensitive issues involving conservation of cultural heritage of the Indigenous First Nation’s community” nor did the appellants present “cogent arguments” related to any adverse consequence arising from the provisional protection. Lastly, one of the key arguments by the Appellants was that there was already a process under Section 38 of the National Heritage Resources Act which should preclude any provisional protection (under Section 29 of the National Heritage Resources Act) because a parallel process would be a fruitless duplication of functions and wasteful expenditure. The Tribunal found there was no merit in this argument – in law, one process does preclude another.
So, the Tribunal came down firmly in support of recognising the very high heritage significance of the site and for the need to investigate prior to any development decisions being made. It also recognised that, despite its shortcomings, the processes gave First Nation peoples and communities a voice to articulate their case for heritage conservation and protection for the first time. It is thus indeed an historic ruling in the history of our country.
The Tribunal directive also noted how “political posturing” and “alliances” involving different government and municipal entities and the developers had soured the process. It drew attention to the fact that some public officials “did not serve the interests of their departments, the CoCT or the public interest and their conduct warrants review and censure, where appropriate.” Scarce resources, the directive said, should be used to “cooperatively solve complicated heritage issues cooperatively” which did not occur. It also made reference to the divide and rule tactics at play in the process.
These are all very powerful statements and we hope this will be lesson to all concerned and more specifically those holding public office and those with resources to spend on endless legal obstruction, that justice will win in the end. We live in a Constitutional democracy which allows for all views to be put on the table, but not for some to count more than others because of better access to power or money.
During COVID-19, it’s a time of deep introspection about what we are as a society and how we unite to solve common problems. Let’s hope this spirit continues after the COVID-19 restrictions are eased so that we can resolve the heritage challenges related to TRUP and the River Club in the same spirit.
Leslie London – OCA Chair
Read the full Document below
River Club Ruling 14 April 2020