Our Constitution stands up to the Test again – Judge Goliath dismisses leave to appeal on the River Club interdict
Today Judge Goliath issued another clear and firm judgement that reflects the primacy of our Constitution in determining the validity of administrative decisions.

She 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 judgement interdicting any further construction at the River Club pending conclusion of the High Court Review and the undertaking of meaningful consultation. She considered all of their 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 their leave to appeal.

The respondents also claimed that the interdict was effectively a measure that created a final decision before the review process could happen, which would render the interdict appealable. She 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 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 Senior Counsel Advocate 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.

Issued on behalf of the OCA and the Gorinhaicona

See the full ruling here