We Go to Court!

2 AUG 2021 — 

Press Release – Monday 2 August 2021:

Goringhaicona Khoi-Khoin Indigenous Traditional Council and Observatory Civic Association serve notice on the Liesbeek Leisure Property Trust and the City of Cape Town and Western Cape government departments that have approved the River Club redevelopment

Today, the Cape Town High Court issued our papers to serve notice on the Liesbeek Leisure Property Trust (LLPT). The notice is for an urgent interdict to halt construction work on the redevelopment of the River Club in Observatory, Cape Town. Alongside the interdict, is a notice for a High Court Review of the decisions to approve the redevelopment taken by the City of Cape Town and the Western Cape Government Department of Environmental Affairs and Development Planning (DEADP).

Now is the time for financial support to Make the Liesbeek Matter – please donate, no matter how little or how much, to help us win this case.

The application was made jointly by the Observatory Civic Association (OCA) and the Goringhaicona Khoi Khoin Indigenous Traditional Council (GKKTC) after every effort to seek a fair and impartial administrative process has failed. Our objections, supported by well-reasoned evidence, have been discarded in the rush to allow Amazon to set up Headquarters on the Liesbeek River – in a sacred floodplain that should be a heritage precinct.

We are therefore heading to court to prevent the wanton and baseless destruction of the intangible heritage of the Liesbeek Riverine Valley and the environmental harms inherent in this redevelopment. In this, we are not alone. We have more than 56 000 supporters on our petition website, more than 60 organisations backing Heritage Grading for the Two Rivers Urban Park, encompassing the River Club, and support from multiple professionals who are equally scandalised that the redevelopment could have been approved contrary to all planning, environmental and heritage considerations.

Our application is consistent with the concerns expressed by professional scientists within the City’s own Environmental Management Division over climate, environmental and heritage breaches, as well as with Heritage Western Cape declaring the Environmental Authorisation unlawful.

Our interdict application is supported by key affidavits from:

1.    Tauriq Jenkins, the High Commissioner of the Goringhaiconoa Khoi Khoi Traditional Council who provides an overview of the cosmology of the Goringhaicona Khoi Khoin and related Indigenous Peoples, explains the enormous importance of the site and its associated living heritage to Indigenous Peoples, and the basis for the opposition to the redevelopment expressed by a wide range of indigenous groups. He outlines why landscapes have a spiritual dimension for the Khoi and why “Our sense of self is so intimately connected with the land, rivers, stars, and animals and the cosmos as a whole that they could be characterized as interconnected and inalienable parts of the self.”

The consequences of allowing the proposed redevelopment to proceed without an adequate consideration of the heritage impacts, particularly for Indigenous Peoples is therefore devastating. He provides evidence why the Heritage Impact Assessment (HIA) process followed for the proposed development failed to take adequate account of the intangible heritage associated with the site and sought to denigrate the Goringhaicona and distort history. His affidavit confirms that the range of First Nation groups who are vehemently opposed to the development are substantial.

2.    Leslie London, chair of the Observatory Civic Association (OCA), outlined why the OCA is taking up this matter. The OCA believe that this redevelopment will result in a permanent and irreversible loss of a valuable heritage resource and that DEADP and the Minister usurped the competent heritage authority, Heritage Western Cape, in granting the Environmental Authorisation. The developers abandoned an earlier Heritage Impact Assessment which identified heritage indicators which would have limited the scale of development permitted on the site. The developers found an anomalously sympathetic heritage assessment to replace it, one which provided the developers with the justification for their massive development on a sensitive floodplain. Notably, this entire floodplain area has been proposed by Heritage Western Cape for national heritage status, a fact that the developers have avoiding recognising.

3.    Bridget O’Donoghue, a heritage practitioner who was employed to conduct the baseline Heritage Impact Assessment for the River Club confirms in her affidavit the importance of intangible heritage in South African heritage law and practice, and explains why the law requires intangible heritage resources and the potential impacts of development on such resources need to be properly identified and assessed in a HIA. Furthermore, the assessment of potential negative impacts to the significant site context was not fully considered.

She points out that the developer’s HIA for the River Club does not fully identify and assess the nature of what qualifies as a “heritage resource” and, therefore, does not meet what is required of an HIA under the law. She points out that “places of cultural significance”, “landscapes of cultural significances” and “places associated with living heritage” are not fully assessed in the HIA, which concludes that “there are no heritage resources on the site that require intervention.” This is contradictory to numerous earlier heritage studies and contrary to the clear links made by a wide range of Khoi and First Nations groups and individuals of the site to oral history, popular memory, living heritage, and indigenous knowledge systems. She concludes by confirming she agrees with the critique of the HIA by Heritage Western Cape, which stated “The HIA fails to assess the impact of the development on the most important heritage resource: the site’s open, green qualities as a remnant of a landscape that has considerable intangible historic and cultural heritage significance.”

4.    Diedre Prins-Solani, an Education, Culture and Heritage practitioner with expertise in intangible heritage recognised by UNESCO, explains, in her affidavit, the nature of intangible heritage and how the 2003 UNESCO Convention on Intangible Cultural Heritage are reflected in our National Heritage Resources Act and provide guidance for best practice. She states “All levels of government, from national to local, regard intangible heritage as an irrevocable and critical element of the National Estate.”

She points out how the LLPT HIA failed to develop an inventory of communities to shape the HIA and to recognise how “colonial and apartheid histories of South Africa have disrupted conditions for many living heritage practices.” She states “There is no evidence of a systematic identification and documentation of living heritage associated with the site.” She concurs with Heritage Western Cape’s comments on the HIA and points out that disaggregation of the development site results in significance being lost and coherence being ignored. “The focus on the river course way as the only site of significance erases the relationship between land and people and living heritage.” She concludes that HWC’s rejection of the HIA was correct under law and argues that a new HIA must be undertaken which adequately identifies living heritage related to the site.

The Notice of Motion we put to the High Court includes an application to review and set aside the Environmental Authorisation and the rejection of our Appeal by DEADP and the rezoning and the rejection of our Appeal by the City of Cape Town; to effect this review, we also seek an urgent interdict to prevent LLPT from undertaking any construction, earthworks or other works whilst the Review is in process. The date for the interdict to be heard has been set down for the 16th of August 2021. Numerous letters of support for our High Court Interdict are available on the OCA Website.

This is the time to Make the Liesbeek Matter!