AMAZON KICKED INTO TOUCH
After years of legal ping-pong, the Western Cape High Court has halted further construction of Cape Town’s R4.5bn River Club development. But the matter is unlikely to end there
The constant rumble of trucks bringing concrete and scaffolding to the River Club development in Observatory, Cape Town, has ceased. Cranes stand motionless, and the industry of 750 construction workers, who have built multiple frameworks reaching three storeys over the past nine months, has come to an abrupt halt.
On March 18, Western Cape deputy judge president Patricia Goliath ordered that work be halted on the R4.5bn mega-development, set to house the new regional headquarters of global tech giant Amazon. Her ruling offers a stark warning to developers: they cannot bulldoze through public participation processes and then attempt to build themselves into an unassailable position.
Goliath’s decision may mark the first time a development of this size in SA — on which considerable construction has already taken place
— has been halted by a court pending a review of the environmental authorisation and municipal planning processes.
But advocate Sean Rosenberg, acting for landowner and developer Liesbeek Leisure Properties Trust (LLPT), argued in court that granting the interdict wouldn’t just pause construction; it would also scupper the entire project. Anchor tenant Amazon wouldn’t countenance a delay of up to two years, he said, making it “almost certain” the project itself wouldn’t go ahead.
As such, the LLPT has filed leave to appeal Goliath’s decision.
The City of Cape Town is also expected to appeal, says Cormac Cullinan, lawyer for the Observatory Civic Association (OCA) and the Goringhaicona Khoi Khoin Indigenous Traditional Council (GKKITC), which both oppose the development.
The city, along with two provincial government departments, has consistently backed the development.
In particular, it will benefit from the new bridge over the Black River that’s included in the project.
Work has already started on the bridge, which will connect the industrial area of Ndabeni with Salt River and the city centre. The bridge and the Berkley Road connection to Salt River are to be constructed by the River Club developers in return for development levies being waived, according to the LLPT’s final basic assessment report. That could amount to R73m — the figure mentioned in Goliath’s judgment.
At this stage, the future of the bridge remains unclear: questions to the city about contingency plans for its completion received no response before the FM went to print.
It’s not as if the interdict could have taken the developers entirely by surprise. The OCA and GKKITC notified the LLPT of their intention to seek an interdict last year, and asked that construction be postponed until the matter had been heard in court. Instead, the LLPT opted to push ahead with construction on June 26. In the absence of an interdict, there would be a danger of LLPT building itself into an “impregnable position”.
Goliath’s 80-page judgment found the LLPT hadn’t concluded “meaningful engagement and consultation with all affected First Nations people ”— in this case, a range of Khoi and San traditional and civic structures. Such consultation is required, as the development is on the site of SA’s first colonial land dispossession.
The 14.8ha site at the confluence of the Liesbeek and Black rivers is considered sacred for the Khoi and San peoples. It is there that the Dutch first forced the Khoi from their traditional grazing lands, and it’s near the site of a battle between the Portuguese and the Khoi in 1510 in which Viceroy Francisco de Almeida was defeated and killed.
The site is also part of the Two Rivers Urban Park (TRUP), an area of about 240ha that spans the Black River and includes the SA Astronomical Observatory, Valkenberg psychiatric hospital, Oude Molen eco-village, Maitland gardens and the Alexandra Institute with its historic mill — the oldest of its kind in SA.
TRUP Association chair Marc
Turok says the park was declared in 2003, following a five-year public participation process that involved the numerous landowners and stakeholders within the park boundaries. It was, he says, envisioned as a green lung — Cape Town’s version of New York’s Central Park — with development along the transport corridors surrounding it.
At around the time the LLPT filed its notice of intent to develop River Club in 2016, a year after buying the land from Transnet for R12m, Heritage Western Cape (HWC) was considering
grading the park as a provincial heritage site. This followed a baseline study by the provincial department of transport & public works (DTPW).
In April 2018, as the LLPT was carrying out its preliminary consultation and assessment, HWC — apparently considering the River Club portion of the park to be under threat of development — issued a two-year provisional protection order, preventing any changes from being made to the site.
That order was appealed by the LLPT, backed by legal teams from the city, the DTPW and the provincial department of environmental affairs & development planning.
The OCA, TRUP Association, GKKITC and other First Nations groups sided with HWC.
But at a tribunal hearing in November 2019, it became apparent that the First Nations organisations were no longer united in opposing the development. A new grouping called the First Nations Collective, led by chief Zenzile Khoisan, came out in support of it, saying the LLPT was willing to alter its plans to include aspects of First Nations heritage: Khoi symbolism on buildings and gateways, an indigenous herb garden, an amphitheatre for performances and rituals, a heritage eco-trail, and a cultural and media house run by the First Nations Collective.
Less than a year later, in April 2020, the appeal was struck down by the province’s independent tribunal. In a scathing judgment, it accused the DTPW and the city of “political posturing” in supporting a private developer rather than working with HWC as a fellow state institution.
The fact that the development has substantial economic, infrastructural and public benefits can never override the fundamental rights of First Nations Peoples
Patricia Goliath
Still, the ruling was largely academic: the provisional protection order lapsed just days later without HWC having clarified the site’s heritage status.
That same month, LLPT consultants completed their final basic assessment report and submitted the environmental impact assessment. Environmental authorisation was granted by the provincial director on August 20 2020.
As argued in papers before Goliath, and likely to form part of argument in review proceedings, the authorisation was granted despite the heritage impact section of the environmental assessment not having been accepted by the HWC.
Appeals by HWC, the City of Cape Town’s environmental management department (on the grounds that, for example, the development would be situated on a floodplain), the OCA, GKKITC and others were unsuccessful.
In any event, months before Western Cape environment MEC Anton Bredell dismissed these appeals, the city’s municipal planning tribunal had already given the development the go-ahead.
Tribunal chair David Daniels, for one, was impressed that the LLPT had secured Amazon as an anchor tenant. “That’s a major, major breakthrough for the economy of the Western Cape and for the brand of Cape Town,” he said at the time. “I think it’s a big deal.”
Appeals against this decision were later dismissed by the then mayor Dan Plato, and following the granting of a water-use licence by the national department of water & sanitation on June 26 2020, the LLPT proceeded with construction — despite the request to postpone until the interdict application had been heard.
LLPT trustee and spokesperson James Tannenberger now argues that it is “in the interests of justice” that the developer be given leave to appeal Goliath’s ruling. If the development fails, he says, the concessions made to the First Nations Collective — which the GKKITC has called a “divide and rule tactic ”— will come to nothing and the region’s Khoi people will be “deprived of the only feasible prospect of manifesting their intangible cultural heritage associated with the area”. And, Tannenberger says, 6,000 direct and 19,000 indirect jobs will be lost.
But that’s not entirely clear. An affidavit by DHK Architects founding partner Derick Henstra, which forms part of the OCA’s court papers, states that River Club isn’t listed on Amazon’s shortlist for its new regional headquarters. So, should a review find against the development, or if Amazon were to pull out due to a construction delay, the corporate giant could conceivably simply shift its headquarters to one of the other Cape Town sites on its list.
This could effectively reinstate both the jobs and investment lost at the River Club development.
When asked how River Club came to be chosen by Amazon, given that the development didn’t seem to appear on the company’s shortlist following its 2018 request for proposals, the LLPT refers to Henstra’s affidavit as “sour grapes”, claiming the architect had been involved on a competing site that lost a bid.
It claims the affidavit amounts to “non-expert hearsay information” that has “no relevance” to the matter at hand. The LLPT says it had sought to have the document struck from the legal record. (Goliath dismissed that application.)
But even with the possible loss of jobs and investment, Goliath believes it is “constitutionally appropriate” to halt construction, as “this matter ultimately concerns the rights of indigenous people”.
“The fact that the development has substantial economic, infrastructural and public benefits can never override the fundamental rights of First Nations Peoples.”