Rights of indigenous people given too much weight
IN MARCH, Judge Patricia Goliath of the Cape High Court granted an interim interdict, in a case brought by several groups of objectors, stopping a development at The River Club in Observatory, Cape Town which had been given the green light by the Western Cape government and the City of Cape Town.
In doing so, Judge Goliath stated, inter alia, that “the fact that the development has substantial economic, infrastructural and public benefits can never override the fundamental rights of indigenous people”. This has caused a huge brouhaha for a multitude of reasons. First, the development has the active support of a substantial segment of the Khoisan community, which seriously undermines the argument that the site is “sacred” in the eyes of the Khoisan community.
Second, the site has operated as a golf course-cum-conference centre for several decades, which has a similar impact on the argument that allowing the development to proceed would be a huge blow to the Khoisan people.
Third, it is clear that the Goringhaicona Khoi Khoin Traditional Council has dug its heels in (is vehemently opposed to any form of development) and it hence is extremely unlikely additional consultation would have the desired effect.
Fourth, the court has given no indication as to what “adequate consultation’’ is likely to entail, which is bad news for all developers. (Are they expected to keep consulting indefinitely?)
Five, the court, which made it abundantly clear it was not criticising the development, does not appear to have given any thought to how the objectors will compensate The River Club for its losses – which are likely to be huge – if our courts subsequently decide that the appeal was frivolous.
Under the circumstances, one feels the court has attached far too much weight to the indigenous community’s so-called fundamental “right to be consulted” and given far too little to the need to create jobs and provide the Western Cape with a much-needed R4.6-million financial boost.
TERENCE GRANT | Cape Town