Cape Town - The Liesbeek Leisure Properties Trust (LLPT) has made good its promise to file an urgent appeal in the Supreme Court of Appeal (SCA) against Western Cape Deputy Judge President Patricia Goliath’s entire ruling, which stopped the construction of the R4.6 billion project in its tracks in March.
The application to the SCA comes a month after Judge Goliath dismissed their application for leave to appeal the landmark River Club judgment.
In dismissing the application, Judge Goliath said she had considered whether it would have reasonable prospects of success and was convinced that it would not succeed.
At the time, LLPT trustee and spokesperson James Tannenberger said they would review the judgment and take it to the SCA.
Other respondents in the case, namely, the Province, the City and the Western Cape First Nations Collective, have also filed appeals in the SCA.
Yesterday, Tannenberger referred to Judge Goliath’s order as the “legally flawed, job-killing River Club interdict.”
The LLPT’s 29-page SCA application emphasised that when granting its order, the Western Cape High Court had wholly failed to apply the required balance of convenience test for interdicts.
“On the one hand, there are very significant economic, social, heritage and environmental benefits that stand to be lost if the interdict is not reversed on appeal.”
Tannenberger said these benefits included the immediate and severe consequences to the thousands of construction workers without work.
Tannenberger said that the Cape Peninsula Khoi were also at risk of losing one of the few opportunities to memorialise and celebrate their cultural heritage that is associated with the area, including the establishment of a heritage, cultural and media centre.
He said that the wider public benefits of developer subsidised affordable housing, safe and accessible green parks and gardens, significant road and other infrastructure upgrades in the area and the major rehabilitation of the polluted and degraded waterways adjacent to the property also stood to be lost.
“On the other hand, and against the real tangible and wide benefits of the development, the applicants, Observatory Civic Association chairperson Leslie London and Goringhaicona Khoi Khoin Indigenous Traditional Council High Commissioner, Tauriq Jenkins, have made vague and open-ended claims that the development will result in the loss of intangible cultural heritage.”
He said London and Jenkins, who are part of the Liesbeek Action Campaign, had been unable to identify any single aspect of indigenous cultural life that they would no longer be able to enjoy when the golf course and tarmac parking area were replaced by the development under construction.
“Furthermore, if this interdict order stands, it impacts on foundational principles of our law, including separation of powers, and with it the future of sustainable development in our country. That warrants consideration by our SCA.”
In its application to the SCA the LLPT said it would be a miscarriage of justice if London and Jenkins succeeded.
Responding to the application to the SCA, Jenkins said Tannenberger did not speak for the numerous other Khoi and San groups who have voiced their opposition to the development, or for the 72000 objectors against the development.
He said the LLPT had at every opportunity resisted any heritage grading of the site, both by Heritage Western Cape, when they appealed the provisional protection order, and by the SA Heritage Resources Agency.
“The jobs Tannenberger speaks about are jobs that would have been created had the City and the Province followed their own policies and the advice of their own specialists by ensuring the development did not take place on a sensitive environmental and heritage site.”
Jenkins said had the City and Province insisted that Amazon choose one of the other suitable sites.
“To blame the applicants for job losses is to overlook the fact that this is a problem entirely of the respondents’ making, since they embarked on the development knowing full well it would go to court.”
In a joint statement, London, Jenkins and LAC co-ordinator Nadine Dirks said the LLPT version of events was based on misrepresentations.