Interdict granted against ‘monstrous’ River Club development

 Interdict granted against ‘monstrous’ River Club development. Developer cries foul

 Objectors to the Liesbeek Park River Club development in Observatory, Cape Town have obtained an interdict to stop construction, granted on 19 March 2022 by Deputy Judge President Goliath of the Cape Town High Court.

 This follows a public outcry over the “monstrous” development by residents and cultural groups about its impact on the environment and cultural heritage. The development is on the environmentally significant Liesbeek River green zone just north of the N2.

 Applicants for the interdict were Leslie London, chairperson of the Observatory Civic Association, and Tariq Jenkins of the Goringhaicona Khoi Klan Traditional Council. It followed protracted protests and unsuccessful appeals to the City of Cape Town and Western Cape Government (WCG) to not approve the project, at least in its present form, and when that failed, for them to halt construction.

 The application to the High Court was made on the basis of lack of consultation and cultural heritage and environmental importance of the Liesbeek River and adjacent area.

 The Liesbeek River and its banks are an important green and recreational space, one of the last remaining in the city centre and under threat of urban expansion. Residents and objectors to the development – it gets its name from the former club of the same name on the site – object to the scale of the project, that it dwarfs and is out of character with the area and negatively impacts environmental and cultural heritage.

 Objections were rejected by the city which overseas building planning and zoning and Western Cape Government which has jurisdiction over environment and heritage. They acceded to developer Liesbeek Leisure Properties Trust (LLPT) argument of job creation and investment of claimed R4.6 billion.

 Cape Town’s red-carpet policy to development

 The DA-run city’s and WCG’s approval is in the context of their development-friendly “red-carpet approach” (their words) to development. While governments are pro-development at almost any cost, especially when it purportedly involves job creation, and developments are prone to political interference and corruption, the city has a history of poor and contentious planning decisions (less so when the ANC ran the city).

 Planning fell under direct executive political control after the DA took power in Cape Town in 2006. Previously decisions had been left to the professionals in the planning department – engineers and city planners. The city’s development at all cost policy was born with the express approval of the then premier of the Western Cape Helen Zille and government, a situation that still exists today.

 The role of city/government is to balance sustainable development of the urban space and economy with environmental, social and cultural needs and demands. All have, or should have, equal priority. Founded in the Constitution, there are numerous laws, by-laws and regulations that give it effect including Land Use and Spatial Planning Act, Land Use Management Act, Environmental Protection Act and Cape Town’s Municipal Planning By-law, Metropolitan Spatial Development Framework, Urban Design Policy, Cape Flats District Plan, Economic Growth Strategy and Social Development Strategy.

 Despite laws, by-laws and regulations protecting the status quo, in other words, leaving a site in its present, original state, for developers it’s a relatively simple tick-box exercise to get planning and zoning approval which they view as a natural right. Instead, objectors must motivate why the status quo must be preserved, at times resorting to legal action when the city and/or Western Cape Government ignore appeals.

 Many projects attracted controversy, e.g. Princess Vlei, Philippi, Maiden’s Cove, Bo-Kaap, Westcoast, etc. Recently the city sold a public sports field in Kenilworth in a private bid without notifying the public or club leasing the field, advertising it or inviting competing bids. Reportedly, the purchaser intended building flats. The sale, which was illegal, was stopped after the community protested to the mayor.

 There are documented cases where developers build without plans or permission, and rather than order them to cease or demolish, the city leniently issues a small fine, usually not more than R10000, and an opportunity to submit plans for approval after the fact. Anecdotally, how quickly plans are approved depend on developers’ connections in the city.

 In Cape Town the Municipal Planning Tribunal reviews and adjudicates planning decisions, particularly when there are objections to developments. Its members are appointed by the mayor. It is staffed by city employees and co-opted outsiders, all people in the property development field. Its first chairman was former director of planning David Daniels who was unapologetically pro-development. Not one member comes from the community, environment or cultural fields or represents those interests.

 A tribunal is meant to weigh evidence, for and against, but invariably MPT approves development despite often compelling reasons not to. They follow the political agenda and opaque rationalisations of purported job creation and economic development even when these are unproven or unclear. And they ignore or minimise concerns about the environmental, social and urban impacts.

 MPT claims the purported economic benefits of development are for the “greater good” and outweigh its alleged negligible negative impacts. They never explain whose greater good but they mean developers who reap profits and city who receives tax income. Local residents, who also are ratepayers, are expected to bear the direct and indirect costs of poor planning decisions.

 Developers may and do pay a “development contribution” to induce MPT/city to approve developments, in other words, a bribe by another name.  Such inducement and MPT’s vote in favour falls under the definition of corruption in section 4 of the Prevention and Combating of Corrupt Activities Act which inter alia defines corruption as acting in a “biased” manner by “voting at a meeting of a public body”.  The MPT is such a body that votes on decisions.

 Members of the MPT are not officers of the court.  They take no oath of office to uphold the Constitution. Instead they are bureaucrats and consultants appointed by the city’s political executive which congregated development decisions under it.  The MPT’s is compliant to the wishes of the executive. They selectively use facts, laws and policies that support their narrative but dispense with those that detract.

 The WCG’s Environmental and Planning Department can review the city’s planning decisions and environmental and cultural impacts. But WCG and its officers suffer the same defects as the city by being pro-development to advance the political agenda.

 This is the case too of River Club.

 Fallacies of River Club developer’s public statement

 On April 14 2022 community newspaper Tatler ran Liesbeek Leisure Properties Trust’s full-page statement about the interdict, “Liesbeek Leisure Properties Trust seeks leave to appeal job killing interdict which has stopped construction of the R4.6 billion River Club redevelopment”. (They inaccurately and confusingly call it a “redevelopment”, though, when it’s a substantial new, green field project.)

 The introductory paragraph goes:

 “The [successful] interdict application ... [was] based on an application by Prof Leslie London (UCT academic and Observatory Civic Association – which has 55 members) and Mr Tariq Jenkins (self-proclaimed leader of the voluntary group called the Goringhaicona Khoi Klan Traditional Council and a colleague of Prof London and a member of OCA) who have no legitimate claim over the intangible heritage of the area, or standing within the First Nations community”.

 The statement says the “interdict is appealed because of the serious, immediate, ongoing and irreparable harm which flows from it”. It says 6000 direct, 19000 indirect and 750 construction jobs are affected by halt in construction, and loss of billions investment to the local economy.

 “An equally important harm is the risk of immediate loss of the recognition and manifestation of the historical and intangible heritage of the Cape Peninsula Khoi if the development does not proceed [sic]”

 It claims London’s and Jenkins’ application presented “unsubstantiated arguments” that there was a lack of consultation, on which the interdict was granted, which was “not part of the applicants’ grounds for review”. Confusingly, it also says the applicants “claimed in court without evidence of this in the records before the court and no party appeared before the court or filed any affidavits in support [sic]”.

 The bulk of the statement is given to Liesbeek Leisure Properties Trust’s “constructive engagement over several years with the Western Cape First Nations Collective comprising the majority of Cape Peninsula Khoi to reach a final development plan” to ensure their intangible heritage that includes a heritage and media centre and park. It questions Jenkins’ bona fides who allegedly has “no historical links to the area”.

 The statement mentions London’s and Jenkins’ alleged “baseless claims” about lack of consultation, which LLPT say they did not have an opportunity to respond to, and London’s et al environment concerns “for which no valid grounds exist”. It ends that LLPT “will again ask for an appearance in court to evidence the injustice [sic] of blocking this world-class project and the critical opportunities it will bring, including much needed jobs”.

 The statement can be read on Tatler’s site.

 While one has sympathy for Liesbeek Leisure Properties Trust who spent millions and years only to have construction stopped soon after it started, their statement, at times confusingly worded, is written in the manipulative propagandist style. While it plays with their board and shareholders, it won’t with the Court or public opinion. I’m unsure who they are trying to win over, unless it’s a marketing exercise to assure investors and prospective tenants.

 Here are the fallacies, inconsistencies and errors revealed in their statement. 

·         LLPT is insulting to applicants Leslie London and Tariq Jenkins, and objectors to the development in general (see Tatler’s letters page same issue for a resident who applauded the interdict and called the development “monstrous”), by claiming they have no standing (“self-proclaimed”; only “55 members”) or are acting nefariously. By getting personal rather than sticking to the argument, they wasted an opportunity to put their side across. Their ad hominem – “slut-shaming” is a good word although out of context here – makes their arguments less sympathetic even without considering the facts. By resorting to it, they lose credibility. 

·         LLPT misunderstands what public representation means. I don’t know the extent of London’s and Jenkins’ mandate, if it’s only 55 and 1 respectively (properly constituted civic associations represent all residents in their area, so for Observatory Civic Association, it’s a couple of thousand households and properties) as LLPT claims, but it does not matter. Any and each citizen has the right to be heard, to make representations and have them seriously considered throughout the process up to court. 

·         LLPT interprets consultation narrowly and incorrectly to serve its ends. But it’s clear from their statement they are to blame for only considering the views of co-opted first nations groups during “years” of so-called consultations and not of other people too including residents, environmental and cultural individuals and groups.

They ignore the fact consultation, a constitutional requirement, is not only with selected groups who have the same objectives but all interested and affected parties including Cape Town’s citizens. Liesbeek Park and the development site and affected surrounds do not belong to any one group, but citizens and even the country. Development may only proceed after permission is obtained from the city/government acting on behalf of and in the people’s interests for which laws and regulations exist to preserve. 

·         LLPT misunderstands and misstates “justice”, as in the interdict is allegedly an “injustice”. Justice is the fair, impartial process where the correct decision is reached based on the objective review of the evidence. It’s not necessarily the pursuit the truth, but the strength of the arguments presented. In this case, London and Jenkins convinced Judge Goliath and LLPT failed, yet LPPT blame them. 

·         In addition to conflating the legal process with justice, LLPT selectively quotes Goliath to support their case, that she “noted the interdict must not necessarily be construed as a criticism of the development, or as casting aspersions on the views of the majority of indigenous groups and councils who joined as 8^th respondents [with LLPT] against the interdict”.

But contradictorily they indirectly criticise her for accepting the applicants’ alleged “unsubstantiated claims”, “claims without evidence”, “baseless “allegations” and claims made informally and not in affidavits presented to the court (“no party appeared in court or filed any affidavits supporting this claim”). They are really accusing the judge of incompetence for failing to discern claims from fact and not following court and evidence procedure. 

·         LLPT misunderstands the court’s role is to listen to opposing and even conflicting arguments and decide if the law and procedure was followed. Goliath must have been convinced of the applicants’ because she granted their plea. 

·         That the application succeeded, it’s clear the process until then – through the city planners office, Municipal Planning Tribunal and appeal and Western Cape Government’s planning review, assuming one was done, and environmental and cultural/heritage assessments – was defective. Yet the city and WCG approved the development.

The Court’s review – that there was inadequate consultation and environmental and cultural concerns – effectively nullifies the city’s and WCG’s decisions and brings the credibility of their processes and offices into question, as mentioned in the second part of this piece. I suggest LLPT have reason for complaint, and legal action should their appeal fail, against the city and WCG and not London et al. 

·         LLPT presents itself as the only one, along with co-opted first nation groups, of being concerned about the “recognition and manifestation of historical and intangible heritage of the Cape Peninsula Khoi”. It accuses Jenkins, who may have a genuine right to be concerned about indigenous culture, of being an imposter. They disparage his connection to the Khoi and say he has no mandate to speak for this disparate group.

But before River Club, was the company involved in indigenous peoples? What connection to the Khoi does LLPT have? Are its board, directors and shareholders Khoi or have a direct interest in their heritage and culture? Or likely, is LLPT using them as a means to an end to get their approval as evidenced by Khoi groups aligning themselves against the interdict application? 

·         LLPT’s claims the interdict on construction is causing “serious”, “immediate”, “ongoing” and “irreparable” harm to the Western Cape’s and South Africa’s [sic] economy and job creation prospects. And there is a “domino effect of serious loss of investor confidence in the country”, noting last quarter’s unemployment of 35.3%.

But they falsely equate and conflate the fortunes of their R4.6 billion investment to that of the country’s. While R4.6 billion is significant, it’s only a small part of present and future total investment in the city and negligible for the country. (Recently President Cyril Ramaphosa announced multi-billion rand investment pledges. Previous ones amounted to little but that’s another story.) So linking the “harm” done to their project to the macro-economy is a gross exaggeration particularly when the country’s low, stagnant growth and high unemployment are due to long-term systemic problems. 

·         LLPT’s statement mentions environmental concerns only in passing, that no “valid grounds exist for it”. But the impact on the environment was the first concern raised when the project was announced. 

The city’s Metropolitan Spatial Development Framework and Urban Design Policy specifically refer to social, cultural and environmental objectives. These include inclusivity (social, cultural) and conservation. The UDP’s objective 9 says “developments should respect and enhance the heritage, character and unique identity of the City and its neighbourhoods”, and objective 2, “ensure the development contributes to improved quality of public realm and space”, which is another way of saying it must be compatible.

The scale of the development is not compatible with the immediate and surrounding area even with the proposed public garden which already is part of a green public space along the river bank. It’s arguable if the development respects and enhances the neighbourhood. 

 ‘Our past is being destroyed’. On a park for the Khoi 

In a letter in the same issue of Tatler that ran LLPT’s statement, under the heading “River Club development will destroy heritage”, Monica Sutherland of Rondebosch wrote:

“I sincerely hope the developers of that monstrosity lose their appeal and the new judge makes the same decision as that clever lady did when she refused it. I see they [she meant developer but city/WCG are included] are using the usual excuse about creating jobs, and yet if they were really serious, they would build that monster [sic] at a site nearer where the jobless stay. 

“That site should be turned into a Khoi park where our indigenous people can plant herbs and anyone can sit there and breathe in the fresh air and learn a bit about them. It seems that all our past is being destroyed, and soon there will be no need for visitors to come here as there will be nothing to see.” 

Sutherland is spot on. She asks the key question about development: why here? This is relevant when other, perhaps more suitable, sites are available. To the developer it’s easy: tenants do not desire property where the riffraff jobless, who do menial labour for them, live but in nice, easily accessible middle class suburbs. So the job creation argument is disingenuous and invalid. 

LLPT unequivocally rejected the suggestion for the site to be returned to its “original state” saying it’s “neither viable or feasible, nor desired by the majority of the Cape Peninsula Khoi”. 

It begs the question, though, why the Khoi would not want a protected site where their culture and practices could be observed. Their claimed refusal of such a site, and support of the River Club development, is at odds with indigenous peoples in South Africa and around the world who deplore the alienation of traditional lands and culture by colonialism, mining and industrialisation and urban development.  

The only explanation is LLPT bought Cape Peninsula Khoi’s support, which granted the company permission to develop they were not entitled to give, with promises of a heritage and media centre and to “memorialise” Khoi culture, which LLPT was not entitled to offer – the company is not the keeper of Khoi, or for that matter anyone’s, history. 

The Khoi groups apparently sealed the deal by being co-respondents against the interdict application. Their price was cheap if a visitor centre is the only thing they got in exchange. 

This speaks of the continuation of capitalist colonialism and selling heritage and land for sparkly baubles, the awful historic practice indigenous people the world over are retroactively trying to rectify. Another term for it is “selling-out”. 

Conclusion 

Liesbeek Leisure Property Trust’s statement is at times confusingly worded and its argument weak. They became personal and were petulant and paranoid by their court loss. They display megalomania equating their R4.6 billion investment with the city’s and country’s macro-economy. 

They have little understanding of consultation which they view in the narrowest way to benefit them. They held talks with co-opted groups that have similar objectives and dismissed environmental and other concerns, but are astounded the interdict application succeeded. 

Consultation hopefully leads to consensus but must include as wide views as possible. This is what the constitution means by “meaningful”. But what happened here proves there was little to no consultation with all interested and affected parties, not only limited to cultural groups, and that LLPT selected only those individuals and groups felt it could do business with. 

That the Court granted the interdict proves the process through the city and Western Cape was defective and that they were negligent for disregarding objections and approving the development. Had the city done its job and adhered to numerous planning laws and regulations, LLPT would have known the problems of its development and could have rectified it at planning stage. WCG too ought to have known and considered the real environmental and heritage impacts and concerns. If LLPT has a complaint against anyone, it is against them.

 However, this case proves that Cape Town’s threatened natural, cultural and urban heritage are for sale provided developers pay the development contribution, a bribe really, and that its planning and development administrators are slaves to political agendas.

 Shame on the DA-run city and Western Cape Government for approving the River Club development and condoning what is neo-colonial hijacking of indigenous culture and the city’s threatened environment for profit. Their red-carpet policy to development can again be seen for what it is: anything and everything is available for a price.

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 I am not connected to any of the parties and do not live in Observatory or nearby but am a citizen of Cape Town and concerned by its natural and cultural heritage. I have an interest in urban development and have written about it in this blog.