A High Court injunction granted by the Western Cape High Court earlier this year which halted development of the R4.6 billion River Club development, has been overturned. Indeed, it was obtained “by fraud”.
Judges Elizabeth Baartman, Hayley Slingers and James Lekhuleni ruled on Tuesday that Tauriq Jenkins, who claimed to act on behalf of the Goringhaicona Khoi Khoin Aboriginal Traditional Council (GKKITC) in the restraining application which was decided by Associate Presiding Judge Patricia Goliath, “was determined to stop development at all costs.”
It emerged in a quashing petition brought by other GKKITC members, which was heard by the full bench, that he had “fabricated a constitution fit for his purpose and betrayed the trust of others in him. “, ruled the three judges.
In March, Judge Goliath granted an interim ban to stop any further development of a “large-scale urban campus”, including Amazon’s regional headquarters, on the site where the Liesbeek and the Black Rivers meet. .
Judge Goliath ordered the ban to remain in place until there is “meaningful consultation” with all Khoi and San First Nation peoples and pending a review of relevant environmental land use clearances for development on the floodplain of historical and cultural significance.
But the GKKITC cried foul and demanded the judgment be overturned, saying Jenkins had no authority to act on its behalf, or on behalf of other First Nations groups.
Judge Baartman, who wrote Tuesday’s ruling, said the GKKITC, Regent Michael Hansen, Chief Shiraatz Mohammed, and Peter Ludolph (the plaintiffs) filed the quash petition against Jenkins, Delroque Arendse, and the Observatory. Civic Association (the defendants) on the grounds that the ban was obtained by fraud.
The judge said the GKKITC was a group of individuals who shared the same heritage and wanted its protection.
Jenkins had claimed to be instituting the ban enforcement on their behalf when in fact they were not objecting to development on what had become a “degraded site”.
“Authorities received a request which included the rehabilitation of the river, open public spaces adorned with native vegetation to replace golf greens, the creation of a heritage museum and an amphitheater for the use of groups of First Nations and other members of the public and residential housing, this would include affordable housing.
“Significantly, this would also include public transport infrastructure. The relevant authorities, after extensive public engagement over several years, granted the required permission and development commenced,” Judge Baartman said.
Jenkins and the Observatory Civic Association claimed before Judge Goliath that they had not been properly consulted.
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Jenkins said he was authorized to act for the GKKITC under a resolution under its July 2021 constitution. This had been endorsed by Supreme Leader Aran and others. He said in the restraining application that “given the urgency” he was unable to obtain confirmatory affidavits.
He also said that the leaders of the vast majority of First Nations organizations had “confirmed in conversations with me” that they were strongly opposed to development.
In the annulment request, the GKKITC said the only binding constitution was the one adopted in 2018.
Two of the people Jenkins cited as authorizing him to sue had denied doing so, the GKKITC said. One, who signed, was 85 and claimed he was tricked into signing it without being told what he was signing.
Following Goliath’s decision in March this year, the GKKITC executive board met and ‘revoked’ any apparent authority granted to Jenkins or Supreme Leader Aran and decided that they should resign or be fired, and that the annulment request should be pursued.
Judge Baartman said, “A judgment induced by fraud cannot stand.”
However, it had to be proven that the false evidence would have led the judge to a different conclusion.
She said Petrus Vaalbooi, the leader of the ‡Komani San, who Jenkins said was opposed to the development, said in the cancellation request: “I categorically deny that I ever spoke to him… I don’t know who is that person. and I never met him.
Vaalbooi said he and his people “support wholeheartedly and unconditionally” the development.
Judge Baartman said Jenkins alleged that some people had had a “change of mind”.
“But that does not address Vaalbooi’s allegation that he had not met Mr. Jenkins… furthermore, Judge Goliath relied on Jenkins’ allegations,” Judge Baartman said.
Similarly, another IXau-Sakwa chief, Chief Danster, had also stated categorically that he had never had any dealings or discussions with Jenkins or Aran and had expressed his “shock” that his name had been used to give credibility to something of which he had no knowledge. .
“It appears that Mr. Jenkins was determined to stop the development at all costs,” Judge Baartman said.
‘I don’t come to this conclusion lightly,’ she said, noting that Jenkins had been ‘disdainfully absent’ from a hearing the day before the main hearing and had tried to testify. a 1,500-page affidavit out of time.
The judge said Judge Goliath acted on his misrepresentations and that she would not have granted the request if she had known he was not authorized to initiate the prohibition proceedings.
In a related motion heard at the same time by the same judges, the provincial government, the city of Cape Town, the developers and the Western Cape First Nations Collective also successfully appealed Judge Goliath’s judgment.
The three appeals judges concluded that the Observatory Civic Association and Jenkins had, in no way, established a prima facie right to ban because they could not demonstrate irreparable harm if the development continued.
Judge Baartman said an investigation would have found many opportunities, including promotion of the site’s heritage value and increased unemployment, which would outweigh any harm.
The Observatory Civic Association was ordered to pay costs in all of the various court cases. DM
First published by GroundUp.