Cape Town - The Western Cape High Court has dismissed an interdict granted by Deputy Judge President Patricia Goliath on March 18 – with costs – to halt the construction of Amazon’s African headquarters at the River Club with a finding that the decision “was induced by fraud”.
The rescission application was heard by a full bench of judges Elizabeth Baartman, James Lekhuleni and Hayley Slingers, along with an appeal against Goliath’s order.
The court came to the conclusion that Goringhaicona Khoi Khoin Indigenous Traditional Council high commissioner Tauriq Jenkins had “misrepresented” the Goringhaicona Khoi Khoin’s constitution and therefore had no authority to bring an application in their name.
“It seems that Mr Jenkins was determined to stop the development at all costs. He therefore fabricated a constitution to suit his objective and betrayed the trust others had in him,” said Judge Baartman.
She said that it was “clear” from DJP Goliath’s judgment that the decision was based on misrepresentations made by Jenkins.
“It is axiomatic that the court a quo would not have entertained the application had it been aware that the first applicant (Goringhaicona) had not authorised the litigation. The judgment and orders stand to be rescinded.”
The full bench also upheld an appeal by Liesbeek Leisure Properties Trust (LLPT), Western Cape First Nations Collective (WCFNC), the Province and the City who sought to have the interim interdict against the construction of the development at the Observatory site set aside.
The appeal court found that the Observatory Civic Association, even though they hadn’t opposed the appeal in court, had not established a prima facie right and therefore no irreparable harm could be considered.
“In the circumstances of this matter, this court would not have granted an interim interdict. It follows that this court is at liberty to interfere with the discretion exercised by the court a quo. The interim interdict stands to be set aside on appeal,” the judgment said.
Welcoming the outcome of the appeal, the LLPT said: “This is a major win for all Capetonians who stand to benefit from the R4.6 billion project.
“This judgment sends a clear message to those who have tried to stop the development at all costs with little or no regard to the social upliftment of surrounding communities.
“It is therefore with relief that LLPT welcomes today’s judgment, which is in the interests of all Capetonians.”
WCFNC’s Zenzile Khoisan said: “We feel vindicated. What has happened in this judgment is that the position of the FNC has been vindicated.
“That we are an authoritative representative of the Khoi and Bushmen of South Africa and in the Western Cape. That our position to exercise the right of indigenous cultural agency has been vindicated by the courts because what we have done is to engage with the developer to do what the South African government has failed to over more than three decades of democracy.”
The Liesbeek Action Campaign in a joint statement said: “We are deeply disappointed at the outcome. We do not believe that the facts put before the court enabled the court to make a fair judgment.
“Much of Tauriq Jenkins’ affidavit would have put paid to the arguments presented in court, but because his affidavit was late, it could not be accepted in the proceedings.”
The City welcomed the judgment while the Province said: “We are currently studying the judgment and will respond in due course.”
rafieka.williams@inl.co.za