The high court in Cape Town’s finding that economic and infrastructure benefits do not trump the rights of indigenous people may see Cape Town losing a R4.5bn investment in what was meant to be tech giant Amazon’s Africa headquarters.
The weekend decision to interdict the project may also lead to the loss of 5,000 construction jobs and put a stop to road upgrades and the creation of a public park, while leaving the developer liable for more than R100m in penalties, including a breach of contract with the world’s biggest online retailer.
The contested development is at the confluence of the highly polluted Liesbeek and Black rivers in Observatory, on land the developers describe as “degraded”. The project would include affordable housing, R38m in river rehabilitation and the creation of cycling lanes.
It was opposed by the Goringhaicona Khoi Khoin indigenous council, run by three leaders, and the Observatory Civic Association, led by public health professor Leslie London.
Colonisers
The groups argued that the laying of concrete and the construction of tall buildings would permanently damage land that has great cultural and spiritual significance to the Khoi and San communities.
The Goringhaicona Khoi Khoin indigenous council says the land was the site of the battle in which indigenous people fought off Portuguese colonisers in the 16th century, though this is disputed by some historians and academics.
If Amazon pulls out because of the court delays, more than 5,000 planned construction jobs will be lost, with the developer liable for penalty fees to Amazon and the banks, according to the developers’ court papers.
The deputy judge president of the high court in the Western Cape, Patricia Goliath, granted the urgent interdict stopping the construction process to allow for further consultation.
“This matter ultimately concerns the rights of indigenous peoples. The development of substantial economic infrastructural and public benefits can never override the fundamental rights of First Nations peoples.”
The developers, Liesbeek Leisure Properties Trust (LLPT), the City of Cape Town and the First Nations Collective, a grouping of six different indigenous councils that are in favour of the development, said it serves no-one’s interest to stop the development while retaining a private golf course, degraded land, a tarmac parking lot and canalised rivers.
The city argued that if the interdict were granted, Amazon may pull out of the development entirely and this would “inflict unjustifiable and irreparable harm on Cape Town’s economy at a time of crisis”.
While Goliath acknowledged the “substantial” economic benefits, she found the consultation process had been biased and insufficient given that there are disagreements among First Nation groups.
The Goringhaicona Khoi Khoin welcomed the halt on construction and said the site is undergoing grading assessment to determine whether it should be a national heritage site.
“We believe that it is ... the ground zero of resistance to colonial intrusion in SA and bears the history of resistance to colonialism that can never be buried in concrete.”
The LLPT, which owns the land, said it was disappointed and was meeting with lawyers to decide on its next step.
In court papers, developers argued that by September, the initial building had cost R349m and if it was further delayed, then Amazon would pull out. A termination would trigger banking fees of more than R12m and R22m in penalties. More than R100m would be owed to Amazon for breach of contract.
The Western Cape First Nations Collective representing Khoi and San groups who support the development, said it would appeal against Goliath’s judgment on an urgent basis.
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