If the interdict stopping construction of the Amazon Observatory office park is not lifted soon, the development will be canned, leaving residents without a public park, affordable housing, cycling trails and almost R4bn in road upgrades, the developers say.
In March, Cape Town deputy judge president Patricia Goliath interdicted construction of the office park, which has tech giant Amazon as an anchor tenant. and ordered fresh consultations with Khoi and San people, some of whom are opposed to the development.
In new court papers filed at the Supreme Court of Appeal, the developer, the Liesbeek Leisure Properties Trust (LLPT), says the delays in construction mean it is unlikely to finish building by November 2022 and hand over to anchor tenants by December 2023 as contractually required. It says further delays could stop the development completely, leaving it with losses “in excess of R386m”.
Building companies usually pay penalties if construction is delayed and previous LLPT court papers detailed hefty banking penalties that it must pay lenders if the development is terminated.
The property developer is turning a privately owned golf course in Observatory, Cape Town, into an office park and seeks to create 6km of public cycling trails, a First Nations cultural centre, subsidised affordable housing and an indigenous garden while spending R38m on river rehabilitation. The construction will create more than 5,000 building jobs and 19,000 indirect jobs.
But the Goringhaicona Khoi Khoin indigenous council and the Observatory Civic Association, led by University of Cape Town public health professor Leslie London, asked the court to halt construction, saying the laying of concrete would damage land that is of spiritual significance to the Khoi and San communities.
After stopping construction, Goliath denied those in favour of the development a chance to appeal against her decision. She said the appeal had little chance of success in a different court.
However, last week the Western Cape government, the City of Cape Town, the First Nations Collective and the developer filed papers at the Supreme Court of Appeal asking for the right to appeal against her interdict.
Unattractive
The Western Cape government said it was unusual for it to get involved in such matters, but the ruling has a significance greater than the R4.6bn office development. The province and the City of Cape Town fear that the interdict, which stopped construction, makes the province unattractive to development and job creation.
The local and provincial governments are also concerned the ruling makes it easier to use the court to interdict developments even after years of provincial and municipal approval processes. By way of example, the City of Cape Town explains, the environmental impact assessment process began in 2016 and finished in 2020 and had multiple periods of public comment.
The LLPT says if the development is delayed much longer and eventually terminated, unfinished buildings, a disused degraded golf course, polluted rivers, a conference centre and a parking lot could be left behind.
It argues that when Judge Goliath stopped the development to uphold First Nation group rights, she disregarded the rights of the general public. The public will benefit from the development through the R3.9bn earmarked for road upgrades over seven years and through the creation of the public park, inclusionary housing and jobs, it says.
The “financial and material harm” it is suffering was not taken into account by the judge either when she weighed up the different parties’ rights, the developer says.
The developer and the city have argued that those opposed to development have failed to explain how they are spiritually harmed by the development of the land and by the planned rehabilitation of the canalised rivers. The indigenous group opposed to the site currently does not have access to the private golf course.
If the development ends, the First Nations will be harmed since the planned amphitheatre for performances, the indigenous eco trail, the cultural centre and public park will not be created.
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