A group of leaders who say their indigenous organisation was fraudulently misrepresented in the court case opposing the Amazon head office development in Cape Town, has won the right to join the appeal against the construction ban.
The construction of the R4.6bn office block, with Amazon as an anchor tenant, began in September 2021, and was halted by a court interdict by Western Cape deputy judge president Patricia Goliath in March.
She ruled in favour of the Goringhaicona Khoi Khoin Indigenous Traditional Council and the Observatory Civic Association, which do not want concrete on the land they say has intangible or spiritual significance.
Goliath ruled that economic and infrastructure development could not trump the rights of indigenous people and ordered new consultations with them.
Another group of First Nations people, who say they represent the Cape Peninsula Khoi, are in favour of the development.
But the Goringhaicona, led by Observatory resident Tauriq Jenkins, were opposed. Now a faction within the Goringhaicona has accused Jenkins in court papers of fraud by representing them and say their constitution of 2018 does not show him as their leader.
They say he was initially the chair of the Observatory Civic Association, which was opposed to development, and then joined their grouping, which won the ban on construction.
The faction of the Goringhaicona that claim leadership want the construction ban by Goliath rescinded, saying they support the development, which has a First Nations Cultural Centre planned worth R80m.
If they are successful in proving Jenkins is not a leader, the opposition to the development on indigenous and spiritual grounds falls away.
Judge Mokgoatji Josiah Dolamo said both factions of the Goringhaicona were determined to “outlitigate each other” with a wave of applications and counter applications.
He said that that did not serve the interests of indigenous people. “Unfortunately, the matter of cultural rights of indigenous people are adversely affected.”
But on Tuesday he ordered that the faction that disputed Jenkins leadership be allowed with developers Liesbeek Leisure Properties Trust (LLPT), the First Nations Collective, the City of Cape Town and Western Cape provincial government, to appeal against the construction ban before a full bench of the high court in October.
Construction continues while the ban is being appealed.
The Observatory Civic Association has tried to approach the court three times to have developers found in contempt of court for their ongoing building. Their bid to have building stopped failed this week, with Dolamo finding their matter was not urgent and striking it off the roll.
He said the civic association had not been ready to proceed with a similar case on August 22 and thus urgency in the new case was "self-created".
What this means is that the building continues until the appeal is heard in October.
The property developer intends 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.
If the ban is kept in place, they stand to lose more than R400m in penalty fees to Amazon and the banks.
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