Observatory Civic Association and Another v Trustees for the Time Being of Liesbeek Leisure Properties Trust and Others (12994/21) [2022] ZAWCHC 280; 2023 (1) SA 583 (WCC) (18 March 2022)

Observatory Civic Association and Another v Trustees for the Time Being of Liesbeek Leisure Properties Trust and Others (12994/21) [2022] ZAWCHC 280; 2023 (1) SA 583 (WCC) (18 March 2022)

The Court found that the consultation process with affected First Nations Groups regarding the River Club development was inadequate, with significant stakeholders excluded or insufficiently engaged. The heritage impact assessment was tainted by conflicts of interest and failed to meet the requirements of meaningful consultation as envisaged by the National Heritage Resources Act and constitutional principles. The applicants established a prima facie right to protection of cultural heritage and a reasonable apprehension of irreparable harm if construction continued. The balance of convenience favoured granting an interim interdict, as continued construction could render the review...

Citation
[2022] ZAWCHC 280
Parties
Applicant: Observatory Civic Association; Applicant: Goringhaicona Khoi Khoin Indigenous Traditional Council; Respondent: Trustees for the Time Being of Liesbeek Leisure Properties Trust; Respondent: Heritage Western Cape; Respondent: City of Cape Town; Respondent: Director: Development Management (Region 1), Environmental Affairs & Development Planning, Western Cape Provincial Government; Respondent: Minister for Local Government; Respondent: Chairperson of the Municipal Planning; Respondent: Executive Mayor, City of Cape Town; Respondent: Western Cape First Nations Collective
Court
Western Cape High Court, Cape Town
Jurisdiction
South Africa
Judgment Date
18 March 2022
Case Number
12994/21
Procedural Posture
Urgent Application / Interim Interdict (part A) Pending Review (part B)
Outcome
Interim interdict granted; construction halted pending meaningful consultation and review determination.
Judges
Goliath
Legal Topics
National Heritage Resources Act, Environmental Authorisation, Public Participation, Intangible Heritage, Consultation With Indigenous Groups, Interim Interdict
Administrative Law Environmental Law Land and Property National Heritage Resources Act Environmental Authorisation Public Participation Intangible Heritage Consultation With Indigenous Groups +1 more

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Parties

Observatory Civic Association

Applicant

Goringhaicona Khoi Khoin Indigenous Traditional Council

Applicant

Trustees for the Time Being of Liesbeek Leisure Properties Trust

Respondent

Heritage Western Cape

Respondent

City of Cape Town

Respondent

Director: Development Management (Region 1), Environmental Affairs & Development Planning, Western Cape Provincial Government

Respondent

Minister for Local Government

Respondent

Chairperson of the Municipal Planning

Respondent

Executive Mayor, City of Cape Town

Respondent

Western Cape First Nations Collective

Respondent

Procedural Posture

Urgent Application / Interim Interdict (part A) Pending Review (part B)

Legal Issues

  1. 1 Whether all affected First Nations Groups were adequately consulted regarding the River Club development.
  2. 2 Whether the environmental and land use authorisations were lawfully granted in compliance with statutory and constitutional requirements.
  3. 3 Whether the applicants established a prima facie right and reasonable apprehension of irreparable harm justifying interim interdictory relief.

Ratio Decidendi

The Court found that the consultation process with affected First Nations Groups regarding the River Club development was inadequate, with significant stakeholders excluded or insufficiently engaged. The heritage impact assessment was tainted by conflicts of interest and failed to meet the requirements of meaningful consultation as envisaged by the National Heritage Resources Act and constitutional principles. The applicants established a prima facie right to protection of cultural heritage and a reasonable apprehension of irreparable harm if construction continued. The balance of convenience favoured granting an interim interdict, as continued construction could render the review...

Court Disposition

Interim interdict granted; construction halted pending meaningful consultation and review determination.

Orders

  • First Respondent is interdicted from undertaking any further construction, earthworks or other works on erf 1[…], Observatory, Western Cape to implement the River Club development as authorised by environmental and planning authorisations, pending meaningful engagement and consultation with all affected First...
  • The three applications to strike are dismissed.