In a fresh legal bid, activists and indigenous people have approached the courts to halt construction as developers move ahead with building tech giant Amazon’s headquarters in Africa on alleged sacred land.
In the Western Cape High Court on Friday, lawyers for a civic organisation and indigenous people claimed that developers were undermining the country’s judiciary.
The Observatory Civic Association (OCA), backed by indigenous people from the Goringhaicona Khoi Khon Traditional Council (GKKITC), launched a bid to stop the Liesbeek Leisure Properties Trust (LLPT) from going ahead with construction on the site.
On March 18, Western Cape Deputy Judge President Patricia Goliath granted an interdict halting construction on the site with immediate effect, pending a final determination of the review process of the authorisations granted by the City and the provincial government and the conclusion of meaningful engagement with affected First Nations people.
However, in June the developers, LLPT, commenced building works on the precinct which is intended to house Amazon Web Services’ African headquarters and other businesses.
The court heard on Friday that the developers were rushing to meet adjusted commitments to complete construction by November and hand over the buildings in December next year.
The latest legal bid also comes amid another attempt by opponents of the development to hold the LLPT in contempt of court.
The contempt of court case, initially set down for hearing at the end of last month, was postponed to a date yet to be set.
At the core of the fresh urgent application for an interdict is an attempt to seek clarification on whether the earlier order by Goliath was final, as argued by the developers, or interim relief.
Senior legal counsel for the OCA Pete Hathorn argued the order was pending a review process and, therefore, could not be deemed as final.
“Whether or not the order granted by Judge Goliath is wrong, as argued by the respondents, is irrelevant.
“It is binding to everyone and has to be obeyed unless successfully set aside,” argued Hathorn.
He also argued that the decision by the LLPT to go ahead with building on the site “was against the rule of law and the legitimacy of the judiciary”.
“No one should be left with an impression that court orders can be flouted with impunity or are not binding.
“The applicant, in this case, has a clear right to the enforcement of the interdict,” Hathorn said.
He argued the continued construction on the site would cause irreparable harm to the indigenous and affected peoples.
Hathorn said the further the construction process advanced, the less likely the applicants would be granted effective relief if they were successful in the review court proceedings.
However, senior legal counsel for the developers argued that if another interdict were to be granted it would cause financial damages to those behind the R4.5 billion project cited in papers as Jody Aufrichtig, James Tannenberger, Nicholas Ferguson, Allan Mundell and Adam Blow.
Lawyer for the developers Sean Rosenberg told the court the construction work being undertaken was in the northern part of the site, measuring approximately 90 000m2, where Amazon would be housed.
He said construction work in the 60 000m2 area earmarked for a mixed-use development was not scheduled to start in the near future.
“The LLPT stands to be prejudiced if there’s a delay in the development project.
“The development as a whole may be derailed as it depends on Amazon taking up space,” argued Rosenberg.
In court papers, LLPT also stated that under the development and lease agreements it had concluded with the Amazon Development Corporation (ADC), ADC was entitled to cancel if practical completion was delayed by more than six months.
“Given these time frames, and the substantial delays that have already transpired, it is clear that another month of delay in construction, as would be occasioned by the interdict now sought, poses a genuine risk of the entire development being terminated by the ADC,” argued Rosenberg.
He told the court that the developers would incur enormous financial penalties including from ADC, financier Rand Merchant Bank and the main contractor, WBHO Construction (Pty) Ltd.
He said the costs ran into many millions of rands.
Hathorn argued that the trust had built itself into an impregnable position and viewed the conduct as defeating the order by Judge Goliath.
“The respondent should receive little sympathy from this court for it continues to act unlawfully,” he argued.
In her order, Judge Goliath also noted that “the fundamental right to culture and heritage of Indigenous groups, more particularly the Khoi and San first nations peoples, are under threat in the absence of proper consultation”.
Hathorn argued that the issue of consultation remained relevant.
The matter was adjourned and parties were asked to submit written arguments and responses next week, thereafter judgment would be handed down.
The review proceedings would be heard on October 11 and 12.