Bitter battle over who represents Khoi tribe in Amazon development
Goringhaicona Khoi leader called a fraud and a bully
A bitter battle is playing out in the Western Cape High Court over who can speak for a First Nations tribe in the controversial R4.6 billion Amazon development in Cape Town.
The development, at the confluence of the Black and Liesbeek Rivers where Khoi people were first dispossessed of their grazing lands, has been fiercely opposed by the Goringhaicona Khoi Khoin Indigenous Traditional Council with litigation led by Tauriq Jenkins. But in court this week, lawyers said that Jenkins did not represent the council and that it was in fact in favour of the development.
As Supreme High Commissioner of the Goringhaicona Khoi Khoin Indigenous Traditional Council, Jenkins has led the Goringhaicona in challenging the development at the River Club since 2016. The development includes a new Africa headquarters for global giant Amazon.
Heritage Impact Assessments, commissioned by the landowners and the developers Liesbeek Leisure Properties Trust, have confirmed the intangible heritage of the site.
In November last year, the council and Observatory Civic Association (OCA) sought an interdict against construction on the site pending a review of the decision taken by the City of Cape Town and provincial authorities. The interdict was granted in the High Court by Deputy Judge President Patricia Goliath on 18 March this year.
The developers’ leave to appeal was denied by the High Court, but then granted by the Supreme Court of Appeal, and construction on the site started again on 27 June.
This appeal against Goliath’s order was heard by a full bench in the High Court over the last two days.
In the interim, there has been a flurry of litigation since July, including an application for intervention in the case, brought by attorney Tim Dunn acting for a group also claiming to be the legitimate Goringhaicona Khoi Khoin Indigenous Traditional Council. Dunn’s clients claim Jenkins had no authority to take the council into litigation opposing the development and say they are in fact in favour of the development. This application was granted by Judge Mokgoatji Josiah Dolamo last month.
Before a full bench of judges Hayley Slingers, Elizabeth Baartman and James Lekhuleni on Tuesday, advocate Anton Katz, acting for Dunn, accused Jenkins of fraud, of misrepresenting his authority in the council and of “bullying” First Nations leaders into signing affidavits opposing the development. He said Jenkins – who had legal representation for the council at the time – had told Judge Goliath the majority of Khoi leaders had not been consulted on the development. Goliath’s order had hinged on this matter of lack of consultation, said Katz.
He made much of Jenkins having named |Xam Bushman leader Petrus Vaalbooi as someone opposing the development. Yet, Dunn had an affidavit from Vaalbooi stating he had never met Jenkins and in fact supported the development. Thus, Katz said, fraud had been perpetrated against the court. Katz stated Jenkins’ papers before Goliath were “replete with this kind of invective” which was Jenkins’ “modus operandi”.
Jenkins, who did not have legal counsel was given 30 minutes to respond. He had tried to file a 1,500 page responding affidavit, but Judge Baartman said it had been filed too late and had not been paginated or indexed according to court standards.
In court, Jenkins, a lone figure against an array of five full legal teams, listed his qualifications and said he was being subjected to a SLAPP suit.
He said he had simply listed Vaalbooi as one of a number of First Nation leaders who had not been consulted and had not claimed to have spoken to Vaalbooi. He said national chair of the |Xam council, Cedras Kleinschmit, had told him Vaalbooi was opposed to the development at the time.
He also argued the council represented by Dunn claimed to have deposed him as Supreme High Commissioner, and also to have deposed Paramount Chief Aran, at a Goringhaicona National Executive Council meeting to which neither he nor Aran were party. He said they had irregularly appointed themselves and had no right to bring legal action on behalf of the council.
Advocate Sean Rosenberg, acting for the developers, also insisted Jenkins had defrauded the court by claiming leaders such as Vaalbooi were in opposition to the development, rather than having simply been excluded from consultation.
Following these responses, Jenkins requested the court allow him time to obtain legal counsel, but this was denied by Baartman.
For the next day and a half, the court considered the appeal against Goliath’s ruling. The appeal was not opposed by the Observatory Civic Association, who, according to chair Leslie London are saving what little money the civic has for litigation for the pending review proceedings.
But lawyers for the developers, the Goringhaicona Khoi Khoin Indigenous Traditional Council represented by Dunn, the Western Cape Government, the City of Cape Town, and the First Nations Collective, a grouping that emerged in favour of the development in 2019, all took turns over a day and a half to argue that Goliath’s judgment was wrong.
Goliath, in her judgment, had stated: “The fact that the development has substantial economic, infrastructural and public benefits can never override the fundamental rights of First Nations Peoples” who have a “deep, sacred linkage to the development site”.
She had ordered that meaningful consultation and engagement with all affected First Nations peoples take place as described by Heritage Western Cape, pending a determination of the review proceedings.
The five legal teams argued that meaningful consultation had not been defined, that no timeline for engagement and consultation had been set, nor who was to be consulted.
Regarding the heritage value of the site, the lawyers focused on the degraded nature of the landscape before the development, with a short golf course alongside a canalised and polluted part of the Liesbeek River.
Advocate Ron Paschke, for the City, said elements such as the inclusion of Khoi symbols and road names within the precinct, an indigenous garden, amphitheatre, and First Nations media centre meant heritage would be promoted.
Paschke said the City had allowed ample opportunities for consultation at forums such as the Municipal Planning Tribunal, and the council and Observatory Civic Association had participated in these.
He revived the developers’ claim that construction delays would prompt Amazon to pull out of the development, which would mean a loss of R4.5-billion in direct investment and R8.55-billion in increased economic output. There would also be the loss of 19,000 job opportunities.
Advocate Ismail Jamie, for the First Nations Collective, said while it was clear there were groups opposed to the development, “the majority are in favour and within the First Nations Collective”.
After all the parties had exhausted their arguments, Judge Baartman said a number of Khoi elders, including First Indigenous Nation of Southern Africa representative Dr Gregg Fick, who had asked if they could address the court, should step forward. She then said they would not be allowed to speak. Jenkins was not allowed to speak to the court either.
Baartman said the court’s decision would be delivered “sooner rather than later” and adjourned the hearing.
Speaking outside the court, Fick said he and the other elders had wanted to let the judges know they had not been consulted about the development, an issue at the core of Goliath’s judgment. He said they had been “brought like small little children” or “slaves” to the front of the court only to be told they cannot speak. “The judgment is about us, about those people who were not consulted.”
He said he would lay a complaint with the Judicial Services Commission and approach the SA Human Rights Commission.
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