Amazon appeal set for January

The appeal against the ban on the R4.6bn Amazon office block and park development in Cape Town will be heard by a full bench of the high court in January. But building is continuing, so the project may be fairly advanced by then. The five-month delay before the case will be heard could be viewed as a win for the developer, the Liesbeek Leisure Properties Trust.

The appeal against the ban on the R4.6bn Amazon office block and park development in Cape Town will be heard by a full bench of the high court in January, but as building work is continuing the project may be fairly advanced by then.

After the Supreme Court of Appeal ordered the high court to hear an appeal, Western Cape judge president John Hlophe wrote to the parties fighting the development in court, and said a full bench will hear the two interlinked court cases in 2023.

The five-month delay before the case is heard could be viewed as a win for the developer, the Liesbeek Leisure Properties Trust (LLPT), which resumed construction in June while at the same time filing an appeal against the March ban at the Supreme Court of Appeal.

The LLPT development envisages turning the private golf course into an office park, a public park with 6km of cycling trails, an indigenous garden, and a First Nations heritage centre and road upgrades. The developer will set aside R38m to rehabilitate two rivers.

Western Cape deputy judge president Patricia Goliath interdicted the construction in March, and ordered fresh consultations with Khoi and San people, some of whom are opposed to the development. She rejected the developer’s right to appeal.

The development was supported by eight First Nations groups, who claim to represent the Cape Peninsula Khoi. But it was opposed by the Goringhaicona Khoi Khoin Traditional Indigenous Council and the Observatory Civic Association, led by university professor Leslie London, who asked the court to halt construction saying that concrete would damage the land they view as spiritually significant.

The two groups opposing the development have also filed a contempt of court application against the developer as they claim it is breaching the ban through continued construction.

They do not agree that the appeal renders the ban invalid. The contempt case will also be heard in January.

Building was carried out from September until the March ban, and resumed in June when the developer filed its appeal. By January, about 12 months of construction will have been completed.

The groups in opposition are trying to get the court to ban construction temporarily while the other ban is being appealed against. They have informed the judge president that they will enrol a new case for a ban, one they had initially tried to bring in July but withdrew.

London said the opposition is “concerned that the developers are creating what judge Goliath described as an ‘impregnable position’”. The court may then be reluctant to stop construction once it is so advanced as the review set down after the court cases would be rendered moot since the building would be almost complete.

London said this is “precisely the strategy being pursued by the developers — so that even if they lose the [January] appeal and are found in contempt of court, a court will be reluctant to reverse the situation”.

The opposition’s lawyers have asked Hlophe for a meeting to argue for the new case to be heard urgently.

Meanwhile, in a third legal matter a group claiming to be the Goringhaicona Khoi Khoin Indigenous Traditional Council has withdrawn its opposition to the development and its environmental appeal. It says that Tauriq Jenkins, who led the opposition in court, is not its leader in terms of its 2018 constitution, and has no legal standing to represent it in court. Jenkins has not filed papers yet to dispute the withdrawal and claim leadership of the group.

If the group’s opposition disappears, much of the challenge to the development will fall away. London called the claims of the group disputing Jenkins’s leadership, “trumpedup, implausible, inflammatory and contradictory”.