The Observatory Civic Association (OCA) has expressed its disappointment in the Supreme Court of Appeal’s (SCA) dismissal of their application for leave to appeal the Western Cape High Court’s judgment to halt construction at the River Club Development.
This means further construction can go ahead, unhampered by court orders.
The court said the requirements for special leave to appeal were not met.
In March last year, Western Cape Deputy Judge President Patricia Goliath ruled that construction be paused and that the developers engage with all affected parties (“Order suspends building operation”, People’s Post, 29 March).
After a short pause, the developers went ahead with the construction of the R4,6 billion complex in Observatory, which is set to house Amazon’s African headquarters, despite the pending legal challenges.
In November last year, Goliath’s order was revoked by the Western Cape High Court with a finding that the decision “was induced by fraud”.
Leslie London, chair of OCA, says: “We think there was an urgent case for an appeal and the Supreme Court simply didn’t consider those matters.”
London says they are considering various options which include approaching the Constitutional Court.
“We are consulting our lawyers. Our application for leave to appeal the order was based, we believe, on sound legal arguments that have not been given an opportunity to be fully aired as a result of the dismissal of the application. We are in the process of discussing with our lawyers how best to respond, we haven’t thrown in the towel.”
The City has welcomed the SCA’s decision and says it was a major boost for Cape Town’s economy.
Deputy Mayor and Mayco member for spatial planning and environment Eddie Andrews says: “The City of Cape Town welcomes the SCA’s decision to protect this vital development that will hold enormous heritage, environmental, economic, infrastructural and other benefits for Cape Town and its residents.”
Andrews says while the City respects the right of civil society to challenge invalid decisions, the OCA’s litigation is groundless and an abuse of court.
“Moreover, the misguided application undermined the public interest. The OCA threatened to destroy the only viable plan to rehabilitate polluted canals into natural rivers and to convert a private golf course and parking lot into a heritage-affirming development which includes affordable housing.”
According to Andrews, the OCA’s litigation has harmed Cape Town’s global reputation as an investment destination, thereby “costing us jobs and opportunities” for economic recovery and alleviating poverty.
“The outcome of this court case once again confirms the City’s commitment to following due process in considering development applications, while trying our utmost to create an environment that is welcoming to investors as we need to grow our economy.
“The High Court and the SCA correctly ordered the OCA to pay the City’s costs. Costs orders dissuade vexatious litigation such as this and the City is duty-bound to try to recover public funds. Therefore, the City does not intend to abandon the courts’ costs orders.”
London expressed his dissatisfaction with the court’s decision to award costs against them and said their litigation was not vexatious but in the public interest.
“Our papers show clearly that our application was neither frivolous nor vexatious, nor inappropriate and still has substantial prospects of success.”
Liesbeek Leisure Properties Trust (LLPT), developers for the site, said in a press statement it feels vindicated by the SCA order.
“Over a period of more than four years, it conducted an all-encompassing and exhaustive environmental, heritage and planning application process in full compliance with all applicable statutory requirements.
“Yet, was dragged to court by the OCA and its associates in a manifestly inappropriate strategy to try and stop the development at all costs. The appeal judgment of the high court makes it plain that the OCA failed to establish even a prima facie case as it found that the OCA “failed the first hurdle”,” read the statement.
“Whilst we have the greatest respect for the Courts, the Supreme Court of Appeal’s decision and that of the Full Court will, unfortunately, have a chilling effect on any entity that does not have deep pockets to take on an administrative injustice in South Africa, making a mockery of a Constitution that promises the Promotion of Administrative Justice,” concludes London.
