A High Court judgment handed down in the Western Cape High Court earlier this year, which halted the development of the R4.6 billion River Club development, has been overturned. This was because it was obtained “fraudulently”.
Justices Elizabeth Baartman, Hayley Slingers and James Lekhuleni ruled on Tuesday that Taurig Jenkins, who purported to represent the Goringhaicona Khoi Khoin Indigenous Traditional Council (GKKITC) in the injunction petition filed by Vice President Patricia Goliath. determined to stop the development at all costs”.
An annulment petition filed by other members of the GKKITC, which was heard by the full court, found that he had “created a constitution to suit his purpose and betrayed the trust of others in him,” the three judges ruled.
In March, Judge Goliath granted the preliminary injunction to stop all further development in a “large urban area”, including Amazon’s regional headquarters, at the confluence of the Liesbeek and Black Rivers.
Judge Goliath ordered the injunction to remain in place pending “meaningful consultation” with all Khoi and San First Nations residents pending a review of appropriate environmental land use permits for development in the historically and culturally significant floodplain.
But the GKKITC cried foul and applied to overturn the judgment, arguing that Jenkins had no authority to act in its own name, or on behalf of other First Nations groups.
Judge Baartman, writing Tuesday’s ruling, said GKKITC, Regent Michael Hansen, Chief Shiraatz Mohammed and Peter Ludolph (applicants) had filed a motion to quash against Jenkins, Delroque Arendse and the Observatory Civic Association (respondents) on the basis that an injunction was obtained by fraud.
The judge said GKKITC was a group of individuals who shared the same heritage and sought its protection.
Jenkins had claimed to have filed the injunction on their behalf when in fact they were not opposed to the development of what had become a “degraded site”.
“The administration received an application that called for improvements to the river, public open spaces adorned with native vegetation in lieu of golf courses, the creation of a museum and an amphitheater for use by both First Nation Groups and other members of the public and residential.” which would include affordable housing.
“Significantly, it would also include public transport infrastructure. The relevant authorities, after extensive public participation over several years, granted the required permits and the development broke ground,” said Judge Baartman.
Jenkins and the Observatory Civic Association argued before Judge Goliath that they had not been properly consulted.
Jenkins said he was authorized to act for the GKKITC under a resolution under its constitution from July 2021. This had been approved by Paramount chief Aran and others. He said in the charging document that “given the urgency” he had not been able to obtain a verified statement.
He also said the leaders of the vast majority of First Nation organizations had “confirmed in conversations with me” that they were strongly opposed to the development.
In the annulment application, GKKITC said the only binding constitution is the one adopted in 2018.
Two of the people Jenkins testified had authorized him to sue had refused to do so, GKKITC said. One signer, aged 85, said he was tricked into signing without being told what he was signing.
Following the Goliath ruling in March this year, the GKKITC Executive Council had met and “rescinded” any apparent authority given to Paramount chief Jenkins or Aran, deciding that they would have to resign or be fired and that the rescission application would be upheld.
Judge Baartman said: “A judgment produced by fraud cannot stand.
However, it had to be proven that incorrect evidence had led the judge to reach a different conclusion.
She said ‡Komani San leader Petrus Vaalbooi, who Jenkins claimed was opposed to the development, had said in the cancellation application: “I absolutely deny that I have ever spoken to him … I do not know who this person is. and I have never met him.”
Vaalbooi said he and his people support the development “unreservedly and unconditionally”.
Judge Baartman said Jenkins had claimed some people had a “change of mind”.
“But this does not answer Vaalbooi’s allegations that he did not meet with Mr. Jenkins … moreover, Judge Goliath relied on Jenkins’ allegations,” Judge Baartman said.
Similarly, another IXau-Sakwa leader, Chief Danster, had also categorically stated that he had never had any contact or discussion with Jenkins or Aran and expressed “shock” that his name had been used to provide anything that he didn’t know about credibility. .
“It appears that Mr. Jenkins was determined to stop the development at all costs,” Judge Baartman said.
“I do not come to this conclusion lightly,” she said, noting that Jenkins had been “despicably absent” from a hearing the day before the main hearing and that he had tried to submit a 1,500-page statement at an untimely time.
The judge said Judge Goliath had acted on his misrepresentations and she would not have accepted the application had she been aware he did not have the authority to bring the action.
In a related application heard at the same time by the same judges, the provincial government, Cape Town, the developers and the Western Cape First Nations Collective also appealed Judge Goliath’s ruling.
The three appellate judges concluded that the Observatory Civic Association and Jenkins had not established a demonstrable right to an injunction in any event because they could not demonstrate irreparable harm if the development continued.
Judge Baartman said the inquiry had found many opportunities, including enhancing the area’s heritage value and increasing unemployment, would outweigh the harm.
The civic organization Observatory was ordered to pay legal costs in all the various court cases.
© 2022 GroundUp. This article was first published here.