In South Africa, the Court decides wealth cannot override the fundamental rights of First Nations Peoples

For the past few years, Amazon has said it’s building its new African headquarters in a neighborhood of Cape Town called Observatory. The site, known as the River Club site, is at the confluence of the Liesbeek and the Black Rivers. It’s a flood plain that had been zoned for Open Space and conservation. None of that mattered to Amazon and its partners, who proceeded to purchase property, permits and politicians, and three years ago began development of an urban park filled with ten-story buildings, the Two Rivers Urban Park, or TRUP. That flood plain is also sacred space for the indigenous Goringhaicona Khoi and San First Nation peoples. On Friday, March 18, Western Cape Deputy Judge President Patricia Goliath temporarily but fully stopped all development and construction on the site. Why? The developers failed to consult with the Goringhaicona Khoi and San First Nation peoples: “There had not been meaningful consultation with First Nation groups.” Some version of that statement figures repeatedly throughout the discussion and conclusion.

Judge Goliath’s conclusion begins, “The matter ultimately concerns the rights of indigenous peoples. The fact that the development has substantial economic, infrastructural and public benefits can never override the fundamental rights of First Nations Peoples. First Nations Peoples have a deep, sacred linkage to the development site through lineage, oral history, past history and narratives, indigenous knowledge systems, living heritage and collective memory. The TRUP site is therefore central to the tangible and intangible cultural heritage of the First Nations Peoples. I am of the view that the fundamental right to culture and heritage of Indigenous Groups, more particularly the Khoi and San First Nations People, are under threat in the absence of proper consultation, and that the construction of the River Club development should stop immediately, pending compliance with the fundamental requirement. I am satisfied that the Applicants had established a prima facie right, and a reasonable apprehension of irreparable damage and imminent harm if an interim interdict is not granted. I am further satisfied that the balance of convenience favour the granting of an interim interdict, and is the only appropriate remedy in the circumstances. In my view, Applicants have shown, on the evidence and the law, compliance with all the requirements for interim relief … I am accordingly satisfied that it is constitutionally appropriate to grant an interim interdict.”

The developers tried everything, from creating tension among First Nations Peoples to claiming they had conducted an impartial consultative and review process. None of that worked in Judge Goliath’s court. What mattered was the evidence and, equally, that the dignity of the First Nations People be respected.

In 1510, on the site of the Two Rivers Urban Park, wherein River Club is located, a Portuguese party tried to steal cattle from the Goringhaicona Khoi. The Khoi repelled them. A larger Portuguese force returned, to `teach the Khoi’ a lesson. The Khoi warriors soundly defeated the Portuguese, killing 64 Europeans, including their leader and eleven captains: “This devastating defeat put pause to Portugal’s run of victories in Africa and Asia.” In 1659, on the same site, the First Khoi-Dutch War ended with a resounding defeat of the Khoi. This established the rule of the Dutch East India Company, and began centuries of dispossession, immiseration and enslavement for the Khoi Peoples.

From the first announcement of Amazon’s intention, representatives of the Khoi and San Peoples argued that these specific sites are “holders of memory”. On Friday, Judge Goliath agreed. Khoi, San and their allies are celebrating and preparing for the next stages. As Goringhaicona Khoi Khoin Indigenous Traditional Council Commissioner Tauriq Jenkins said, “We are celebrating at the epicentre of liberation and resistance in defence of our country. We welcome everyone who would like to join us as we acknowledge the halting of the current destruction on the site.” There is no reconstruction without consultation. Spread the word far and wide: Wealth and power cannot override fundamental rights.

(By Dan Moshenberg)

(Photo Credit 1: GroundUp / Marecia Damons) (Photo Credit 2: Leon Lestrade / African News Agency / Weekend Argus)