Cape Town - As the legal battle over the contentious River Club development continues, judgment has been reserved concerning Tauriq Jenkins, high commissioner of the Goringhaicona Khoi Khoin Indigenous Traditional Council’s (GKKITC) authority to oppose the development in the courts on behalf of the GKKITC.
A group of supporters of Jenkins picketed outside the Western Cape High Court this week, holding placards while they shouted, “Money does not buy our love” “Stop the destruction”, and “Save our heritage”.
The David versus Goliath River Club legal battle saw the Western Cape High Court set aside an earlier judgment by Deputy Judge President Patricia Goliath, who had last year interdicted construction at the River Club site.
The initial interdict came after the Observatory Civic Association (OCA) and GKKITC sought to halt the R4.6-billion development, citing irreparable harm and a lack of meaningful consultation.
The high court later lifted Judge Goliath's interim interdict and withdrew Jenkins's authority to represent the GKKITC in the matter.
Jenkins seeks leave to appeal at the Supreme Court of Appeal.
Legal representative for Jenkins, advocate Roseline Nyman argued that the matter was complex in nature as it “narrates the relationship between fundamental cultural rights and the obligations of private entities to respect such rights”.
“The primary purpose of the application was not to rescind the Goliath AJP Order and Judgment, but to challenge the status of the applicant (Jenkins) to represent the Goringhaicona indigenous group and to nullify their opposition to the development.
“A finding of fraud is a statement of law made by the Court.
“The legal requirements for fraud were not put to the applicant.
“It is necessary to reiterate that this Honourable Court concluded that the applicant had committed fraud because the affidavits submitted by the respondent stood unopposed. It is crucial for this court to consider the impact of the findings of fraud on the applicant,” court papers read.
“These findings not only have an impact on the applicant himself but, on the majority of members of the Goringhaicona who rightfully gave the mandate to the applicant to act on their behalf and who genuinely believe that the development will destroy land that forms part of their Khoi-Khoin heritage and culture.
“Furthermore, the court room was packed with standing room only, with supporters of the applicant.
“To wrongfully conclude that there is no public interest in the matter, would effectively be disregarding their constitutionally guaranteed right to culture,” court papers read.
Legal representatives for Regent Edmen Michael Hansen, Chief Shiraatz Mohammed and Peter Ludolph, Anton Katz SC argued the rescission order was unappealable and any appeal would bear no prospects of success.
“Notwithstanding that his answering affidavit was not before the court, the court gave Mr Jenkins the opportunity to respond to the serious allegations of fraud.
“Mr Jenkins was given ample opportunity to appoint legal representatives.
“Factual issues raised in the late and unadmitted answering papers cannot be considered as a reason for appealing the rescission order.
“Mr Jenkins is not left without recourse in regard to the governance of the Goringhaicona.
“Nothing precludes him from engaging in an internal voting procedure to address the governance of the Goringhaicona.
“The remedy sought in the interim interdict is redundant – construction has continued, unabated, for almost six months.
Mr Jenkins’ motives for this leave to appeal application are called into question.
The application for leave to appeal is not motivated by a genuine desire to address the interdict or the governance of the Goringhaicona, but it is a personal endeavour by Mr Jenkins, to save his name,” court papers read.
Cape Times