The far-left agitators and fraudulent activists behind the legal obstructionism against the development that will host Amazon’s local headquarters get a judicial spanking.
It is hard to fathom the minds of left-wing activists. With one breath, they claim to represent the poor and downtrodden, while with the next they rail against the evils of the economic development that might relieve this poverty.
They see no contradiction in being pro-poor and anti-capitalist at the same time.
It never occurs to them that blocking economic development is inherently anti-poor and pro-poverty. They don’t see that South Africa’s poverty and unemployment are consequences of woefully inadequate economic activity – inadequacy caused by over-regulation, socialist policies and government corruption.
Instead, they follow their out-dated, anti-capitalist instincts and protest every major development they can milk for publicity and donations. Alongside the protesting, they launch legal attacks, often on the flimsiest of grounds, which they appeal for years in an attempt to delay development.
The hope is always that the delay and the costs will become intolerable to the developer, and that they will withdraw in frustration and take their economic activity to some country other than South Africa (as Shell did, thanks to the activist obstructionism over drilling for shale gas in the Karoo).
Punitive costs
It is with some satisfaction, then, that one can reflect on the fact that the Supreme Court of Appeal denied the Observatory Civic Association (OCA) leave to appeal a November 2022 ruling that overturned the urgent injunction against construction it obtained in March last year, on the very reasonable grounds that the injunction was procured by fraud.
The main reason the OCA needed to appeal this ruling, given that the full case on the merits has yet to be heard, is that the court ordered it to pay legal costs running into many millions, pointedly adding that a punitive cost order would have been appropriate but could not be granted because it was not applied for.
One assumes OCA cannot afford to pay these costs. That’ll teach them to fabricate the grounds for obstructing a legitimate, lawful by-the-books, beneficial development project.
River Club
I’ve sketched the outlines of the dispute before. The Liesbeek Leisure Property Trust spent years conducting all the necessary impact studies and getting all the necessary approvals to build a mixed-use development at the confluence of the Liesbeek and Black Rivers.
The site used to host a nine-hole mashie golf course known as the River Club, which included a restaurant and a bar. The rivers were cesspools of waste and pollution. This was not a pristine site, preserved for the sake of heritage, its ecological value, or – as the OCA and its henchmen falsely claimed – for grazing the cattle of indigenous peoples.
The developers included commitments to rehabilitate the rivers and restore the wetlands at the confluence, and will also add affordable housing and other attractive facilities to the complex, which is to be anchored by the South African headquarters of the online retailer Amazon.
The development really does look magnificent, and according to both the developers and the City of Cape Town – which welcomed the denial of leave to appeal – it will create between 5 000 and 6 000 direct jobs and 19 000 indirect job opportunities.
Almost everyone was in favour of it, including the Western Cape First Nations Collective, but not including the OCA, chaired by public health professor Leslie London, and one Tauriq Jenkins, who claimed to represent the Goringhaicona Khoi Khoin Indigenous Traditional Council.
Anti-capitalist motive
I wrote about them, too. It turned out London is an old-school leftie and Jenkins is a professional activist.
They did not strike me as people who were bona fide concerned about the environment or about the heritage of indigenous peoples. The narrative they weaved simply didn’t hold up. Their backgrounds suggested a rather more crude and dogmatic anti-capitalist motive for opposing one of the largest multinational corporations in the world, no matter what.
The judge, in the November ruling (which is worth reading in all its scathing glory), agreed that ‘Mr Jenkins was determined to stop the development at all costs’, and that those costs included an elaborate scheme to fabricate a constitution for the Goringhaicona group he claimed to represent, invent endorsements from people who later swore never to have met him, and fraudulently obtain the signatures of traditional leaders who said they had no idea what they were signing and actually supported the development.
The court found that Jenkins had no right to act on behalf of the group, and that the prior court would have reached a different conclusion than granting the interdict he and the OCA applied for, since he established his standing by fraud. Understandably, that came with a costs order against the OCA, who was the first applicant, and that cost order now stands.
Vexatious litigation
For now, construction on the project, which is already half-built, is proceeding apace.
It is unclear what will now happen to the main challenge the OCA and Jenkins brought against the development. All this hoohah was just about the urgent interdict which they fraudulently obtained.
Presumably, the OCA isn’t rolling in cash, so it will be hard-pressed to fund further legal action. Jenkins has now been burnt as a credible applicant in any future court case, so he can’t proceed with it, either.
The reputation of the law firm of Cormack Cullinan, an ecological rights lawyer who seems to be the go-to guy if you want a legal strategy to delay or obstruct economic development, will also not have benefited from its association with a complete fraud like Jenkins.
The grassroots opposition narrative that London and Jenkins fabricated has evaporated like the table cloth on Table Mountain on a bright summer morning.
If I were a judge, and this matter crossed my desk, I would strongly consider dismissing it as vexatious litigation, given the history. (I’m not a judge, and don’t know whether a judge can do that, but I’m sure you get my point.)
Grave danger
This case is a perfect demonstration of my long-standing thesis that anti-capitalist activists who claim to act on behalf of the environment or of grassroots people’s organisations seek nothing more than to thwart economic development by whatever means possible, legal or otherwise.
They are a grave danger to the South African economy. Stuck in the quagmire of socialism, corruption, over-regulation and collapsing infrastructure as it is, activist obstructionism threatens to kill any green shoots that manage to emerge against all these odds.
They are also a danger to those who raise legitimate environmental, cultural or heritage concerns. It would be nice to live in a world in which the concerns raised by protesters claiming to act in the public interest could be taken seriously, without first having to discern whether they are spurious claims motivated by a destructive ideological dogma, or based on fraud entirely.
Let us hope, therefore, that the ruling denying OCA leave to appeal against facing the consequences of the fraudulent case it brought to court serves as a warning to other would-be legal obstructionists.
If you have a real case, by all means, go ahead and press it. That is your right, and our courts play an important role in safe-guarding our rights.
If you just don’t like a development, but you don’t have a case, stop wasting everyone’s time with vexatious litigation designed only to obstruct and delay productive economic activity. And expect to get punished if you do.
The views of the writer are not necessarily the views of the Daily Friend or the IRR
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Image: An artist’s impression from https://theriverclubct.co.za/