Observatory Civic Association and Another v Trustees for the Time Being of Liesbeek Leisure Properties Trust and Others

The Observatory Civic Association and Goringhaicona Khoi Khoin Indigenous Traditional Council sought to interdict the Liesbeek Leisure Properties Trust (LLPT) from continuing construction of the River Club development on Erf 151832, Observatory. The 14.7-hectare site is located near the confluence of the Black and Liesbeek Rivers within the Two Rivers Urban Park (TRUP), an area of high cultural, historical, and environmental significance to First Nations Peoples, particularly the Khoekhoe groups. The developer obtained environmental authorisation from provincial authorities on 20 August 2020 (confirmed by the Minister on 22 February 2021 after appeals) and land use planning authorisation from the City of Cape Town's Municipal Planning Tribunal on 30 September 2020 (confirmed by the Mayor on 18 April 2021 after appeals). The proposed development is a large-scale mixed-use development of approximately 148,425m² with Amazon as anchor tenant. Heritage Western Cape (HWC) had declared the site a provisional protected area in April 2018 (which lapsed in April 2020) and consistently maintained that the Heritage Impact Assessments (HIAs) did not meet the requirements of section 38(3) of the National Heritage Resources Act (NHRA), particularly regarding intangible heritage and meaningful consultation with First Nations Peoples. The consultation process was controversial, with AFMAS Solutions (Mr Rudewaan Arendse) conducting engagements that resulted in the formation of the First Nations Collective (FNC) supporting the development, while other groups including the applicant Goringhaicona withdrew or opposed the process. Construction commenced on 26 July 2021 after a water use licence suspension was lifted. The applicants launched review proceedings on 2 August 2021 seeking to set aside all four authorisation decisions.

• Whether the applicants established the requirements for an interim interdict under the test in Setlogelo v Setlogelo and as refined in National Treasury v Opposition to Urban Tolling Alliance
• Whether there was adequate and meaningful consultation with all affected First Nations Peoples as required by the National Heritage Resources Act and constitutional principles
• Whether the environmental and planning decision-makers properly complied with section 38(8) of the NHRA in determining that the Heritage Impact Assessment met the requirements despite Heritage Western Cape's contrary view
• Whether the consultation process with First Nations Peoples conducted by AFMAS Solutions was adequate, impartial and complied with international best practices including the San Code of Ethics
• Whether the exclusion of certain First Nations groups from the consultation process rendered the decisions unlawful
• Whether South Africa's international law obligations regarding indigenous peoples' rights (including rights under ICCPR, ICESCR, African Charter, and UNDRIP) and the requirement for free, prior and informed consent (FPIC) were met
• Whether the applicants' delay in instituting proceedings affected their entitlement to interim relief
• Whether the balance of convenience favoured granting the interdict given the economic benefits of the development versus protection of intangible cultural heritage

The court granted an interim interdict restraining the First Respondent (LLPT) from undertaking any further construction, earthworks or other works on the River Club development site pending: (a) conclusion of meaningful engagement and consultation with all affected First Nations Peoples as envisaged in Heritage Western Cape's interim and final comments; and (b) final determination of the review proceedings. The three striking-out applications were dismissed with no order as to costs. Costs of the main application were reserved to be determined at the finalization of the review. The parties were granted permission to approach the court for further directives to facilitate an expedited review and to amplify or amend the terms of the order.

The fundamental rights to culture and heritage of First Nations Peoples under sections 30 and 31 of the Constitution require meaningful consultation with all affected indigenous groups before development decisions are made affecting sites of cultural and heritage significance. A consultation process is inadequate and unlawful where: (1) the facilitator is conflicted by membership in a group supporting the development; (2) not all affected First Nations groups are included or adequately consulted; (3) the process does not comply with accepted international best practices for indigenous consultation including the San Code of Ethics; and (4) the process is divisive and creates tensions rather than promoting inclusion and consensus-building. Where such inadequate consultation renders decisions potentially unlawful and threatens irreparable harm to intangible cultural heritage, an interim interdict must be granted to halt construction pending proper consultation and review proceedings, even where this causes economic prejudice to the developer who proceeded with construction at its own risk in the face of known legal challenges. The requirements for interim relief under Setlogelo as refined in National Treasury v OUTA are satisfied where applicants establish prima facie rights based on inadequate indigenous consultation, reasonable apprehension of irreparable harm to intangible heritage, and balance of convenience favouring protection of fundamental constitutional rights of vulnerable indigenous groups over economic interests.

The court made several non-binding observations: (1) It noted that the provisions of international law instruments (ICCPR, ICESCR, African Charter, UNDRIP) regarding indigenous peoples' rights are relevant to interpreting constitutional provisions, though it did not definitively determine whether free, prior and informed consent (FPIC) is required under South African law, leaving this for determination in the review. (2) The court observed that developers who persist in construction knowing of pending legal challenges may derive benefits by building themselves into an "impregnable position" that could influence review proceedings, but that courts should not allow this tactical consideration to affect the grant of interim relief where fundamental rights are at stake. (3) The court noted that its order should not be construed as criticism of the development itself or the views of the First Nations Collective who support it, emphasizing that the core issue is proper consultation process rather than the merits of the development. (4) The court observed that an independent consultant should be appointed to conduct proper consultation to address the current tensions among First Nations groups. (5) The court commented that in review applications, applicants have the right to supplement their case after the Rule 53 record is filed, and therefore striking out applications relating to matters that may be refined in the review should generally be refused where respondents can respond to new matter later. (6) The court noted that Heritage Western Cape's decision not to participate in the proceedings did not diminish the importance of its concerns about compliance with the NHRA.

This judgment is significant for establishing the paramount importance of meaningful consultation with all affected indigenous peoples in development projects affecting sites of cultural and heritage significance. It affirms that economic benefits, no matter how substantial, cannot override the fundamental rights of First Nations Peoples. The case clarifies that consultation processes must be genuinely inclusive, impartial and comply with international best practices including the San Code of Ethics. It establishes that facilitators of consultation processes must be truly independent and not conflicted by membership in groups supporting the development. The judgment demonstrates judicial willingness to intervene even after construction has commenced where fundamental constitutional rights of vulnerable indigenous groups are at stake. It reinforces that section 38(8) of the NHRA requires genuine engagement with heritage authorities' concerns about intangible heritage. The case also clarifies the application of the refined Setlogelo/OUTA test for interim interdicts in the constitutional context, particularly where indigenous rights are implicated. It establishes that developers who proceed with construction in the face of known legal challenges do so at their own risk and cannot rely on self-created prejudice to resist interdicts. The judgment recognizes the relevance of international law instruments protecting indigenous peoples' rights (ICCPR, ICESCR, African Charter, UNDRIP) in interpreting South African constitutional provisions, though it did not definitively rule on whether free, prior and informed consent (FPIC) is required under South African law.