19 January 2022 – Amicus intervention for civil society and indigenous groups that seek to stop controversial development in Cape Town

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For Immediate Release

19 January 2022

Amicus intervention for civil society and indigenous groups that seek to stop controversial development in Cape Town

CAPE TOWN — The Legal Resources Centre will be in the Western Cape High Court today as Amicus Curiae in the matter of the Observatory Civic Association and Others v Trustees for the Time Being of Liesbeek Leisure Properties Trust.

The applicants, the Observatory Civic Association and the Goringhaicona Khoi Khoin Indigenous Traditional Council seek, an urgent interdict to stop the development at the River Club in Observatory, Cape Town, which is currently underway. They argue that permission for the development was unduly granted as the proposed development would violate the National Heritage Resources Act as well as the National Environmental Management Act.

The site in question has particular historical and cultural significance – it was here in 1510 where the Gorinhaiqua successfully defeated Portuguese forces in what is now known as the “Battle of Salt River”. This was the first recorded, successful black revolt against colonialism. In the Dutch colonial era which followed this, indigenous people were displaced from, and driven off the land. Consequently, the confluence of the Liesbeek and Black rivers has profound spiritual and historical significance to the descendants of these groups.

As Amicus Curiae (friend of the court), the LRC represents the Forest Peoples Programme (FPP) and will submit legal arguments and recommendations to the court to assist with its deliberations.

The FPP is an NGO that specialises in the rights of forest and other indigenous peoples. They have an extensive record in litigation and advocacy work that has focused on the realisation and advancement of the rights of indigenous and forest peoples. FPP has been instrumental in developing the international legal framework aimed at developing and protecting the rights of indigenous people, especially where these relate to land. Additionally, FPP has been instrumental in articulating and developing the principle of free, prior and informed consent (FPIC) as a standard in international law. The organisation seeks to make submissions on South Africa’s domestic as well as international obligations towards indigenous people. This case is of particular importance due to the historical and cultural significance of the site and how development on such a site should proceed.

Central to FPP’s submissions is section 31 of the Constitution which provides the right to culture. Additionally, FPP will submit that the court must consider international law when interpreting the scope of section 31 of the Constitution. In doing so, the court must consider the relevant provisions of international human rights law such as the International Civil and Political Rights Covenant (ICCPR), the International Covenant on Economic Social and Cultural Rights (ICESCR), the African Charter on Human and Peoples’ Rights as well as the UN Declaration on the Rights of Indigenous Peoples (UNDRIP).

The ICCPR and ICESCR, along with the UN Declaration of Human Rights, form the cornerstone of International Human Rights law. South Africa is bound by the ICCPR and ICESCR which provide a range of protections for civil, political and cultural rights respectively. The covenants impose obligations on governments to ensure that the rights enshrined in these treaties are protected. The African Charter on Human and Peoples’ Rights is an important regional instrument that aims to promote and protect basic freedoms on the African Continent. South Africa has ratified the African Charter and therefore incurs legally binding obligations under it. Additionally, South Africa has adopted UNDRIP which clarifies how the right to culture applies to indigenous peoples. Previously, the Supreme Court of Appeal has relied on UNDRIP to interpret the scope of the Constitution in matters concerning customary rights and culture.


Issued by the Legal Resources Centre

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