ON 18TH MARCH 2022, THREE days before Human Rights Day, Judge Patricia Goliath delivered a ground-breaking judgement. It confirmed that economic benefits can never outweigh the cultural and heritage rights of indigenous people. The judgement concerned a unique and irreplaceable heritage site in Observatory, Cape Town, at the confluence of the Black and Liesbeek Rivers. It found that the site was under threat of irreparable harm from a 150,000 square metre commercial development.

Judge Goliath’s interdict halted construction until the High Court reviewed the decisions. The now-stalled development, by Liesbeek Leisure Properties Trust (LLPT), was intended to house Amazon’s African Headquarters. It sought to place a monument to corporate power on what were once the open spaces of Khoi cattle herders, where sacred unions and ceremonies took place. The development included nine-storey high buildings, retail space, a private school and 36,000 square metres of residential units, of which 80% would be upmarket accommodation.

Indigenous opposition

Fani Titi, Investec CEO. The City handed the developers a financial bonanza by rezoning the land for development rights, creating instant billionaire value in the hands of the wealthy individuals who own the LLPT and Zenprop, the property investor owned by Investec

To allow the developer to more easily co-opt support from the public and some Khoi leaders, there were artificial gestures. These included a “cultural centre”, an “indigenous herb garden”, an amphitheatre for performances, and use of Khoi names and iconography. These were concocted after the developer was confronted with fierce opposition from indigenous peoples to the project. The absurdity of having indigenous Khoi performances in the shadow of nine-storey high-rise buildings escaped the developers. But it didn’t escape the majority of Khoi Councils and revivalist groups who rallied behind the subsequent court case. Many of them argued that they were not made aware of the project, let alone consulted. Khoi and San heritage is not built out of concrete; rather, it is intrinsic to the custodianship and management of the land itself, in its natural form. Dr Yvette Abrahams likens the intricate indigenous knowledge of plants, animals and nature to that of a gardener. Studies around the world confirm that this has long been a way of life for indigenous groups. The Khoi and San are no exception, despite aggressive attempts at erasing their identity, and the violent epistemicide (colonial destruction of knowledge systems) which paints over that reality.

The land itself is a sacred site, because it is the land itself with which the original people of this country and continent have an exquisite relationship. Not a monument, statue, building or museum, and certainly not a giant slab of commercial enterprise.

Crimes from 1652 to 2022
Already, huge damage has been done. Part of the Liesbeek River and riverine valley have been infilled under the hasty construction to date. This constitutes a heritage and environmental crime against all people of Southern Africa, but particularly the San and Khoi. But more than that, the development is yet another paving-over (literally) of the atrocities committed by colonial powers against aboriginal people. These include their mass-murder and violent displacement. It is a form of holocaust and genocide denial that is unforgivable. It is part of an ongoing epistemic violence and cruelty.

It is here that these atrocities originated in the first place. In 1652, the Dutch East India Company, then the largest corporation on earth, began fencing off and taking land from Khoi people in this very precinct. They deployed Roman Dutch Law in the form of title deeds, an act which sparked 184 years of anti-colonial wars waged by Khoi groups, fanning out over the whole of Southern Africa. This is not only a sacred site, but a Ground Zero precinct – an epicentre of liberation and resistance for the San and Khoi.

The enormous significance of this land has not been widely publicised until now. In 2020, it was recognised as the starting point of the National Khoi and San Resistance and Liberation Heritage Route, to commemorate the battles fought against colonialism. Even amidst the current battle to preserve it from rapacious developers, it is being graded by the South African Heritage Resources Agency (SAHRA) as a National Heritage Site and will be proposed to UNESCO as a World Heritage Site.

City gifts to property developers
Fierce opposition to the project has been led by the Goringhaicona Khoi Khoin Indigenous Traditional Council (GKKITC) and the Observatory Civic Association (OCA). Their court arguments have pin-pointed how provincial and local Government subjugated all environmental and heritage considerations to pave the way for economic benefits for a select few. This makes a complete mockery of so-called sustainable development. The “economic benefits” touted by the developer were nothing but a giveaway of government land, funds and resources to themselves and Amazon Web Services (AWS).

Firstly, the City handed the developers a financial bonanza by rezoning the land for development rights, creating instant billionaire value in the hands of the wealthy individuals who own the LLPT and Zenprop, the property investor owned by Investec. The City also made available ten hectares of land, including existing open-space river corridors, to be utilised for the development. Without this “gift” from the City, comprising 40% of the development’s surface footprint, the development could never have taken place. And the City has already granted Amazon extensive electricity rebates not afforded to ordinary businesses. So, it is making a special effort to allow this development to proceed.

Then there is the construction of the Berkeley Road extension – a road without which the development could not function. This is to be paid for by redeploying the City’s development levy. But this levy is intended to be used to fund public infrastructure such as water, sanitation and electricity services, not a road extension that enables a private development.

Specifically, City officials responsible for sewage only agreed to the development if the levy was to be used to upgrade local wastewater treatment capacity. But in reality, the project will add significant strain on the Athlone sewerage works, already unable to cope with sewage effluent from increased densification in the City. When the Athlone treatment plant fails, it will discharge sewage into the Black River, which is part of the protected Raapenberg Wetlands. So instead of being an asset, this development will be a drain on public funds, undermine infrastructure and damage the surrounding environment.

Developer and the City keep fighting

After the court decision, the developer, the City and Province applied for leave to appeal, but Judge Goliath denied their application. They have now approached the Supreme Court. Again, public authorities are spending public money on pursuing a war against the democratic process by trying to reverse the interdict, to benefit a private developer. The City has previously been called out for their irregular spending on legal services. But they seem undeterred, even after Judge Goliath awarded costs against them in their failed leave to appeal.

So, the stakes are incredibly high. For that reason, activists standing up against the development have been subjected to smears, intimidation, death threats, threats of defamation lawsuits, social media vitriol, illegal anonymous emails and ongoing propaganda in media and newspapers. A placard-holding Observatory resident was shamelessly chased, in front of members of the media, by a Khoi supporter of the development wielding a knobkerrie. The developer has paid R2.5 million to a public relations company run by former politician Tony Leon. Disinformation has been widely published and the campaign relies on unpaid volunteers to correct such misinformation, requiring massive amounts of their time and effort.

Capitalism and indigenous rights collide

But the campaign is historic. For the first time, the rights of indigenous people and the rights of the environment are located together, centre stage, against wealthy influential forces. This tests our democracy to the full. This is where capitalism and indigenous rights collide. LLPT and Amazon (the richest company in the world) have allies in government. The money behind them enables them to fund an enormously costly campaign against us. They are using lawfare against community organisations, ratcheting up costs by approaching the Supreme Court.

But the unity and solidarity of Khoi and San groups opposed to the sale of their heritage is extraordinary and inspiring. Along with support from a wide range of NGOs, labour, faith-based and civic organisations and more than 73,000 individuals who have signed the petition, the movement continues to grow. Together with the indigenous leadership, Dr Alan Boesak called last year for a Truth and Reconciliation Commission for the San and Khoi. The conversation around land and land reform is a painful one, but it must start by acknowledging what was stolen from aboriginal people of this country and continent. There can be no justice for stolen land without first recognising the epicentre, where it all started.

This campaign seeks to make this site a place of healing: to acknowledge all that has been done to indigenous peoples under colonisation; to undo the epistemic violence and cruelty against them; and to protect the precious environmental and heritage resources that still survive at the site. That struggle is still continuing. Same colonisers, different ships.

Anyone wanting to donate to the campaign may do so online, by EFT or Snapscan.