Hands off our Intangible Cultural Heritage - Khoin v Jenkins in re: Observatory Civic Association v Trustees for the Time Being of the Liesbeek Leisure Properties Trust

• Published in: Potchefstroom Electronic Law Journal
• Main Author: Kantor, Peter
• Format: Article in Journal/Newspaper
• Language: English
• Published: Faculty of Law, North-West University, South Africa 2023
• Subjects: Heritage law; Failure to consult; Intangible heritage; urgent interdict; prima facie right; violation of fundamental rights; First Nations Peoples; First Nations
• Online Access: https://perjournal.co.za/article/view/17143; https://doi.org/10.17159/1727-3781/2023/v26i0a17143

This case note analyses an appeal decision (Khoin v Jenkins in Re: Observatory Civic Association v Trustees for the Time Being of the Liesbeek Leisure Properties Trust [2023] 1 All SA 110 (WCC)) handed down in 2022 by the Western Cape High Court, its purpose being to identify the strengths and weaknesses of the decision and to comment on possible future developments. The text of the judgment is interpreted in the light of judicial precedent, literature and domestic (South African) and international law. One of the key findings is that "intangible heritage" is an integral part of both domestic and international law, and the Khoin-case gives judicial recognition to the concept as a part of South African heritage law. One of the main criticisms levelled against the judgment is that it does not adhere to judicial precedent in failing to find that the right to consultation of First Nations Peoples before administrative action is taken that allegedly violates their constitutional rights to intangible heritage is sufficient to satisfy the test for the existence of a prima facie right for the purposes of obtaining an interim interdict.