Round 1 to Liberty Mall

2013-04-11 00:00

PIETERMARITZBURG businessman Sunny Gayadin has lost round one of his fight with Msunduzi Municipality over the sale of land to the Liberty properties group.

In a reserved judgment in the high court yesterday, Judge Daya Pillay said Gayadin and fellow businessman Prakash Maistry had “abused their standing as ratepayers and entrepreneurs” in the case.

“Any illusions that he [Gayadin] has about making litigation itself his commercial enterprise should be put to rest as Giant Concerts and this case shore up the risks,” Judge Pillay said.

She dismissed with costs the application by the two businessmen and Epilite 123 cc seeking to overturn Msunduzi Municipality’s sale of the land adjoining Liberty Midlands Mall to the Liberty Properties group.

The group is planning a multi- million rand expansion of the mall.

The judge said the fact that Epilite, which was not a ratepayer, was the only objector to the sale led to an inevitable inference that the public was not opposed to the properties being sold to Liberty.

Pillay said Gayadin’s conduct in the case was a replica of his actions in the dispute between Giant Concerts cc and eThekwini Municipality over the sale of prime beachfront land to Durban film-maker Anant Singh.

Finding that Gayadin and Giant Concerts had no standing to bring that case, the Supreme Court of Appeal said they were “merely toying with process, or seeking to thwart a propitious public development because it had been made available to someone else”.

That case was finalised only nine years after it started, when the Constitutional Court agreed with the findings of the SCA.

In the judgment, Pillay said the details of what was done and how long it took to complete the sale to Liberty by the municipality showed not only that it was a “protracted, costly undertaking”, but also that it was a public process.

The judge said that by the time Gayadin, Maistry and Epilite launched their application on July 16 last year, the municipality, Liberty, the provincial treasury and the Environment Affairs and Co-operative Governance and Traditional Affairs departments had invested “enormous energy, effort, expense and time in the project”.

Pillay said Gayadin and his fellow applicants had requested and received information on the progress of the development, and notwithstanding threats to stall the process, they’d allowed it to progress to finality.They did not interdict the process.

The Judge also ruled against Gayadin and company on various other grounds.

She said it was not true that Epilite’s offer to buy the properties for R15 million was “virtually double” the amount offered by Liberty, namely R7,5 million plus VAT. This was because these figures did not take into account the R18 million that Liberty invested in fulfilling various conditions imposed by the municipality. “Insofar as Epilite claimed that its offer represented fair market value, Liberty’s offer was better value,” said the Judge.

In an e-mail to The Witness, Gayadin said he disagreed with Judge Pillay’s findings and would appeal the judgment.

Graham Kusano, of Liberty Properties, said the group did not wish to comment on the judgment until their lawyers had studied it.


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