Durban residents to tackle sun-blocking high-rise apartment in ConCourt

2017-06-20 18:43
Constitutional court. (News24)

Constitutional court. (News24)

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2017-05-09 13:01

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Durban - Residents of Durban’s Berea suburb are rallying to support a proposed Constitutional Court appeal against the recent ruling by the Supreme Court of Appeal (SCA), allowing a controversial high-rise apartment building in Currie Road to stay.

The deadline to approach the court for permission to appeal is this Friday.

Advocate Tayob Aboobaker - who lives next door to the development by Serengeti Rise Industries - confirmed that other neighbours were "seriously considering" joining the legal action.

Some money to fund the appeal had also been raised by the concerned residents group, Save Our Berea, although it was still not enough, he said.

Razak Essack - an owner in a complex directly behind the eight-storey, virtually completed, building - told News24 on Tuesday: "We are busy consulting with lawyers."

"We will go to the Constitutional Court... we were surprised at the SCA ruling. It is a matter of concern and we are trying to drive up support.

“We can cover the costs... but we want the support of other neighbours and ratepayers. We believe the city council should never have allowed the rezoning (which permitted the construction of the building). Such a zoning allowing for a building of this magnitude has never happened on the Berea before.

"It is reserved for high density areas such as the beachfront and the city centre. We cannot let this lie," Aboobaker said.

The original zoning of the site allowed for a four-storey building with usual front, side and rear spacings.

But the eThekwini Municipality later approved the high density zoning, allowing the high-rise "boundary to boundary" R61m development which, neighbours complained, towered over them, blocking views, natural sunlight, and encroaching on their privacy.

Developers win court challenge

In the initial battle in the Durban High Court, the city eventually conceded that neighbours had not been properly and legally notified of the intended rezoning.

Largely based on this, Judge Esther Steyn ruled that the rezoning was unlawful and the building should be partially demolished to comply with the original zoning.

The developers, who argued that they had done nothing wrong and had always acted with city permission, took the judgment on appeal to the SCA, which recently found in favour of the developers and the city.

The ruling did not touch on the issue of the lack of proper notice. It commented that Judge Steyn had not given consideration to the constitutional proportionality of the demolition order which, on the face of it, would mean the entire building would have to come down. 

The court also made a costs order against Aboobaker, saying he had litigated out of self-interest.

It is expected that this will be raised if there is a Constitutional Court challenge.

Marelise van der Westhuizen, the attorney acting for the developers, said that, since the SCA ruling, her clients had consulted professional advisors to find out how long it would take to re-establish the site and to complete the project.

"But they have deliberately not recommenced with work, pending any possible appeal. We will wait now to see if they file any application and the outcome of that," she said.

Application turned down

In the meantime, an application launched by Save Our Berea for access to information regarding how the rezoning was approved, has been turned down by the city.

In an email, Adele Seheri, deputy information officer, said the information sought was contained in an investigation report, which was still under consideration, "so as to give consideration to improve and address shortcoming (if any) to the rezoning process and consider the conduct of officials and employees".

Seheri said this process, "which may include Exco and full council", had to be done in an unfettered and candid manner, "without the intrusion of third parties".

"I am also of the view that the record does not reveal evidence of substantial contravention of the law or a substantial failure to comply with the law.

"Public interest demands that the municipality be given appropriate and adequate opportunity to deliberate on the report and take appropriate action if necessary. Public interest in not making disclosure of the record outweighs public interest in making disclosure of the record," Seheri said.

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