Durban - The eThekwini Municipality is going to fight tooth and nail to challenge a high court order to partly demolish a R60 million development in Currie Road on the Berea.
The city and developer Serengeti Rise Industries have applied for leave to appeal against Durban High Court Judge Esther Steyn’s recent ruling which the developers say would effectively result in the entire nine-storey building being demolished.
The city has asked that if leave to appeal is granted, the matter be decided by the Supreme Court of Appeal.
Judge Steyn ordered the partial demolition of the building after she found that rezoning of the property had been unlawful because residents in the area had not been properly consulted.
The stance adopted by the city is contrary to its earlier undertaking to abide by the court’s ruling, but it admits that much is at stake for it and ratepayers as they could face a hefty damages claim from the developer.
The municipality says it agreed to abide by the court’s decision about the rezoning and not the order that flowed from that ruling.
Serengeti was taken to court by Berea residents, led by Tayob Aboobaker, who said they had been unaware of a rezoning application which allowed the site to be used for the huge development.
The developers had initially sent a plan to the city for a four-storey development which had been approved.
This was later changed and a deviation plan and rezoning of the site, to accommodate a nine-storey block of flats, were approved by the municipality.
The residents argued that the building blocked their views and had pushed down the values of their homes.
Judge Steyn said once she had found that the rezoning was invalid, the building plans were also made invalid and she had to follow a Supreme Court of Appeal decision in a similar case. In that case, Rhodes University tax professor Matthew Lester was ordered to demolish his R8m mansion in Kenton-on-Sea because he had built it without approved plans.
In its court papers, the city said the residents had not specifically asked for a demolition order and that the circumstances in the Lester case were different because Serengeti had built according to approved building plans.
Both the city and the developer argue that Judge Steyn ought to have sent the rezoning application back to the city for reconsideration after proper notice had been given to the residents.
Judge Steyn had ruled that the matter could not be sent back because the city - faced with a possible damages claim - would seek to protect its interests and would act as “judge and jury in its own case”.
In their court papers, the developers said that only in exceptional circumstances should a court substitute its own decision for that of the decision-maker (the municipality) and no exceptional ground was relied upon by Judge Steyn to refuse to send the matter back to the municipality.
They argued that Judge Steyn also erred when she assumed that the city would abuse its power, and she had not found that the developer would have a right to claim compensation from the municipality.
The developers also state that while the order was for a partial demolition, it would effectively result in the entire building being demolished and the judge had ignored the consequences of her order and the “time and money” invested in the building.
“The learned judge also failed to pay any regard to the rights and interests of parties who had purchased units in the building.”
Attorney Theyagaraj Chetty, who is acting for some of the residents, said they would “definitely oppose” the application.
It has not yet been set down to be argued.
Mercury