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Tuesday Jun 06, 2017

Berea building battle goes to next level

A nine-floor "monstrosity" on 317 Currie Road could stay, said the Supreme Court of Appeal (SCA) on Friday.

But this might not be the end of the road for the neighbouring residents who objected to the R61 million high-rise development who now plan to take the matter to the Constitutional Court.

The Supreme Court of Appeal ruled on Friday that the nine-storey luxury development in Currie Road could stay.

Judge Nambitha Dambuza, with four other SCA judges concurring, overturned the previous ruling by Durban High Court judge Esther Steyn that the building must be partially demolished in order to comply with the original zoning of the site.

In 2015, Berea residents, led by senior advocate Tyob Aboobaker, who lives in a neighbouring block of flats, had successfully challenged Serengeti Rise Industries, the developer, and the eThekwini Municipality in the high court.

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 was 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.

Steyn had ordered that the development on this Currie Road site - which exceeds GR1 zoning - be demolished. She also ordered the city and Serengeti to pay the costs of the residents' application.

The judge had found that the city's approval in December 2011 for rezoning this property from GR1 to GR5, zoning that allows for a high-density boundary-to-boundary building, was unlawful and invalid and that this also made Serengeti's deviation plan (second building plan) unlawful and invalid.

In addition to overturning the high court ruling, the SCA also ordered that the respondents, aka the residents, bear the costs of this application, saying the respondents were not public interest litigants, but were "motivated by a desire to protect property rights and advance private interests".

Dambuza found the high court order had lacked certainty and clarity.

"In plain reading of the order, only the portion of the building that 'exceeds GR1 zoning' will have to be demolished. It would appear that the only way it could be executed would be the demolition of the entire building. And the court below did not give any consideration to the constitutional proportionality of that remedy."

Reacting to the news, Aboobaker told The Daily News yesterday he was confident the Constitutional Court would deal with the matter properly.

He said the judgment lacked detail and did not evaluate the arguments presented.

Aboobaker said although the SCA found that the order lacked clarity in that it was not clear which portion of the building was to be demolished, the court did not address the merits of the matter at all.

"Under these circumstances it is axiomatic that the invalidity findings were in fact made by the court, and therefore we find difficulty in getting to grips with what was actually troubling the SCA about the form of the order," he said.

"The SCA could have remedied any deficiencies in the order itself or could have referred the matter back to the high court to remedy it. We are puzzled as to why this route was taken," he said.

Cheryl Johnson of Save Our Berea, an organisation advocating for the demolition of the building, said although the judgment was a shocker, she too felt it was not yet over for the residents - referring to them taking the matter to the Constitutional Court.

Johnson hoped this would be where "the real issues in the case would be dealt with fully and appropriately".

She felt the judgment failed to deal with the pertinent issues in the case and dismissed the application primarily relying on a perceived technical defect in the court order.

She said they had difficulty in understanding what was actually troubling the court and that, in dismissing the application on such a petty issue, it trivialised the massive efforts which had been made in bringing a detailed application to court.

Marelise van der Westhuizen, the director of Norton Fulbright Rose, representing Serengeti, said the developer felt vindicated by the SCA judgment. "It's been a difficult two years for the company where their integrity was attacked.

"With the SCA judgment, they are hoping to set the record straight.

"They will act in accordance with the order and are trying to finalise construction as soon as possible," she said.

She also confirmed the developer would oppose the residents' application should it go to the Constitutional Court.

Daily News

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