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Monday Oct 15, 2012

Metrorail asks court to halt KZN mall construction

With heavy rains expected in the next few weeks, Metrorail went to the high court on Friday in a bid to halt construction work on an Amanzimtoti shopping centre which, the passenger rail agency says, is threatening the crucial rail link between the city and its southern areas.

Metrorail says the matter is dire - and, while it failed to secure an interim interdict against the owners of Arbour Crossing Mall, Arbour Town Pty Ltd, on Friday, the matter has now been deemed urgent and will be argued before KwaZulu-Natal Judge President Chiman Patel on Thursday.

The dispute has been ongoing since 2008 when, Metrorail alleges, construction of the shopping centre began to threaten the stability of the railway line on which 25 000 passengers are ferried daily.

In an affidavit before the court, Jacob Khoaele, the provincial acting regional manager, said the construction of the mall has interfered with the natural state of the land. He says rainwater was now being artificially diverted from its natural flow and ran on to the railway line in a greater concentration and volume and with greater force and velocity than would naturally occur.

He listed dozens of dates over the last four years when the line has been flooded, damaging property and, at times, forcing the closure of the line.

Metrorail, he said, has got two damages cases pending against the company, one for R8 million and the other for just under a million rand. Both were being defended by Arbour Town. He said various proposals to reduce the flow of water had been presented by the company "an admission that its use of the properties at present is unlawful".

"We are under no obligation to agree to... proposed remedial measures because there is a legal duty on the company to take... remedial action... it cannot... look for an excuse in saying that we have acquiesced or agreed to a measure which may or may not prove adequate."

He said every year there were high spring rainfalls in the region and this year there had been particularly heavy downpours with the weather office predicting more in the next few weeks. These rains had already saturated the water tables and the run-off storm water had also increased. He said that new excavations "on a major scale" were being done on the shopping centre site, seemingly in anticipation of the construction of major structural premises for parking and retail commercial purposes.

The railway line had to be closed earlier this month because of accumulated debris. But when he contacted the project manager, he "shrugged the matter off", saying that a retaining wall would be built in "about three weeks".

He said the construction work had increased the danger of soil subsidence since vegetation had been removed. The texture of the soil in the area was very loose with a high concentration of sand which "runs off as silt very easily".

"It stands to reason that this [rainfall] will only exacerbate an already intolerable, unreasonable and therefore unlawful situation," Khoaele said.

When the matter came before Judge Themba Sishi on Friday, advocate PJ Combrinck, for Arbour Town, said that the company was opposing even an interim interdict being granted. He denied the situation was "urgent" and said thecompany wanted to file opposing papers.

Advocate Mark Harcourt, for Metrorail, said the issue was one of safety and Metrorail officials were present in court and would give evidence if necessary.

It was later agreed by the parties that the matter would be given preference and papers would be filed by this Thursday so that it could be considered by Judge Patel.

The Mercury

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