Natal Command court papers filed
Businessman Sunny Gayadin has filed the first salvo in a Constitutional Court battle over Durban's Natal Command site, urging the court to set aside the "fatally flawed contract" the city signed with movie-maker Anant Singh.
As ordered by the chief justice, Gayadin's lawyer, advocate Gilbert Marcus SC, filed his written arguments with the court this week in advance of a hearing set down for September.
Between now and then Singh and the eThekwini municipality will also have to submit their arguments.
Gayadin, who owns Giant Concerts, challenged the R15-million movie studio development deal which the city signed with Singh's Rinaldo Investments Pty Ltd for the R71m site in the Pietermaritzburg High Court and won.
But Singh appealed to the Supreme Court of Appeal which ruled that Giant Concerts did not have any legal
Bstanding to challenge the sale because it was not a ratepayer of the municipality. Gayadin is now taking on this issue and the merits of the private treaty sale in the Constitutional Court. Marcus says the appeal court's approach was inconsistent with five provisions of the constitution: a fair system of procurement, the principles of accountability and transparency, just administrative action, access to court and political participation.
The appeal court's "approach to standing undermines the competitiveness and fairness under which the state may sell its assets", Marcus argues.
"Stripping non-ratepayers of the right to object to sales by private treaty will not lead to greater benefits for municipalities seeking to alienate land. On the contrary, it will exclude competition and make it more likely that land is alienated for sub-optimal prices.
"The facts of this case illustrate the point. Giant Concerts had an interest in purchasing the land for a better price... as such it plainly had an interest in the fairness and legality of the proposed transaction. However, on the court's approach it was never entitled to object to the sale by private treaty or review the decision to sell to Rinaldo," he said.
On the merits, Marcus says the city approved the sale before hearing objections and had not advertised the proposed sale properly. This had resulted in the public's right to be heard being compromised.
He said there had also not been even-handedness "which is intricate to fairness".
"The conduct of both the local government minister and the city in the administrative process was marked by an absence of fairness. The evidence shows that Rinaldo was afforded undue preference.
"The city did not consider alternative proposals. Giant Concerts was never notified of the outcome of its objections and no reasons were ever furnished to it for rejecting its objection."
Posted at 07:31AM Jul 05, 2012 by Editor in Cities and Towns |