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Monday Nov 22, 2010

Row over Sea Point pavilion turns to finances

The battle for the Sea Point Pavilion continues - this time with lobby group Seafront for All (Seafa) accusing the developers of not having enough money to continue with their legal battle.

Seafa claims that On Track does not have any material assets, and it has asked the company to put up security to ensure that it can meet any adverse costs order granted against it.

Seafa made the claims about On Track's financial status in papers filed earlier this month, in response to the company's Supreme Court of Appeal application for leave to appeal a March High Court ruling against it.

The ruling effectively halted the proposed development of the pavilion, which includes the building of a multi-storey shopping centre and hotel.

The area would have to be rezoned to allow for this.

The development was opposed by Seafa. It is arguing that the development would mean people could not freely get access to the popular promenade area.

It approached the High Court for relief, arguing that the space should remain accessible to the public.

Seafa asked the High Court to review and set aside as flawed an environmental Record of Decision to allow the proposed development.

In March Judges Siraj Desai and Burton Fourie ruled in Seafa's favour after criticising the manner in which the provincial government approved the development.

On Track later applied for leave to appeal the decision, but the judges refused the application in September.

Now the company has petitioned the Supreme Court of Appeal for leave to appeal.

It filed a 72-page affidavit in which On Track director and shareholder Serena Rosslind claimed the judges had made fundamental errors in fact and law. She alleged they had selected only evidence favourable to Seafa, and ignored or misconstrued issues presented on behalf of On Track.

But Seafa is opposing the application and filed an affidavit in which chairman Bennie Rabinowitz questioned whether On Track was able to meet an adverse costs order in the event the leave to appeal application was granted, and the appeal argued. He said On Track should be required to put up security for costs.

Rabinowitz also submitted that, to succeed in an appeal, On Track would have to show the judges erred in respect of all three grounds of review the court had considered.

However, he added that Seafa believed the company did not have a reasonable prospect of success.

Cape Argus

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