THE saga over the controversial 317 Currie Road development took another shocking twist last week when the Supreme Court of Appeal overturned the previous ruling by Durban High Court and ordered the residents bear the costs of the application.
The ruling came as a shocking disappointment to local advocate Tayob Aboobaker, who, along with other affected residents and with the support of civic organisation Save Our Berea, has lead the fight against the beleaguered development. However, Aboobaker said this week the fight was not over. Aboobaker, who lives in a neighbouring building at 311 Currie Road and is acting on behalf of the residents, said he was not ready to give up, following the judgement by the Supreme Court of Appeal (SCA) on Friday, where Judge Nambitha Dambuza and four other SCA judges overturned the previous ruling by Durban High Court judge Esther Steyn that the building be demolished.
Media reports indicate that Judge Dambuza was of the opinion that the residents were motivated by a desire to protect their property rights and advance their private interests. He found the high court order by Judge Steyn to lack certainty and clarity.
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Aboobaker is determined to take the matter to the Constitutional Court, provided the necessary public support and funding is available.
“I have serious reservations whether the Constitutional Court will uphold the judgement of the Supreme Court of Appeal. The reasoning of the Supreme Court was not clear from the judgement and the court raised technical points which in my view have no real substance,” he said.
Kevin Dunkley of Save Our Berea, said the news of the decision by the SCA was disappointing.
“It now seems that matter will roll on to the Constitutional Court. We are not legal people, and whatever decisions are made in courts by learned judges have to be respected. There is however a moral issue at play here that will never change. This development at 317 Currie Road should never have been allowed to happen in the first instance, if the politicians had respected the views of the people, and not those of one developer,” he said.
He said Save Our Berea had continually asked a variety of questions that had never been answered.
“We challenge the city officials, the politician that made these decisions, the developer, the legal team for the developers and the legal team that represents the city to just answer these questions, not only from a point of law but from a moral standpoint taking into account the Constitution of South Africa,” said Dunkley.
The questions included why a rezoning was approved on the property from GR1 to GR 5, a zoning never before given on the Berea.
“There have been mutterings by some ignorant politicians that it is because of the policy of densification. It seems these politicians have not read their own policy. The City has already paid planning experts, large sums of money to come up with a new Town Planning Scheme for the Berea, and that plan has already gone though various levels. These experts in meeting the demands of densification have changed a lot of the GR1 zonings to GR2. We would accept and agree with that, so why would politicians who know nothing about town planning agree to a GR5 zoning that flies in the face of their own experts?”
The second question was why, in agreeing to the rezoning, did the City ignore section 7 of the National Building Regulations and Building Standards Act, 1977 (Act no 103 of 1977). Dunkley said the Act states that the municipality, when approving building plans, can refuse to grant its approval in respect of those plans if the development negatively affects the area or the value of neighbouring properties.
“You would have to be an idiot to not understand that the proposed development is doing just that,” he said.
Dunkley questioned why the City would agree to a rezoning that overnight and by the stroke of a pen enriches the developer to the tune of about R20 million.
“Why is this developer so important and yet all the adjoining owners are ignored?” he said.
Another questionable fact was why the City, which has an investigative unit that was tastked to investigate the matter, had not released its report despite a valid request from Save Our Berea in terms of the Information Act, in which the Constitution permits the public to have sight of that document.
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“Why has that same investigative unit not looked into all the cases that came before the planning committee while it was under the chairmanship of a man who is now incarcerated for the murder of an activist who was pressurising him and a council colleague about their corrupt activities? Surely, if we as a city find out that the chairman of an important committee was corrupt, would it not be prudent to investigate each and every matter that went before his committee? Some very strange decisions were made in his time as chairman,” said Dunkley.
“Until somebody can give reasonable, intelligent answers to these questions, whatever the outcome due to the legal nitpicking, this will remain a decision taken against the rights of the people of Durban. We ask one last rhetorical question. If all those in the legal fraternity representing the developer and the City, actually lived in the block next door to 317, then would their opinion be the same? Yes, we know the answer to that question and that basically underlines the injustice of what we are seeing here,” said Dunkley.
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