Point clubs’ majority vote in favour of new leases

POINT Yacht Club (PYC) is considering legal action after the Point Watersports Club (PWC) directors voted in favour of signing the controversial new leases with the Durban Point Development Company which will see the clubs move to temporary premises while the Point development gets underway.

The Point Yacht Club’s two members voted against the decision at a meeting held behind closed doors on Monday, 14 August. The meeting, which took place at Durban Ski Boat Club (DSBC) at 2pm, was called for the sole purpose of signing the new leases.

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According to Gareth Davies, a DSBC member who has been instrumental in leading a ‘revolt’ against the club’s commodore’s decision to sign the new leases, voting took place last week on 7 August where members were asked to indicate whether they were for or against the new lease. Davies said he believed the 98-96 vote in favour of the new lease was incorrect.

“We believe the vote was rigged as votes were phoned in and signed off ‘pp.’ Wives of members were able to vote as well. It is a nightmare. We feel the vote should be reconciled as a ‘no’ vote or as a deadlock. The members are extremely unhappy,” he said.

Craig Millar, commodore of PYC, said the club was also concerned about the legality of the DSBC vote.

“The club’s constitution says there can only be proxy votes when it concerns the boats, but this has nothing to do with that. There were 40 votes in proxy which is not legal. This would’ve swung the vote to a ‘no’ vote,” he said.

At the lead up to the meeting this week, club members filled the DSBC boardroom in silent protest holding placards that slammed the “unconstitutional vote process.” PWC directors, Cuane Hall and Hilton Kidger, tried to order the protestors out the boardroom, but eventually had to move the meeting to the Durban Undersea Club’s premises where they locked the protestors out.

At Monday’s meeting, Millar tabled a letter from DSBC members questioning the result of the DSBC meeting vote as the constitution had not been followed.

“We handed out copies of a letter from attorneys Cox & Yeats to the PWC setting out why the club could not hold any meetings without their participation and pointing out that the matter was the subject of arbitration to be held in September. Cuane Hall took the letter and tore it into pieces and threw it at Dave Cuthbert, Honorary Life President of the PYC,” said Millar.

Millar said despite the fact that he and Cuthbert had tried to raise concerns they has regarding the signing of the new lease, they were shouted down and informed they were not there to speak, only to vote.

“We tried to remind that meeting that we, as directors ,have a fiduciary responsibility to uphold the rights contained in the 2008 agreement. We repeatedly tried to raise the issues over the leases but the meeting was out of control. After a caucus meeting between DUC and DSBC representatives, we were told they would allow us to have our say before the vote was held. We received no answers to any of the concerns raised, however we were told the directors accepted everything that we said and that it was all recorded,” Millar said.

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He said if following these concerns a resolution was taken to conclude the lease agreements, the PYC would be obliged to approach the High Court to seek an interdict to protect its rights.

“We told the directors that the PYC sought an undertaking that the signed lease agreements would not be forwarded to the developers for a period of two weeks to enable the papers to be drawn and the High Court to be approached,” Millar said.

The story so far:

ON 7 June 2017, the clubs were served a notice to vacate their premises by 7 August, however Craig Millar said the Point Yacht Club (PYC), as well as members of the Durban Paddle Ski Club, indicated they would not be vacating their properties as the DPDC had not yet complied with all its obligations as laid out in the Settlement Agreement of November 2012, the 2008 Memorandum of Agreement (MOA), certain provisions of the Record of Decision and an Environmental Impact Authorisation (EIA).

Lawyers acting on behalf of the Durban Paddle Ski Club confirmed that the required lawful building planning approval had not been obtained and access for the club to the proposed building plans had been denied, despite numerous requests to the town planning department.

They added that the provisions of the MOA were such that the developer would only give notice once it intended to start construction and site preparation on the club’s property, however no demolition plans had been sought or approved for the site or any of the sites on which the clubhouses have been built. There was also no temporary building of any nature into which the clubs could relocate on 9 August.

In a video clip posted on social media by Millar recently, he raises the real issue that it appears the boardwalk and the potential site earmarked for the new clubhouse is in a tidal zone. In the video, he shows photos taken after the 2006 storms devastated the area. His concern is that weather patterns have since worsened and sea levels have risen.

Millar said a clause in the permanent lease stated the building would supplied voetstoots and the clubs would be liable for all repairs, which he said did not bode well financially for the clubs.

The lawyers also pointed out, that to the best of their knowledge, the plans were also in breach of more recent set-back lines determined by the environmental authorities, and said they would be investigating this at every possible level.

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“We are not trying to be disruptive, we want to sit with the developer and discuss the way forward. We feel signing the leases is a manouevre to push the 2008 agreement off the table; there is undue haste being applied when we should be putting the brakes on. There has been no common sense applied as the board hasn’t agreed to approve the temporary building as laid out in the new leases and the lease says the developers will not take any responsibility for the building once we occupy it. This is a massive risk to take with our members’ money. We are definitely not vacating the premises as we have nowhere to go,” said Millar.