The Supreme Court of Appeal has dismissed a Durban high court ruling that called for the demolition of a half-built luxury apartment block in the city’s upmarket Berea area.
The “gargantuan” R65-million unfinished eight-storey building at 347 Currie Road, in Musgrave, was ordered to be demolished by the Durban High Court in June 2015, but developers, Serengeti Rise Industries, and the eThekwini Metro took the decision made by Judge Ester Steyn to the Supreme Court of Appeal.
In the judgement handed down on Friday by Justice N. Dambuza, he said Steyn’s failure to declare what parts of the building were illegal and set to be demolished was a “failure to exercise discretion in determining just and equitable remedy” and that the “court order [was] found to lack clarity and certainty”.
The matter was heard by the supreme court on 11 May where, acting for Serengeti, advocate Chris Loxton SC, had asked the court for “the administrative actions” to be reviewed while eThekwini’s council, Gilbert Marcus SC, had told the court that Steyn was “fundamentally mistaken” in finding that the building be demolished.
The neighbours’ counsel argued that there was enough evidence to prove that Serengeti and the eThekwini Metro colluded and that the building was built fraudulently thanks to the collusive relationship.
But Dambuza sided with the developer and the Metro, saying Steyn’s order was “unsustainable for a number reasons”.
Dambuza said Steyn’s order failed to isolate what part of the building was illegal or whether the entire building could withstand partial demolition.
“In the end the order lacked clarity and certainty. It would appear that the only way it could be executed would be the demolition of the entire building.”
Dambuza said the Durban high court “did not give any consideration to the constitutional proportionality of that remedy”.
Dambuza went further, saying the residents were not “public interest litigants”, and issued them with a cost order.
– African News Agency (ANA)