Residents of Berea in Durban, are furious that a crucial court case before the Supreme Court of Appeal involving the legality of an almost completed R61m high-rise apartment block on their doorsteps, has been stalled again.
And there appears to be complete confusion about why the matter – which was expected the finally determine the fate of the nine-story “monstrosity” at 317 Currie Road – was removed from the roll again.
The issue before the court is whether Durban High Court Judge Esther Steyn was correct in finding that neighbours were not given proper and lawful notice of an application by the developers, Serengeti Rise Industries, to rezone the land.
This rezoning entitled them to deviate from an initial plan to develop a four-storey building with the usual side space restrictions and submit fresh plans for a nine-storey building with a boundary-to-boundary footprint.
It was the first ever such rezoning granted for a property in Berea and completely blocked neighbours’ natural light and views.
Property prices
Judge Steyn ordered the partial demolition of the building. However, if the SCA upholds her order, it will mean the entire building will have to come down, a first for the city.
Serengeti wants the ruling overturned. It argues the eThekwini Municipality, in not ensuring that its notice laws were complied with, was at fault and it could not be blamed.
Residents, with neighbour and local senior advocate Tayob Aboobaker, SC, leading the charge, insist the order is correct and claim their property prices have plummeted, and continue to do so.
The matter was removed from the roll last November. It was then set down to be heard on Monday.
SCA registrar Paul Myburg did not respond to questions regarding the reason for this. A spokesperson for Norton Rose Fulbright, the attorneys acting for Serengeti, said it was not removed at their behest.
“It was the registrar’s perception that the date did not suit all of the parties, which left the Acting President of the Supreme Court with no option but to remove the matter from the roll, we understand.”
Aboobaker said he had not been consulted about the removal and did not know why.
“As I understand the position, matters cannot be removed from the roll without the permission of all the parties.”
Cheryl Johnson of Save Our Berea – a lobby group helping the residents – said it was an incredibly important case for the city’s ratepayers.
“Judge Steyn’s order was met with jubilation by most Berea residents who felt helpless in the face of a string of decisions around town planning and rezoning that made no sense, and had caused the derogation of values in what is normally the largest investment that will be made in their lifetime – the value of their residential homes.
“It was worrying that the appeal hearing date had been changed three times. This case had dragged on for too long,” she said.
She said Save Our Berea was aware of other properties where the same “mistakes” were made. The only reason why these cases never went to court was that the people affected were unable to afford the costs of legal action.
She said the case had highlighted how increasing development on a piece of land increased its value.
“When the developers bought 317, Currie Road, they paid R5.8m for a site zoned General Residential I. By the stroke of a pen, the planning committee, and the full council, 317 Currie Road was rezoned General Residential 5 – a zoning never used outside the CBD and the beachfront.
“So the developer who paid a market price for the land was basically enriched by approximately R25m before he laid the first brick. Why would the city do this for a single developer at the expense of all the surrounding citizens who own property and have seen their property values go down?”
Source: News24