In a bold, precedent-setting ruling which will affect the future conduct of developers in the city, a Durban High Court judge has ordered that most of an almost-completed R60 million nine-storey luxury block of flats on Durban’s Berea be torn down.
The order affects five storeys and the boundary-to-boundary footprint of the building, making demolition of the entire structure almost inevitable, as is a massive damages claim against the city by the developers.
Neighbours – who went to court challenging the rezoning of the site at 317 Currie Road, which allowed the construction of the “monstrous” building which ruined their views and privacy – were ecstatic.
Advocate Tayob Aboobaker, who led the charge against the eThekwini Municipality and Serengeti Rise Industries, said: “Justice has been done. This is an outstanding precedent which puts developers and architects on their guard. The disfigurement of the Berea and the city has been stopped and the city is the better for it.
“Others who are affected similarly must not hesitate to go to court and I will do everything to ensure they get legal representation if the circumstances warrant it.”
While Judge Esther Steyn’s ruling on Monday might not have been the end of the matter legally, with an appeal almost certain, Save Our Berea’s Cheryl Johnson said it sent a “strong signal that you can’t just ignore the rules anymore”.
She said there needed to be an investigation into how the rezoning had been approved “and we hope the city does not find a scapegoat”.
The history of the matter – as put up in the papers and argument before the judge – was that Serengeti bought the site in January 2009 and demolished the existing dwelling. A plan for a four-storey development was submitted in accordance with the existing GR1 (general residential one) zone and was approved in August 2010.
However, in November the following year, the city rezoned the site to GR5, the first such high-density zoning on the Berea, and then approved a “deviation plan” which increased the bulk from 1 800 square metres to almost 9 800 square metres. This permitted the construction of what has been labelled the “gargantuan” development with no front, side or rear spacing, which towers over its neighbours and dominates the area.
The residents cried foul, saying they were not aware of the rezoning application and had only become suspicious once the building started to go up.
Serengeti claimed it had done no wrong and was building with all the necessary city approvals.
The city said it would abide by the decision of the court but made a startling admission just before the matter was argued, conceding that neighbours had not been given proper notice of the intended rezoning.
Judge Steyn said the developers insisted the law had been followed and “to the extent that there were any shortcomings” the blame for that should be put at the door of the city.
But, she said, it could not just shift the blame because it had a duty in terms of the legislation to adhere to the laws.
Only about 30 neighbours had received notices, which were deficient, because they did not detail the specifics of the intended rezoning. There was also no notice put on the site.
The city was equally to blame because it had a duty to ensure that the law had been complied with.
“The city underplayed its role in the rezoning process and attempts to blame one individual for the so-called mistake. But this is not borne out by the record which shows that the majority of council approved the rezoning after debate.”
Ruling that notice was “wholly inadequate” she declared the rezoning “unlawful and invalid”. It thus followed that the approval of the deviation plan based on the rezoning was also unlawful.
She shut the door on a suggestion made by lawyers for the city that she order that the rezoning application start afresh, saying it was “problematic”.
This was because the municipality – faced with a substantial damages claim from the developers should the building be demolished – would seek to protect its own interests and act as “judge and jury in its own case”.
She said once she found the structure to be illegal, she was bound by a Supreme Court of Appeal ruling to “deal with the consequences” and make a demolition order for that part of the building which was illegal, in this case anything which deviated from the original four-storey plan.
Approached for comment, Serengeti’s attorney Chris de Beer said: “We are presently considering the judgment. In the event of us being instructed to appeal, our client has 15 days from today to file an application for leave to appeal.”
The city’s head of communications, Tozi Mthethwa, said the municipality was still waiting for a copy of the judgment.
“We will have to study it to be able to make a decision regarding an appeal.”
Source: The Mercury