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Durban - The developers of the controversial high-rise apartment block on Durban’s Berea had, through the “illegal rezoning” of the property, profited to the tune of about R150m through the subsequent increase in the value of the site and income from the sales of more units.
On the other hand, neighbours argue in papers lodged with the Constitutional Court on Monday, the “disfigurement” of the area meant they had collectively suffered a loss of R26m through the depreciation in value of their properties.
The neighbours are making a final legal bid to get the building, in Currie Road, torn down. They have also applied to the court for permission to appeal a recent ruling by the Supreme Court of Appeal (SCA) which found in favour of the developers, Serengeti Rise Industries.
The site was initially zoned General Residential One, which permitted the construction of a four-storey building with the usual spacing restrictions.
However, the developers applied to rezone the site to General Residential Five - the first ever zoning of its kind in the area - which allowed them to construct a nine-storey building with a boundary to boundary footprint.
Neighbours claimed they were unaware of the rezoning, labelled the building “a monstrosity” which blocked views, natural light and encroached on their privacy.
The developers said they had always built with approval from the eThekwini Municipality. But in the subsequent court battle in the Durban High Court, the city conceded that not all neighbours had been properly notified of the intended rezoning.
Based on this, Judge Esther Steyn ruled that the building was “illegal” and ordered its partial demolition to comply with the original zoning.
Serengeti appealed to the SCA, which recently ruled in its favour, and granted a costs order against the neighbours, saying that they are not litigating in the public interest, but for their own benefit.
In the ConCourt papers, their attorney Theyagaraj Chetty said the matter was one of public importance.
He said while Judge Steyn may have made some “technical errors” in her judgment, there was enough evidence before the SCA to have rectified these.
“We need a (ConCourt) judgment which sets out the way in which an appeal court should have managed this situation in broad terms to help the public in accessing constitutional rights,” he said.
“It is in the interests of justice that this matter be heard because the SCA judgment leads to a manifest injustice.
“We also urge the court to reconsider the costs order… we are not public interest litigants in the general sense, but the litigation is of considerable public importance.
“The applicants in this case were protecting two constitutional rights, the right to privacy and the right to be protected from the unlawful exercise of public power.
“The perpetrators of this unlawful conduct ought to pay the costs, irrespective of the result.”
He said the facts, on record, were that the developers failed to deliver notice of the intended rezoning to residents “by hand”; had sent them by registered post and, in one instance, to a non-existent entity; failed to inform the reader of the contemplated rezoning; had refused to provide documentation and plans and had continued building despite the high court challenge.
Chetty said significantly, the SCA had not questioned the finding of Judge Steyn that neighbours had not been properly notified of the rezoning. Instead, it focussed on that fact that while she found that the municipality’s approvals were invalid, she did not make an order to that effect.
“Even if this criticism is valid, it did not justify setting aside the entire order,” he said.
“It was open to the court to reformulate the order.”
The developers are expected to oppose the application and file papers soon.
On the other hand, neighbours argue in papers lodged with the Constitutional Court on Monday, the “disfigurement” of the area meant they had collectively suffered a loss of R26m through the depreciation in value of their properties.
The neighbours are making a final legal bid to get the building, in Currie Road, torn down. They have also applied to the court for permission to appeal a recent ruling by the Supreme Court of Appeal (SCA) which found in favour of the developers, Serengeti Rise Industries.
The site was initially zoned General Residential One, which permitted the construction of a four-storey building with the usual spacing restrictions.
However, the developers applied to rezone the site to General Residential Five - the first ever zoning of its kind in the area - which allowed them to construct a nine-storey building with a boundary to boundary footprint.
Neighbours claimed they were unaware of the rezoning, labelled the building “a monstrosity” which blocked views, natural light and encroached on their privacy.
The developers said they had always built with approval from the eThekwini Municipality. But in the subsequent court battle in the Durban High Court, the city conceded that not all neighbours had been properly notified of the intended rezoning.
Based on this, Judge Esther Steyn ruled that the building was “illegal” and ordered its partial demolition to comply with the original zoning.
Serengeti appealed to the SCA, which recently ruled in its favour, and granted a costs order against the neighbours, saying that they are not litigating in the public interest, but for their own benefit.
In the ConCourt papers, their attorney Theyagaraj Chetty said the matter was one of public importance.
He said while Judge Steyn may have made some “technical errors” in her judgment, there was enough evidence before the SCA to have rectified these.
“We need a (ConCourt) judgment which sets out the way in which an appeal court should have managed this situation in broad terms to help the public in accessing constitutional rights,” he said.
“It is in the interests of justice that this matter be heard because the SCA judgment leads to a manifest injustice.
“We also urge the court to reconsider the costs order… we are not public interest litigants in the general sense, but the litigation is of considerable public importance.
“The applicants in this case were protecting two constitutional rights, the right to privacy and the right to be protected from the unlawful exercise of public power.
“The perpetrators of this unlawful conduct ought to pay the costs, irrespective of the result.”
He said the facts, on record, were that the developers failed to deliver notice of the intended rezoning to residents “by hand”; had sent them by registered post and, in one instance, to a non-existent entity; failed to inform the reader of the contemplated rezoning; had refused to provide documentation and plans and had continued building despite the high court challenge.
Chetty said significantly, the SCA had not questioned the finding of Judge Steyn that neighbours had not been properly notified of the rezoning. Instead, it focussed on that fact that while she found that the municipality’s approvals were invalid, she did not make an order to that effect.
“Even if this criticism is valid, it did not justify setting aside the entire order,” he said.
“It was open to the court to reformulate the order.”
The developers are expected to oppose the application and file papers soon.
