Property developer Serengeti Rise Industries says it feels vindicated by a Supreme Court of Appeal (SCA) ruling that found its high-rise building in Currie Road does not have to be partially demolished.
The controversial nine-storey building became a bone of contention between neighbouring residents and the developer in October 2014.
At issue was that the development had initially been zoned as General Residential One (GR1), but the eThekwini municipality had approved rezoning of the development to a General Residential Five, which permitted a much larger development that neighbours claimed loomed large over their properties and blocked the views and sunshine.
When the matter came before the Durban High Court, Judge Esther Steyn ruled that the building be partially demolished to comply with the original GR1 zoning.
In her ruling, Judge Steyn had found that public notice rules had been flouted, and subsequent rezoning of the site was unlawful.
In the SCA ruling handed down on Friday, the court said that while the high court had found that the rezoning was unlawful, it had made no orders to that effect and therefore any approvals made by the municipality remained valid.
The SCA also said the high court’s order had lacked “certainty and clarity”, and the judge had failed to exercise her discretion in order to grant an order that was “just and equitable”.
Speaking on behalf of Serengeti Rise Industries yesterday, attorney Marelise van der Westhuizen, from Norton Rose Fulbright, said the company felt vindicated by the appeal court’s ruling.
“The situation has been extremely prejudicial to the company, to the people who built Serengeti Rise and to their activity generally.
“The past two years has drawn negative attention to the company and brought into question their credibility, and they would like an opportunity to engage the media, to reflect how they perceived matters to be on the judgment of the Durban High Court,” she said.
Van de Westhuizen said the company would establish how quickly they could start construction.
“They will meet with engineers and other professionals to see how quickly the site can be re-established within the parameters of the building regulations and the law,” she said.
But Advocate Tayob Aboobaker, who led the legal charge for the neighbours in the matter, said it was unquestionable that the invalidity findings were in fact made by the high court. He said the SCA ruling had not evaluated the arguments that had been presented, and the court had decided the matter primarily on technical points relating to a deficiency in the order issued by the high court.
Regarding the issue of a lack of clarity in the high court order, Aboobaker said: “We do not agree, the high court judge made it plain in her reasoning that what she had in mind was a structure in terms of the GR1 plan that the developer had passed with the municipality,” he said.
He said the SCA could have remedied any deficiencies in the high court order itself, or could have referred the order back to the high court.
“Private dealings between the developer and the municipality offend the principle of legality, and we have no doubt that the Constitutional Court will not sanction irregular and unlawful conduct,” he said.