Durban - An Amanzimtoti property developer has been sentenced to serve 30 days in jail for building a warehouse instead of the house depicted on the approved plan and then for finishing the building in defiance of a court order.
In a judgment cautioning others who might wish to break the law, Durban High Court Acting Judge Ian Topping ruled that Deepak Bhardwaj, who built the illegal structure at 23 Wanda Cele Road, was in contempt of court.
He has given him a month to demolish the illegal structure, otherwise he must go to prison.
“His illegal conduct cannot be condoned,” Judge Topping said in his judgment.
“I am of the view that a lenient approach would lead to an open invitation to the public to follow the course adopted by him and continue with construction not authorised,” he said.
The eThekwini Municipality first instituted legal action against Bhardwaj in February this year, complaining that although he had an approved plan to build a two-bedroomed house on the property, he had substantially deviated from that and had built a warehouse in a “prohibited area” where no structure was envisaged.
In February, the city secured an interdict stopping Bhardwaj from continuing building anything other than that which was on the plan, and then went back to court alleging he had had carried on building regardless and was still deviating from the plan and had not been granted special consent to exceed the 7.5m building line.
The judge said the city had put up a series of photographs in support of its case.
The first, taken in March, showed construction continuing in the prohibited area with workers plastering the inner surface of a boundary wall.
The second, taken two weeks later, showed a roof, supported by reinforced concrete columns, being put up over the area between a boundary wall and a retaining wall. A day later, further photographs show the inside of the structure and its concrete floors.
Photographs taken in May showed the building in its final form – “some sort of commercial building in the form of a warehouse which spans the entire prohibited area” which bore no resemblance to the dwelling on the plan.
The judge said Bhardwaj had not disputed this “undisputed pictorial evidence” but had denied being in contempt of court, saying he had put in a fresh special consent application (for a private boat and vehicle garage, workshop and games room) and believed this entitled him to carry on with work.
“He said he was informed of the risk of economic loss in the event that the application should fail and he was prepared to take that risk.
“I am of the view that this is clearly unworthy of credence and ought to be rejected,” the judge said.
“The only conclusion is that he continued with full knowledge that he was doing so in contravention of the relevant laws.”
He said Bhardwaj must serve 30 days in prison but suspended that for two years on condition that he demolish the illegal building.
Commenting on the judgment, advocate Tayob Aboobaker – a neighbour who led the legal charge against an “illegal” building in Currie Road which resulted in a judge granting a partial demolition order – said the enthusiasm with which the city had pursued this case was “precisely what one would expect of a responsible municipality”.
“The disturbing feature is why the municipality did not display similar enthusiasm in respect of the development at 317 Currie Road, where there was an an overwhelming case that the developers, Serengeti, had been engaged in unlawful development for a period of nearly three years prior thereto.”
He said the municipality should tell the public what disciplinary or criminal action had been taken against those responsible.
“There is a duplicity in the conduct of the municipality, which in the absence of any explanation invites sinister inferences to be drawn,” he said.
The Currie Road developers and the municipality have been granted leave to appeal against the order.
The Mercury