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Judge evicts family from plush home

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INLSA

The house in Morningside's Rosetta Road, which the city says does not conform to the approved plans. It has now secured an order evicting the family as there is no occupation certificate. Photo: Shelley Kjonstad

Durban - The city has secured a Durban High Court order evicting a family from their plush double-storey Morningside villa because it was built illegally.

Officials say while plans were approved for the house on the corner of Rosetta and Lambert roads, the finished building bares little resemblance to them and it applied for a demolition order.

That case is still pending before the Durban High Court but, last week, in a separate and unusual application, it successfully argued that no occupancy certificate was issued and the owner, Shehnaaz Sheik Sultan Nabee, and her family were not entitled to live on the property.

Acting Judge Johan Pammenter gave Nabee until May 2 to vacate and authorised the Sheriff to evict them should they not be out by midnight.

The eThekwini Municipality has recently acted against several “illegal buildings”, including shutting down a Chatsworth construction site where it was said a church was being built with no approved plans.

In other cases, neighbours have turned to the courts and recently stopped further construction of an apartment block in Montpelier Road pending a review of the council’s decision to approve the plan.

In his judgment in the Rosetta Road matter, Judge Pammenter said that Nabee had bought the property for R2.35 million in April 2010. The “modest dwelling” was demolished and a “substantial one” built in its place.

Deviations

Plans were lodged in June 2011 and approved that September but there were “substantial deviations”.

In terms of town planning deviations – side spaces, building lines, and the height of walls – Nabee applied for and was granted special consent on certain conditions. But she was unhappy with these conditions and lodged an appeal.

An aggrieved neighbour also appealed but these have not been finalised and, until they are, new plans could not be submitted for approval.

In the meantime, the family moved in in August 2012.

The municipality then launched two applications, one seeking an order directing Nabee to demolish sections of the building which did not conform with the approved plans – which is still pending – and the present one, which was argued before Judge Pammenter recently, to evict Nabee and her family.

Nabee opposed the application, relying on the provisions of the Prevention of Illegal Eviction and Unlawful Occupation of Land Act, commonly known as the PIE Act.

The judge ruled that the act was not applicable, referring to case law which said the law must be read in its historical context – a bulwark against forced removals of the past – but also against the backdrop of the right to adequate housing and it could not assist someone who had not complied with building laws.

But even if he was wrong and the act was applicable, he was satisfied it was “just and equitable” to grant the eviction order. Nabee had acted in “blatant disregard” of the Building Standards Act.

“She was well aware of the contravention as it was specifically drawn to her attention by the municipality.” He noted that a verbal request by her husband to building inspector Glen Smith to occupy the building had also been refused nine months ago.

“She has not placed any facts before me that there is no alternative accommodation for her and her family,” he said, granting the eviction order and ruling that Nabee must pay the costs of the application.

Attorney Lushen Pillay, who acts for Nabee, said while he anticipated that an appeal could follow, he was awaiting instructions from his client.

tania.broughton@inl.co.za

The Mercury


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