Durban - The eThekwini Municipality has formally turned down a request to disclose to the public the outcome of an internal investigation as to who was responsible for the approval of a R60 million residential development on the Berea, deemed to be unlawful by a high court judge.
But one of the driving forces behind the litigation against the development at 317 Currie Road, advocate Tayob “Pops” Aboobaker, has refused to back off and has launched an appeal against the city’s refusal. If this also fails, he will consider going to court for an order “compelling transparency”.
Aboobaker and other neighbours of what they labelled the “monstrosity” which towers over them, blocking their views and substantially devaluing their properties, brought an application in the Durban High Court in which they successfully challenged the rezoning of the site from GR 1 to GR 5.
The developer, Serengeti Rise, said this approval permitted it to build the nine-storey building. But the city belatedly conceded that all neighbours had not been properly notified, as was required by law.
In a precedent-setting judgment in June last year, Durban High Court Judge Esther Steyn ordered the partial demolition of the building so that it complied with an original plan submitted on the GR 1 zone for a four-storey building.
Her ruling is on appeal before the Supreme Court of Appeal, and the city relies, in part, on this fact in its refusal to give Aboobaker the report, which he applied for in terms of the Promotion of Access to Information Act.
In his appeal, he says the municipality is not an ordinary litigant.
“If the report is relevant then it is duty-bound to place it before the Supreme Court of Appeal. It is inappropriate and reminiscent of the apartheid era for an arm of government to conceal documents from the scrutiny of the court.”
He repeated his complaint that the investigation into who had signed off on the necessary approvals and in what circumstances had been instigated by him.
“No steps were taken by the municipality to procure the report from the integrity and investigations unit. It cannot now claim entitlement to the report and prevent its circulation.
“It has been with the municipality for three months, more than sufficient time to engage in a deliberative process. There is great public interest in this matter. The exco does not appear to have discussed this matter.
“There is an overwhelming inference that the very persons responsible for the mischief associated with the development are behind the decision to oppose the litigation and not release the report. That is tantamount to impeding or obstructing justice.”
Aboobaker said another reason cited - that of privilege - was misconceived, because it was in the public interest to release the report when not doing so might well be perceived as “protecting individuals”.
“It is in the municipality’s own interests that questions around the development be answered.
“The development is such a gross breach of town planning and building laws that it raises the question whether those employed in the town planning department ever applied their minds or simply had instructions to ensure a predetermined result.”
The city has declined to comment because of the pending Supreme Court of Appeal action.
The Mercury