Cato Manor resident sues freight company over burial site use

Cato Manor resident sues freight company over burial site use. Picture: File

Cato Manor resident sues freight company over burial site use. Picture: File

Published Jan 9, 2024


A freight company that is using a historical Indian burial site as its business premises, lost its interlocutory application to have a legal bid by a concerned citizen over the use of the site overturned, as it argued that the applicant did not have the legal standing to launch the application.

From a young age, Koonendran Samie has known the Cato Manor Indian Cemetery as a cemetery and an important heritage and historical site that reflects the history and culture of the people of Indian origin.

He said he had concerns over the manner in which the site was misused or neglected and had therefore, in his personal capacity and in the public interest, filed an application against Secona Freight Logistics CC.

The closed corporation is occupying the land under a lease agreement it concluded with the owner of the land, the Cato Manor Indian Cemetery and Crematorium Association, represented by its trustees.

Samie, a resident of Yellowwood Park, bordering Chatsworth and the south-west of Durban, is a senior environmentalist in the Environmental Planning and Climate Protection Department of the eThekwini Metropolitan Municipality.

The freight company operates a container depot for the handling, storage and repair of freight containers. It has more than 1 000 trucks stored on the site.

Before the lease agreement was entered into in 2011, the site was a cemetery with no tombstones or historic artefacts. It had been destroyed and the graves desecrated over the years.

The freight company said that it had not been aware that the site was originally a cemetery.

Samie said he knew the site well and his grandfather and the relatives of other community members were buried there. They used to visit the site to pay respects to their loved ones until its gradual deterioration, closure and ultimate demolition without any consultation with the community.

He stated in court documents that over a period, commencing in 2009, he had raised the concerns about the misuse and/or neglect with the municipality.

His concerns had been ignored.

Sometime in 2017, he had started a petition which enjoyed the support of some community members whose family members were also buried on the site. He had also alerted the South African Human Rights Commission.

When he had noticed the site being cleared, he had started a Facebook page, “Save Cato Manor Indian Cemetery”, to raise awareness about what was happening to the site. The page attracted many followers whose relatives were buried on the site.

When his concerns were not addressed, he had turned to the high court in Durban to interdict the freight company from continuing its activities on the site. He also wanted the site to be preserved as a cemetery.

On the first day of the hearing, the freight company raised a point law, that Samie did not have the legal standing to bring the application, stating that he had failed to prove that he was acting in anyone’s interest.

In countering the argument, Samie told the court that the Constitution allowed him to pursue litigation in the public interest and under the National Environmental Management Act (Nema).

The high court concluded that the Constitution did grant permission to concerned citizens to approach the court, It also concluded that Nema allowed any person or group of persons to approach the court for any breach of a statute concerned with the protection of the environment and the use of natural resources.

It subsequently turned down the freight company’s interlocutory application.

Unhappy with this ruling, the freight company turned to the Supreme Court of Appeal.

In a judgment issued last month, the SCA said it was trite that an interlocutory order (which is a preliminary or procedural order) could not appealed unless it disposed of any issue or any portion of the issue in the main action.

The SCA concluded that in that case, the interlocutory order was not appealable and it struck the matter from the roll.

But the justices did voice their disapproval about the “disturbing trend of well-resourced litigants”, such as the freight company, using apparent “Stalingrad litigation tactics” to prolong ultimate relief sought in the courts and continue with “business as usual”.

The SCA said it was clear where the matter was kept in abeyance as a result of the litigious “toing-and-froing” caused by the appeal on a point in limine (preliminary point in law) when the real dispute could have been long since resolved.

Pretoria News

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