Durban - He leads the country’s scientific war against the Covid-19 pandemic, but Professor Salim Abdool Karim has also availed time to join a long-running legal fight to fell a high-rise Morningside building, regarded as a “monstrosity” by some.
A “bulky” nine-storey development on 317 Currie Road, which “dwarfs” surrounding buildings and blocks out some affected residents’ iconic city and ocean views, is what prompted Prof Karim to file a joinder application with the Durban High Court recently.
Save Our Berea (Sob), a civic rights group, and three other applicants were the ones who took exception with the Currie Road development and accused the eThekwini Municipality of using fraudulent means to rezone the building site and approve plans.
They previously approached the courts for relief, and Karim has since applied to support their latest effort as an affected homeowner in the area, who also wants to exercise his civic duty in speaking out against maladministration allegations.
Senior advocate Tayob Aboobaker, who lives in another Currie Road building, adjacent to the development, also sought leave to intervene as an applicant alongside Karim. He also did so in his capacity as a member of his family trust, together with his wife Fareeda. The penthouse apartment they live in is owned by the trust.
Karim owns a unit in a plush high-rise residential building on Musgrave Road, a short distance away from the incomplete development.
The 317 Currie Road site was purchased by developers Serengeti Rise Properties in January 2009, according to court documents filed by Sob.
An existing building was demolished and Serengeti plans received municipal approval for a 4-storey apartment block, according to the site’s existing General Residential 1 (GR1) zoning, in August 2010.
But in November 2011, the City had the site rezoned to GR5 and rubber- stamped a deviation plan, which indicated that the development’s floor space had grown from 4230 to 9800 square metres.
Sob and other concerned residents complained mainly about not being properly informed about the rezoning of the site and they approached the courts for relief, Aboobaker led their legal charge.
Judge Esther Steyn ruled in June 2015 that the rezoning was defective and unlawful, which also rendered the deviation plan invalid.
Steyn ordered that the additional five-stories of the development be demolished so that it would be in line with the site’s original zoning.
Serengeti successfully challenged the judgment at the Supreme Court of Appeal (SCA) in May 2017, where the municipality claimed they could not be held accountable for the unauthorised actions of an employee and the judgement was too severe.
The five judges who sat on the matter said the High Court judgment lacked clarity and did not provide a just and equitable remedy.
The aggrieved parties appeal to the Constitutional Court was also unsuccessful.
Serengeti landed in deep financial trouble, and in September 2019, they were placed under liquidation.
Last August, Sob and others filed another High Court application to declare the rezoning and the building’s plans a “fraud” and compel the municipality to nullify them, to have the development demolished and an order declaring the withholding of the City’s Integrity and Investigations Unit (CIIU) report, which probed the rezoning process.
The applicants also hoped the court would interdict the auctioning of the property on August 26.
They also asked for access to relevant municipal employees, who they believed would provide material information to confirm the rezoning was done unlawfully and provide insight on how approval was granted for the development’s floor space to grow to 9580 square meters.
Aboobaker said the applicants feared the construction would continue, even though the court action had not reached finality, if the auction was not stopped.
Although the sale was not stopped, the court ordered that prospective purchasers be warned they purchased at the risk of litigation.
In the intervening application, which has Itpro Trading (PTY) LTD, the building’s new owners as applicants, Karim, an internationally recognised academic and infectious disease epidemiologist, said his apartment was on the 8th floor of the building he lived in.
His unit, which he purchased in August 2017, was at the rear and diagonally in line with the development.
At the time of purchase, Karim said the development stood seven storeys high and remained that way for about three years. He believed the project was abandoned and was due for demolition.
While it was an “eyesore”, Karim said the development didn’t impact on his amenities and views.
But he became concerned in September 2020 when “additional unsightly storeys were added”, and had a “substantial and direct impact” on his property.
When he eventually contacted Sob and Aboobaker, they told him the municipality had allegedly “stalled” the litigation process by withholding vital information, including the CIIU report and access to witnesses.
Karim is convinced substantial evidence of irregularity in the municipality approving rezoning and the plans existed.
Apart from being personally affected, Karim said his stand against maladministration and corruption, over many years, was well documented.
He cited how he previously challenged Shaun Abrahams, the former National Prosecutions Authority, to act more decisively against corruption, and him speaking out more recently on dishonest PPE dealings.
“It is my civic duty to prevent maladministration and corruption from spreading like cancer.”
Karim said he made the application as soon as he possibly could and his role as the country’s chief scientific advisor on Covid-19 contributed to the delay.
Aboobaker, who has now recused himself as counsel in the matter, said the municipality withholding the CIIU report from the SCA was “unconscionable” and could have changed the outcome.
He said the report also indicated that the City and the developer misrepresented the truth in saying that the previous building at the site, which was demolished, was less than 60 years old when it was built in 1917, and a heritage site,
Aboobaker claimed the development infringed on his privacy in a “substantial way”, blocked out sunlight, created new shaded areas in numerous parts of his apartment.
And views from the left-hand side of his balcony were blocked by the development that resembled a concrete screen.
Msawakhe Mayisela, a municipal spokesperson, said he was unable to comment as the matter was being handled in court.
Reeve Parsee, the attorney representing Itpro Trading, said they were only served with documents this week and are yet to decide how they would respond.