DURBAN - AN urgent high court application by irate Berea residents against a newly opened eatery to demolish a structure and turn down the volume, was dismissed this week by the Durban High Court.
The body corporate of the Berea’s Bryanston Heights flat brought the application against 031 Shisanyama’s Nkule Sithole, the eThekwini Municipality and the Minister of Police.
The application was dismissed with costs on the basis of urgency, but will be heard at a later stage. Sithole’s attorney, Phil Magwaza, confirmed that Sithole was opposing the application.
In court papers, the Bryanston Heights body corporate claimed Sithole breached the lease agreement by unlawfully carrying out his business beyond the prescribed hours. They claimed the establishment was a noise disturbance and was also responsible for letting out fumes which affected residents.
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Body corporate chairperson Themba Khalishwayo said in his founding affidavit that the business attracted people in their “hoards”, having the time of their lives throughout the night on weekends, which caused a disturbance to residents.
He claimed in court papers that the police did nothing because Sithole allegedly told police he was the mayor’s son and no action could be taken against him. Sithole denied this in his affidavit.
Aphsana Yusuf, the attorney acting on behalf of Bryanston Heights, said the establishment was operating as a “high class shebeen” which was a nuisance to residents. She said the establishment smacked of illegality and the body corporate would continue with its court action.
In Sithole’s replying affidavit, he outlined that he was not related to anyone at the city. He said he was a businessman, who, through his “honest and hard work” established the shishanyama.
Sithole said the eatery employed 35 staff members and contributed to the improvement of the CBD.
He said all his building work had been approved through the correct channels and that there was nothing dangerous about the structure he erected for an urgent order to be brought.
Sithole claimed in his papers that Bryanston Heights did not provide proof that the portion of the property on which he built, was part of their property.
He also claimed the body corporate failed to provide credible evidence that the business was causing noise disturbances or that noise was made after midnight.
Sithole said patrons of the bottle stores consumed liquor on the road and caused a disturbance by playing loud music from their vehicles. He said the meat at his establishment was cooked using grillers in the kitchen and not using open fires, as the body corporate alleged.
He confirmed in his papers that the business was fully licensed by the municipality’s licensing authority.