Legal row over Cato Manor cemetery

By Janine Moodley Time of article published Feb 24, 2018

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Durban - Resolute in his fight to save the “long-forgotten” Cato Manor Indian Cemetery, a Durban environmentalist-cum-community activist has taken his battle to the courts.

Kuben Samie, 44, of Yellowwood Park, approached the Durban High Court recently in a bid to indict and restrain the site’s current occupants, Secona Freight Logistics, from continuing or commencing activities on the property.

Samie believes the land should instead be redeveloped and rehabilitated into a cultural heritage site.

The matter was, however, opposed by the logistics company as well as landowners, the Cato Manor Indian Cemetery and Crematorium Association, which is leasing out the property.

According to Samie, once opposed, the said parties were required to serve responding papers within two weeks of the initial hearing, but have failed to do so.

In Samie’s founding affidavit, he said the site served as a burial ground for Indians since the early 1900s and should be preserved as a heritage and historical monument.

“It sits in the hub of an area rich in cultural history of both Indian and African people. 

"Cato Manor, and in particular Bellair Road, is home to the Shree Shri Ambalavanaar Alayam Temple, the Shri Muthiliganatha Easperar Alaya, the Shree Gengaiamman Temple, the Shri Poongavana Amman Temple and the Cato Manor Museum built around the tomb of King Goodwill Zwelithini’s mother, Queen Thomzile Jezangani kaNdwandwe Zulu.”

He said the site also fell in the D’Moss (Durban Metropolitan Open Space System) area and should be preserved.

Samie said he noticed the land’s “desecration” in 2009.

“I noticed the infilling and dumping of rubble and soil material, the storage and parking of fuel tankers, trucks, and later on, the storage of shipping containers.”

About four years later, Samie lodged several complaints to the relevant departments, including Environmental Planning and Climate Protection, the Heritage Department and Land Use Management.

He said despite incessant complaints, the infilling continued before it was eventually levelled and compacted, to be used as a container depot.

In April 2014, Samie opened a criminal case at the Cato Manor police station, but with no apparent reason, the case was provisionally withdrawn.

He continued to turn to the heads of departments, but found himself grasping at straws.

Refusing to give up, in April 2016 he started a Facebook page - “Save the Cato Manor Indian Cemetery” - where he garnered widespread public support.

He eventually started a petition last April on www.change.org, and this resulted in many people indicating that their relatives were buried on the land.

Samie said the petition, that reached a 500-signature milestone, was sent to all the respondents.

He asked the court to serve an indictment to stop activity at the site and to have incurred damages to be rectified and rehabilitated at the expense of the owners and logistics company.

“They have shown blatant disregard for the law and constitutional rights. 

"There can be no justification for their actions or inactions, which have led to the damage to important environmental and historical resources. The conduct of the respondents amount to ongoing injury.”

Samie said the city, KZN Environmental Affairs and heritage agencies, Amafa and the SA Human Rights Association, failed to respond to the interdict application.

The Department of Water and Sanitation agreed to co-operate with the application and served a “notice to abide” with the intention of supporting any decisions made by the court.

Attorneys for the cemetery association, Govender Pather and Pillay, agreed to submit affidavits in upcoming weeks, while attorneys for Secona, Omar and Associates, have apparently refused to respond to Samie’s request to agree on a date for filing of their affidavit, allegedly “claiming they are busy with other matters”.

POST contacted Yousuf Omar, of Omar and Associates, who said: “Unfortunately, I have no comment at this stage as the matter is sub judice.”

The city’s head of communications, Tozi Mthethwa, provided a similar response.

The managing director of Secona Freight Logistics, Selven Marimuthoo, who is leasing the land, told POST in a previous article that he was not an illegal tenant.

“I bought the existing franchise around 2011 and have an evergreen lease that was awarded to me by the association. I religiously pay the monthly bills and when I arrived I settled the outstanding arrears of R550 000 with the municipality.

“The land had prostitutes and shebeens. I cleaned up the mess and now that I did it up and paid off the arrears, there is suddenly an interest.”

Marimuthoo said he had not known the land was a gravesite.

Samie said this left no reason to be despondent or apathetic. “We must still speak out against these injustices. I thank the very few people who have stood up and spoken out with me, against this cruel and unjust attack on our heritage and history.”

He encouraged others, who have family buried at the cemetery, to come forward and fight with him for the land.

The matter was adjourned indefinitely for both parties to file answering affidavits.

POST

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