eThekwini municipality withholding incriminating evidence, say Currie Road litigants
Durban community watchdog group Save Our Berea (SOB) and advocate “Pops” Aboobaker, who are embroiled in a court battle over the development of the multistorey apartment building at 317 Currie Road, claim eThekwini Municipality is withholding “incriminating documents” relating to the approval process for the building.
SOB went to court last year seeking an order reviewing and setting aside the town planning and rezoning approval given for the building, which has been labelled a “monstrosity” by neighbours, including Aboobaker, who lives next door.
The matter cannot proceed until the city files the full record of the decision.
In his latest affidavit filed with the court, Aboobaker says that finally, at the end of June this year, the city had produced “what appears to be a regurgitation of the 2014 record which we already had”.
That record was produced in previous litigation in the Durban high court which resulted in Judge Esther Steyn ordering the partial demolition of the building, because neighbours had not been alerted to the proposed rezoning, as required by law.
However, this ruling was overturned in the Supreme Court of Appeal, which essentially found that Judge Steyn’s order was defective.
Aboobaker says one of the crucial “missing” documents was a report by former city planner Vaughan Boden, who had apparently rejected the application by the developers at that time, Serengeti Rise Industries, for the rezoning of the property to allow for the high-rise, boundary-to-boundary development.
He says he is in possession of a letter to the developers' architects, dated June 2010, in which Boden states: “There would appear to be no sound reason the property cannot be developed in terms of its current zoning.”
He said the city’s chief legal adviser, Silindile Blose, despite alleging that an unsigned draft report by Boden had been found in the municipality's planning file, had not produced it.
Also missing were minutes of meetings of the city’s Joint Advisory Committee (JAC), which ostensibly approved the rezoning.
“While an official maintained that the JAC had reached consensus on the matter, there is no evidence that the rezoning was ever finally considered by the JAC, but miraculously surfaced at the level of the town planning sub committee in October 2011,” Aboobaker said.
“The inference is that certain officials contrived to unlawfully bypass the JAC to suppress Boden's adverse report.”
The city had also not formally produced the City Integrity Investigation Unit report which found irregularities in the approval process.
While Aboobaker received it from an anonymous source, he said: “I regard any attempt by the municipality to exclude its contents as unconscionable and nothing less than further evidence of an orchestrated cover-up”.
Serengeti Rise Industries has gone bankrupt and the building was sold at public auction to businessman Jakes Pandor, through his ITPRO Trading, for R11m.
Aboobaker says Pandor is completing the building while the legal action is proceeding.
Lawyers acting for Aboobaker and SOB had written to Pandor’s attorney asking for details of people who had bought units and for an undertaking that no further building work would be done.
The attorney wrote back saying he had sent the emails to his client and had “no instructions to respond either way”.
The city and Pandor have until October to file further papers.