ANC and EFF eThekwini councillors on Thursday pushed through the rezoning of a property on Durban’s plush Mentone Road, the site of a three-storey building deemed a monstrosity by neighbours and illegal by a judge.
The rezoning of the property as a “special zone” is an attempt to regularise the now-completed building in terms of town planning controls. The city can now consider the developer’s “as built” plans in line with the more lax zoning.
However, objectors — including neighbour Ahmed Mohamed Hansa who took developer, the MRM Family Trust and the city to court — are not likely to take the decision lying down.
Last year they succeeded in setting aside the municipality’s decision to approve the Mentone Road building plans. They also secured an order declaring that the building contravenes bylaws and is unlawful.
In a statement, the legal team acting for Hansa said: “We will be going back to court.”
The team said what the city had ignored was that the judgment — which was not appealed — did not only set aside the approval of the plans, but had gone further, ruling that the building could not be approved at all because it derogated from the value of neighbouring properties.
“That fact remains — whatever the council has now approved in terms of the zoning. The council decision does not have any effect on that aspect of the judgment. It is final and has not been appealed.”
In his court application, which came before Durban high court acting judge Warren Shapiro, Hansa complained that the building “loomed large” over his house, casting a “monstrous shadow” and the three-storey building was equivalent in height to a standard seven-storey apartment block.
The eyesore, he said, had caused a reduction in the value of his property from R10.5m to R6.5m.
Following Shapiro’s ruling, the MRM trust applied to the city for the land to be rezoned from special residential to a “special zone”.
Hansa and others objected to this.
However, it appears their concerns were largely ignored.
The matter appeared on a supplementary agenda for the council meeting on Thursday which was only given to councillors the day before the full council meeting.
It noted that in spite of objections, the application for rezoning was “considered acceptable, as it regularises an existing development affected by a high court ruling”.
It was “site specific” and “consistent with the character of the area”.
The DA and Action SA both spoke out against it and were joined in voting against the motion by the IFP.
Action SA councillor Saul Basckin said the developer was using the council to “appeal a decision made in the high court”.
“This is not a minor issue — this is a serious finding by a court of law that the approval should never have been granted.
“I would strongly urge that legal services provide clear guidance on this point, because we may be exposing this municipality to further legal challenge, further costs, and further reputational damage.
“This item, introduced on a supplementary agenda with less than 24 hours’ notice, is not a routine planning matter,” he said.
“We risk sending a message that compliance is optional and bylaws can be adjusted after they are broken. This is a dangerous precedent,” Basckin said.
The DA’s Warren Burne described the motion as “a backdoor attempt to legitimise what should never have been allowed to happen in the first place”.
“This is just bad governance. The justification is the fact that the building work has been completed … the property has been improved by the erection of an impressive house. What is impressive to some, is oppressive to others.”
He said more court action was likely and, if successful, cost orders could be made against those who supported the motion.
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