Durban – It can stay.

That was the ruling of the Supreme Court of Appeal on Friday in a widely-watched court battle over the fate of the almost completed R61m high-rise apartment block on Durban’s Berea.

The court overturned a previous ruling by KwaZulu-Natal High Court in Durban Judge Esther Steyn that the building must be partially demolished in order to comply with the original zoning of the 317 Currie Road site.

This, Steyn said, was because the eThekwini Municipality had conceded that, as required by law, not all neighbours had been properly notified of the intended rezoning allowing – what neighbours then described as – a “monstrosity” nine-storey building looming large over them, blocking their views and infringing on their privacy.

The ruling on Friday will bring relief to the developers Serengeti Rise, which always maintained it was blameless and had built with all the requisite permissions.

It will also be a relief to the city which could have faced a massive damages claim from the developers if the building had to be torn down.

READ: Anger as case over R61m ‘monstrosity’ stalls again

Bitter blow

But it will be a bitter blow for neighbours, especially Advocate Tayob Aboobaker who led the legal charge against the development and who is now facing a hefty costs bill.

In the judgment, Judge Nambitha Dambuza commented on the time taken for the neighbours to approach the High Court.

“They launched the challenge in October 2014… by then the building had reached six storeys. Construction only ceased when the shell of the building was seven storeys and the concrete slab of the eighth storey had been cast.”

The judge said the developers and the city had labelled the demolition order “draconian” and had argued that Steyn had failed to exercise her discretion, disregarding the fact that the approved building plans conformed to the new zoning of the property.

“The High Court did not review and set aside the rezoning and plan approval. The court made a finding and granted a demolition but did not grant the primary relief.

“The order also lacks certainty and clarity. On a plain reading of the order, only a portion which exceeds the initial zoning would have to be demolished. There is no description of that portion. No evidence was led in this regard. There was also no evidence on whether the structural integrity of the building could survive the execution of the partial demolition order.

“It would appear that the only way it could be executed would be the demolition of the entire building… and the court below did not give any consideration to the constitutional proportionality of that remedy.”

‘Shocker’

Dambuza said the High Court had wrongly relied on a previous SCA decision in which Professor Matthew Lester was ordered to tear down his luxury home in Kenton-on-Sea.

“The reliance on this was misplaced. In that matter, the building had been constructed without any approved plans.”

Dambuza said the neighbours had not litigated in the public interest “but were motivated by a desire to protect their property rights and advance private interests”.

“I can find no reason as to why the costs of the appeal should not follow the result.”

Save Our Berea, a lobby group which has supported the neighbours, described the judgment as a “shocker”.

Founder Cheryl Johnson said the court did not deal with the “pertinent issues” and had upheld the appeal on a perceived technical defect in the original court order.

“The criticism was based on the fact that the order does not specifically state that the plans and rezoning were declared invalid.

“In the same breath, the court acknowledges that these findings were made. We have great difficulty in understanding what was actually troubling the court. We have great difficulty with the reasoning and ruling on such a petty issue which trivialises the massive efforts made in bringing a detailed court application exposing serious irregularities in zoning and planning issues.

“We hope the residents will shoulder on and proceed to the Constitutional Court.”

On the issue of costs, Johnson said the order was “totally unjustifiable” as Aboobaker had acted in the public interest.

“Courts should encourage members of the public to take up issues of concern.”