On 2 June 2017, the Supreme Court of Appeal (SCA) handed down judgment in Serengeti Rise Industries (Pty) Ltd and Another v Aboobaker N.O and Others, marking the conclusion (for now) to a heated fight that has been raging between property owners in Currie Road in Durban and property developer, Serengeti Rise Industries (“Serengeti”).

The R61 million, nine-storey, high-rise apartment block that Serengeti built on Currie Road on Durban's Berea became a significant bone of contention between neighbouring residents and the developer in October 2014. The development had initially been zoned as General Residential 1 (GR1), but the eThekwini Municipality had approved rezoning of the development to a General Residential 5 (permitting a far larger development). Residents argued that they had not been properly notified about the plans to build the high-rise and thus a monstrosity that blocked their views and infringed on their privacy had been allowed to be built.

The matter came before the Durban High Court in 2015, with the court ruling that the building be partially demolished to comply with the original GR1 zoning. The judge found that public notice rules had not been followed, and subsequent rezoning of the site was unlawful.

On appeal, the SCA found that, while the High Court had found that the rezoning was unlawful, it had made no orders to that effect and therefore any approvals made by the municipality remained valid - thus, Serengeti’s building does not have to be partially demolished. The SCA went on to state that the High Court’s order lacked “certainty and clarity”, and the judge had failed to exercise her discretion in order to grant an order that was “just and equitable”. Taken from the SCA’s judgment:

"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."

This matter will move on to the Constitutional Court, announced on 20 June,  as Advocate Tayob Aboobaker,  one of the residents in a unit immediately adjacent to the offending building, was of the view that the SCA could have remedied any deficiencies in the High Court order itself, or could have referred the order back to the High Court. After the judgment was handed down, Aboobaker stated: “Private dealings between the developer and the municipality offend the principle of legality, and we have no doubt that the Constitutional Court will not sanction irregular and unlawful conduct.”