SCA decision undermined rule of law
By retreating into ‘a narrow and questionable technical laager’, the SCA has failed South Africans at a time when the foundational principles of our democracy, the rule of law, transparency and good governance are being tested. It did so when adjudicating a legal challenge to vindicate constitutional rights, and its judgment presented ‘a legal setback for ratepayers concerned about malfeasance by city officials’.
The SCA’s approach not only upends logic and reason, 'it enables corruption and undermines democratic norms and the rule of law'. That’s the view of Ziyad Motala, Professor of Law, Howard Law School, Washington DC, in a detailed article on the Legalbrief site challenging the SCA’s judgment in the matter of the nine-storey building in Currie Road, Durban. The matter has been at the centre of a dispute over zoning changes for some time and is now the subject of an application to the Constitutional Court to appeal the SCA judgment, which overturned Judge Esther Steyn’s ruling in the KZN High Court (Durban) ordering the partial demolition of the building.
At issue was that the development had initially been zoned as General Residential One (GR1), but the eThekwini Municipality had approved rezoning of the development by Serengeti Rise Industries to a General Residential Five (GR5), which permitted a much larger development, but which, according to residents, was totally disproportionate to that of the buildings on the properties surrounding it.
Motala describes the SCA reversal as ‘stunning’, noting the court failed to engage the significant facts that pointed to serious malfeasance in the municipality. ‘Citizens put their faith in the courts and expect judges to conduct a thorough review of the facts. There was not even a veneer of legality in the way the municipality handled the matter but the SCA reacted with a shrug,’ he writes.
He accuses the city of deceiving the SCA, by withholding facts that could well have had a substantial effect on the outcome of the case.
Critically, the city failed to disclose that their own internal investigation had validated Steyn’s findings in the High Court. Says Motala: ‘Empowered with this new report, there is an opportunity to revisit the issues with probity and rectitude to clean up the mess.’ He says that by withholding facts that could well have had a substantial effect on the outcome of the case the city subverted access to justice, ‘whilst ordinary citizens toiled and tried to use every legal avenue to make their voices heard’.
He adds: ‘If the SCA doubted it, the findings of the trial court of lawlessness on the part of city officials is now beyond contestation. Perhaps, the SCA should of its own accord call upon the parties to re-argue the matter, failing which the Constitutional Court should order them to do so otherwise the municipality will get away with its mendacity and the plaintiffs saddled with a monumental cost order.’
Full article on the Legalbrief site
Article disclaimer: While we have made every effort to ensure the accuracy of this article, it is not intended to provide final legal advice as facts and situations will differ from case to case, and therefore specific legal advice should be sought with a lawyer.
