SCA judgment needs revisiting
Serengeti outcome let Frankenstein monster of illegal development out of its cage
IN JUNE 2015, the Kwazulu-natal High Court made a judgment against ethekweni Municipality and a private developer called Serengiti Rise Body Corporate, invalidating the municipality’s approval of the construction of a building.
The court held that due process was not followed in that proper notice was not served on the affected parties and the rezoning was not in accordance with applicable law. In sifting through the myriad facts, the court rejected the municipality’s claim that the rezoning mistake was attributable to one individual.
Instead, the court concluded that the majority of the council, and at least three departments, participated in the ultimate approval process. Given that the legality principle was not complied with, the court ordered the demolition of the building.
In a stunning reversal, the Supreme Court of Appeal (SCA) reversed the High Court decision, finding that the remedy ordered was problematic. The SCA retreated into a narrow and questionable technical laager stating: the finding of illegality on the part of the city was not included in the High Court’s order; and the order lacked clarity with respect to the part of the building that needed to be demolished.
This finding is a sloppy scream. Assuming that there was a problem with the order, the logical thing would have been to remit the case to the lower court with instructions to craft a new order. The SCA’S approach signified an obtuse and destructive assault on the rule of law.
Incredulously, the SCA 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 a veneer of legality in the way the municipality handled the matter, but the SCA reacted with a shrug.
We are at an inflection point where the foundational principles of our democracy, the rule of law, transparency and good governance are being tested. The SCA ruled this was a private desire to protect property rights and private interests.
It ordered the respondents to pay the legal costs. It is very rare to make a cost order against a private party in constitutional matters.
The demand that the government adhere to the legality principle is a right owed to everyone and has implications for society, key to draining the swamp and getting rid of government malfeasance. Judges have a sacred obligation to serve as stewards of justice for all.
Did the SCA really miss the legions of South Africans who are angry with State Capture and instead delivered a message that would sandbag future challenges? The SCA decision was brutal, disorderly and energy-sapping for the plaintiffs, while allowing the Frankenstein monster out of its cage, which can be seen in the urban landscape in Durban.
Facts cannot be ignored as an inconvenient truth.
The approach of the SCA upends logic and reason. It enables corruption and undermines democratic norms and the rule of law. Given the possibility of an adverse cost order, this has a chilling effect on future challenges against a backdrop of cascading corruption in the city.
How does one right the ship and fix this travesty of justice?
It has subsequently come to light that a report by the head of the City Integrity and Investigative Unit (CIIU), which was withheld from the public, confirmed the municipality was aware of serious malfeasance when the matter was being argued before the SCA.
The report concluded that at least six senior employees were in dereliction of their duties and they had not acted in good faith or diligently, honestly and in a transparent manner.
The report also concluded that the rezoning was irregular and proper notice was not served on the neighbours, consistent with the finding of Judge Esther Steyn.
The SCA ignored the findings of Judge Steyn.
Facts are not a subjective Rorschach test. Was the SCA impervious to malfeasance embedded as a standard operating procedure? Should there be deference to city officials whose views emanate from inside a corrupt bubble?
In the aftermath of the SCA’S decision, property developers have been emboldened.
Buildings are going up everywhere with the city impervious to criticism of flouting of the rules.
The SCA’S sordid sense of reality and legal approach is an embarrassingly bad exercise of legal gymnastics, a dystopian weirdness with an off-kilter focus ignoring the political gravity of spectacular illegality.
Critically, the city failed to disclose that its own internal investigation called for the charging and disciplining of various employees. In the heads of argument submitted on behalf of the city, it was stated that the irregularities were of a lower order, and that there was no evidence that the municipality has acted in a biased or fraudulent matter.
Applicants further stated, there was no evidence of bad faith, fraud or corruption on the part of city officials. If counsel for the applicants were aware of the city’s internal investigation and finding, the averments constitute an ethical and professional breach and possibly perjury that warrants investigation.
In mainstream democratic practice, there are procedures to set aside a judgment through an application where there is misrepresentation, misconduct or an offending party has acted knowingly to hinder the fact-finder’s fair adjudication of the case.
Empowered with the city’s report, there is an opportunity to revisit the issues with probity and rectitude to clean up the mess. The city deceived the court, by withholding facts that could well have had a substantial effect on the outcome of the case.
Their actions subverted access to justice, while ordinary citizens toiled and tried to use every legal avenue to make their voices heard.
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 on the parties to re-argue the matter or the Constitutional Court should compel a new bench to rehear the matter otherwise the municipality will get away with its mendacity and the plaintiffs will be saddled with a monumental cost order.
Courts are the citadel to hold government actors and institutions responsible for adhering to the legality principle. This matter also requires investigation by the prosecution service.