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Is the law an ass?
03 Feb 2012
Nora Choveaux

ANYONE driving past the Hayfields Mall in Blackburrow Road will no doubt notice the once quiet neighbourhood of Mills Circle in a state of destruction and its community in a state of despair.

They must wonder why anybody would want to destroy perfectly good houses in a charming neighbourhood, and how this has been allowed by the authorities.

It’s a sad story. In December 2010 an application in terms of the KwaZulu-Natal Planning and Development Act for the development of the Hayfields SuperSpar over eight residential properties in Mills Circle was advertised for public comment. Many residents, who had vehemently rejected the proposal at a public meeting held in June 2010, submitted their formal objections to the Msunduzi Municipality.

Besides objections relating to traffic congestion and the inadequacy of the road infrastructure in Mills Circle to cope with large heavy delivery vehicles, one of the primary grounds of objection was the inevitable loss of “sense of place” that the residents of Mills Circle would suffer. This they contended would infringe their constitutional right to “wellbeing”.

The special character of the neighbourhood is described variously by the objectors, most of whom have been residents in the area for many years, as “a wonderful place to bring up children”, “a caring community where people look out for each other”, “nice and close to amenities which you can walk to” and “it is safe for the children to play in the street”. All in all, this is a simple, quiet neighbourhood which once characterised Pietermaritzburg and made it a wonderful place to live and raise a family.

Despite considerable public opposition, the then administrator of the city approved the development on June 30, 2011. Aggrieved residents in Mills Circle and its surrounds lodged an appeal against this decision.

In terms of the KwaZulu-Natal Planning and Development Act, which became law in 2010, once an appeal is lodged, the decision of the administrator, which is the decision of the Msunduzi Municipality, does not take effect until the appeal is finalised. In essence, once an appeal is in place, there is no approval until the appeals tribunal finds in favour of the developer, if indeed it does, given the level of opposition to the development. This being the case, how then, while the appeal is in place, has the developer been allowed with impunity, to demolish houses, remove large trees, denude the properties of all vegetation, level the land with machines and generally undertake building activities on the properties?

The response of the developer’s attorney when challenged was that “his client was not doing anything unlawful”. The municipality’s legal adviser seemed to share this view and explained that what was taking place on the properties was not “development” as defined in the KwaZulu-Natal Planning and Development Act and therefore no offence was being committed.

The effect of the appeal seems to have been lost on all of the departments within the Msunduzi Municipality. They all seem to be co-operating with the developer as if his development has the green light, despite the appeal. This shows utter contempt for the law and due process by the municipality, especially as it has the duty to enforce the law.

More seriously, the surveyor general seems oblivious of the fact that an appeal has been lodged and has seen fit to approve the consolidation of the properties that make up the development site, in contravention of the Land Survey Act and the KwaZulu-Natal Planning and Development Act.

At the centre of the problem is the interpretation of the definition of the word “development” in the KwaZulu-Natal Planning and Development Act. The word is defined as “the erection of buildings and structures, the carrying out of construction, engineering, mining or other operations on, under or over land, and a material change to the existing use of any building or land for non-agricultural purposes”.

The houses are gone and all that remains are piles of rubble. Workers on site are carrying out the usual site-preparation activities that are associated with construction. True, no buildings have yet been erected, but there is little doubt that what residents observe is “construction, engineering or other operations on, under or over land”. The residential use for which the properties are zoned has ceased and activities on site clearly do not constitute “agriculture” which, curiously, might be permitted by law.

Yet the lawyers advising the municipality and the developer insist that this is not “development” as defined by law.

However, anyone viewing the site in its current state, and being told that despite the fact that the development had not been approved, all of this activity is lawful, would believe that the law is an ass.

The late Judge John Didcott had this to say about a similar absurdity in the law: “The conclusion seems inescapable. It is also unthinkable. The man in the street would call it outrageous. Told that the law dictated it, he would believe the law to be an ass. He would be right, what is more, were such the law’s true effect.”

The residents of Mills Circle are in a quandary. Clearly, the law needs judicial clarification but if the residents of Mills Circle take legal action, who do they sue? They have no wish to become embroiled in legal action against a developer with limitless resources, and given his reputation in Kokstad, no fear of the courts. Why should they have to take legal action at all? Is it not a function and duty of the municipality to control development and to act when this is unlawful?

If the law is an ass, and the activities on the site are not deemed to be illegal development, is it not the duty of the MEC for Co-operative Governance and Traditional Affairs to rectify matters? Is this not an instance where one could perhaps, as Didcott said, “console oneself by debiting the legislature with the absurdity, by dismissing it as the sort that creeps unnoticed into statutes from time to time and gets removed as soon as it comes to light”? Whose duty is it to remove this absurdity in the law, if indeed it is?

Perhaps there is no absurdity in the law, but that the interpretation placed on it by the lawyers who are advising the municipality and the developer, is absurd. The difficulty the residents face is that taking a matter to court carries risks and is hugely expensive. If the law needs judicial definition and refinement, surely it is the obligation of the Msunduzi Municipality or the MEC to place the matter before the court? Why should the good burgesses of Mills Circle take on this public function at their cost?

In the meantime, while deliberating this issue, the development proceeds unabated and soon the very reason for appealing the decision of the Msunduzi Municipality will cease to exist. Perhaps this is the strategy of the municipality and the developer.

The stakes are high for the residents of Mills Circle. On the one hand, their constitutional rights are threatened if they do nothing, and on the other, if they take the matter to court, they will become embroiled in an acrimonious legal battle which should not be theirs.

As a last resort before embarking on legal action, a resident has lodged a complaint against the Msunduzi Municipality with the public protector and will do the same if the surveyor general does not agree to revoke the consolidation of the properties that form the development site.

The residents of Mills Circle have pursued all avenues available to them to no avail. As the developer continues on site, court action by the residents of Mills Circle against the Msunduzi Municipality, the surveyor general, the MEC and the developer is the only option that remains and has become an urgent necessity. 

• Nora Choveaux is a Trustee of the Preservation of the Mkondeni Mpushini Biodiversity Trust. Jeremy Ridl is an attorney and environmental law specialist who is assisting the community.

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