Durban’s D’Moss zone
Residents and ratepayers of Phoenix have threatened to take legal action against eThekwini metro over a development they allege is “unlawful” because it is being built in an area that is part of a high biodiversity system, known as the Durban Metropolitan Open Space System (D’Moss).
They have also alleged that the developer did not undertake a public participation process and other legal steps before breaking ground.
But the municipality and the developer, Praveen Choonilall, who has faced a previous battle with residents over a development on another environmentally sensitive site, say the construction is legal because Choonilall has approved plans for the development.
Advocate Kuben Samie wrote to eThekwini municipal manager Musa Mbhele last Friday on behalf of the Woodview Ratepayers Association and the Phoenix Tenants and Residents Association after residents noticed that construction work had started on the site three weeks ago. He demanded that the municipality issue a “stop work” notice against the developer.
In his letter, Samie said his clients had instructed him that Choonilall “and other unknown individuals or entities” had commenced development activities on the property at the corner of JG Champion and Viewhaven drives in Phoenix.
He said the development activities are unlawful because they contravene the National Environmental Management Act, the Local Government: Municipal Finance Management Act and the eThekwini Municipality planning and land use management by-law.
“The property is currently registered to the eThekwini municipality and forms part of the Durban Metropolitan Open Space System. Consequently, the ‘alleged developer(s)’ notwithstanding any ‘building plan’ or other purported ‘approvals’ do not have any rights, authority nor permissions to conduct any activities on the property,” Samie wrote.
“Neither my clients nor the public have been consulted on any proposed development, building plan approval, or removal of the D’Moss restrictions, on the aforementioned property.”
He alleged that the municipality had “acted unlawfully” in “disposing of the property, allowing the development to commence and granting approvals for the building plans in contravention of the by-laws”.
“The conduct of the municipality has infringed on my clients’ constitutional rights …
I am instructed to demand … that you bring an immediate cessation of all activities on the property,” Samie wrote.
He said if all activities were not stopped, his clients would seek costs against municipal officials in their personal capacity and proceed with urgent litigation against eThekwini and its officials.
Woodview Ratepayers Association chairperson Theo Pillay said he had visited the site with Democratic Alliance councillor Lyndal Singh and the police when he saw construction taking place three weeks ago.
Pillay, who has lived in the area for 40 years, said when he challenged Choonilall about the development he briefly flashed him his cell phone screen showing what he said was an approved plan for the property. Pillay said residents, who have been fighting developers wanting to construct housing on D’Moss sites for the past four years, had not been given a chance to properly view the plans.
“There’s a major road that goes to where this development is taking place. We haven’t seen traffic reports. We haven’t seen impact assessments. There’s a river on one end of it. So, there’s been no consultation, ever,” Pillay said.
“So how can somebody, in our mind unlawfully, dig up a place and then refuse to meet with the community?”
He said residents wanted the municipality to explain to them what legal processes had been followed to approve the development on the site.
Phoenix Tenants and Residents Association founder Mervyn Govender said developers had in recent years been targeting open spaces and D’Moss sites, including a soccer field, in the suburb to build housing not for the poor but for “rich buyers”.
He claimed that the municipality had passed a “blanket” council resolution to rezone the sites to special residential properties to allow for the development of housing.
“That means every single space, like a play lot, a soccer field, a D’Moss area, can now be built [on],” Govender said.
D’Moss is a green belt area where development may not occur without obtaining authorisation from the municipality’s environmental planning and climate protection department. This is to ensure biodiversity and ecosystems are not negatively affected.
Pillay said the city was “taking a chance” developing in the D’Moss area because it is protected by the Nema, which it was “frequently dismissing”.
But Choonilall and the metro insisted this week that the development was legal and plans had been approved.
“Without going into detail into each and every question, I would like to point out that this wide and unsupported allegation by the ratepayer’s association … is the same one that has constantly arisen since my company has commenced building on site,” Choonilall said.
He said the allegation that he was not authorised to build on the site was “incorrect” and lacked evidence, adding that his attorney had written to the residents to ask on what basis they had “taken it upon themselves to halt the commencement of the construction in defiance of the authority provided to my company by the municipality”.
“We had not received any response other than a letter of demand sent to me on 28 June 2024 from someone purporting to act for the ratepayers. This letter … is entirely vague in nature and my attorneys had responded asking for more clarity,” Choonilall said.
“Furthermore, despite the threat contained in the letter of demand, we were not served with papers.”
He said once he was provided with more details regarding the residents’ concerns, he will be able to decide whether to meet the association, or whether the municipality must do so.
Choonilall said he believed that the land was being sought after by “certain individuals in the community” who had fuelled the allegations.
“The purpose of this project and the current construction is to provide housing to people in the area. During our first site visit, we noticed that there were many addicts stripping stuff for scrap on that site and other unsavoury things noticed,” Choonilall said.
“We were approached by numerous residents in the area who had inquired about the possibility of purchasing property once the development had concluded and these residents were excited and were from the Woodview area and that is ultimately why I got involved in this project many years ago,” he said.
eThekwini spokesperson Gugu Sisilana said the council had approved the plans.
“The development in Woodview, at 338 Viewhaven Drive, is part of the council-approved Phoenix Infill Project, which commenced in 2000. In the specific case of 338 Viewhaven Drive, there is an approved building plan from February 2024,” Sisilana said.
“The building plan was circulated to all relevant departments including the environmental planning and climate protection department. The plan was approved from an environmental point of view. Since the matter is now being addressed through a legal process, the city cannot therefore further respond to the media on this matter.”
According to a municipal planning document, the Phoenix infill project “identified a niche market” with a growing preference for affordable housing opportunities in the northern part of Durban.
“What is of utmost significance here is the issue of affordability. The Natal North Coast has become synonymous for providing middle to high income housing opportunities which, with its often too pricey cost of homes in the area (for example, Mt Edgecombe, Umhlanga), puts the first-time home buyer totally out of the market,” according to the document.
“The Phoenix infill housing project assists by offering a unique opportunity for housing for the lower middle- to higher middle-income brackets on the northern parts of the metro, in close proximity to existing social, recreational and employment opportunities.”