Bye-bye Promenade – Court orders it gone!
The Durban High Court has ordered the removal of the promenade between Clarke Bay and Emberton Way after the body corporate of Dolphin Cove took the municipality to court and won. Dolphin Cove said the municipality built the promenade on their land and that it impacts on their privacy.
Long, meandering walks on the promenade, Ballito’s greatest tourist attraction, may soon be a distant memory.
A Durban High Court judge this week issued an order for the section of promenade between Clarke Bay and Emberton Way to be taken down.
The order was issued after a two-year legal battle between residents of the Dolphin Cove complex and the KwaDukuza Municipality.
The Dolphin Cove body corporate took the municipality to court when it replaced the old promenade with a wooden walkway after the 2007 high seas.
The construction of the walkway took place without the proper approvals from the department of agriculture, environmental affairs and rural development and in spite of recommendations by Sustainable Development Projects ecologist Simon Bundy to not build a hard structure on top of the dune.
Dolphin Cove responded by taking the matter to the courts saying that the new promenade encroached on their property, did not have the proper environmental approvals and threatened their properties as the stability of the dunes had been compromised.
The municipality denied the encroachment and told the court that the promenade is a public facility constructed by public demand and with extensive public participation.
On February 20, Judge D Pillay ruled in favour of Dolphin Cove and told the municipality it has two weeks to remove the entire section of the promenade from Clarke Bay to Emberton Way, to fix the damage caused by the construction, and to relocate the fence to its original location.
Judge Pillay said a copy of his judgement would be submitted to the auditor-general to investigate whether the cost of the litigation amounts to irregular, fruitless and wasteful expenditure by the municipality.
“Given the municipality’s flagrant, repeated and continuing breach of the law and most importantly, the risk its promenade poses for the environment, an adverse cost order is justified. The persons responsible for this mismanagement of the environment and squandering of public funds to defend criminal conduct should be held accountable,” he said.
Lawyer for the Dolphin Cove body corporate Norman Brauteseth said he was astounded by the municipality’s attitude to environmental legislation.
“The municipality built something completely unauthorised, knowing that it was unauthorised, right across the front of my client’s property. In doing so it took away all of its privacy, went against its own consultant’s advice, and misled my client.
“If one of my private clients had tried this trick to get a structure built on the frontal dune without EIA authorisation, it would have had the book thrown at it by the municipality and the provincial authorities.
“It apologised for ignoring the law, but said there was ‘public pressure’ to build the promenade. It still has no authorisation, and appears in no rush to get it,” he said.
Bundy said the issue was very complex and a double-edged sword.
“At the heart of it, the municipality had the best interests of the public at heart and on the whole they did a very good job of what was actually a very difficult task. Regardless of how this all turns out, the beach in that area will have to be defended in the short to medium term as it is a retreating beach.”
KwaDukuza municipality communications director Sifiso Zulu said the legal department was studying the judgement and would advise council on the outcome of the case and any further action.
