Incriminating report kept from appeal court in demolition case

Findings of hidden Durban Council's internal probe ‘contradicted advocate’s argument’ at appeal court.

An advocate who successfully represented eThekwini Municipality in an appeal to have a high court demolition order reversed, thus saving the city millions of rands in damages, could find himself being questioned about why he did not disclose a confidential city report that was “explosive”,  “highly incriminating” and contradicted the argument he presented to the Supreme Court of Appeal (SCA).

This is yet another twist in a nearly six-year-long saga involving the construction of a yet-to-be completed luxury apartment block on Durban’s Berea. Nicknamed the Monster on the Berea, it has panoramic views of the city, the Port of Durban and the Indian ocean, while obliterating the views of neighbours (noses190, 212 & 230).

The boundary-to-boundary building at 317 Currie Road was ordered to be demolished in June 2015 by the High Court in Durban on the grounds of a flagrant disregard of due process and because the municipality was so compromised in the issue that it could not be trusted to fix its own mess without bias. 
The developer, Serengeti Rise Industries (Pty) Ltd, which has since been liquidated, and the City then successfully had the order reversed by the SCA in June 2017.

But now advocate Tayob Aboobaker SC, who is personally affected by the development and who has been at the forefront of fighting it, has asked  the president of the KwaZulu-Natal Legal Practice Council, Asif Essa, to call on advocate Max du Plessis SC who represented the eThekwini Municipality, alongside Gilbert Marcus SC, to explain why vital information disclosed in a municipal  internal investigative report that may have materially changed the case, was not disclosed to the SCA.

“Counsel, by not placing the report before the court, withheld… evidence of bad faith, corruption or fraud on the part of representatives of the municipality.

“If this type of conduct on the part of legal representatives is not checked, then the inevitable result will be that corruption in the municipality would flourish, aided and abetted by the compliant actions of their legal representatives,” wrote Aboobaker to Essa. 

Key to the SCA success was a claim by the eThekwini counsel that irregularities by the city were “of a far lower order of severity”; that there was “no evidence that the municipality had acted in a biased or fraudulent manner”, and there was “no evidence of bad faith, fraud or corruption on the part of the administrative officials”.

However, as Noseweek has previously reported, a leaked investigative report compiled by the eThekwini City Integrity and Investigation Unit (CIIU) and finalised in December 2015 revealed that eThekwini was fully aware, when arguing before the SCA, that in fact it was not just one staff member’s minor infraction but that at least six senior employees were involved and all had been found “in dereliction of duty” and to have failed to perform the functions of their office “in good faith, diligently, honestly and in a transparent manner”.

“The contents of the CIIU report are at odds with [counsel’s] statements. If there was no evidence before the court of “bad faith, fraud or corruption” it was not there because the municipality and their counsel chose not to put it before the court,” said Aboobaker in his letter, dated 3 December 2019.

He said it was likely that Du Plessis was in breach of the Rules of the General Council of the Bar of South Africa pertaining to “duty to the court”, which requires counsel to “divulge to the court material facts of which he has knowledge …by his overriding duty not to mislead the court”. 

“The spectre of corruption looms large on a reading of the CIIU report. The municipality is not a private litigant. If its very own investigative unit makes adverse findings resulting from an investigation, the court ought to know about it.

“Counsel is duty bound to disclose such a report to the court. In a constitutional dispensation the importance of that duty takes on a new dimension. The interest of the municipality is dictated by the interest of its citizens and not by municipal officials having their own agendas.”

Aboobaker was also the complainant to the CIIU. However, his repeated attempts to see the report were rejected, including his Promotion of Access to Information Act (PAIA) request. 

Precisely, why this report was not made available to the SCA was a matter only advocate Du Plessis could explain. “Evidence of fraud or bad faith on the part of the municipality may well have materially influenced the course of action taken by the court.” He said the contents of the CIIU report “would have been known to counsel”.

Aboobaker said he failed to understand how counsel acting for the city could “withhold an explosive and highly incriminating report from the court” dealing with the very matter being judged by the court. 

In previous correspondence between Du Plessis and Aboobaker, attached to the letter to the Legal Practice Council, in which Aboobaker asked why the report was not disclosed, Du Plessis said it was “neither obligatory nor proper… to disclose confidential information pertaining to litigation”. 

Aboobaker said that, while Du Plessis was the junior member of the legal team, the KZN Legal Practice Council did not have jurisdiction over Johannesburg-based Gilbert Marcus SC, and Du Plessis had provided legal opinion to the city regarding Aboobaker’s PAIA request.

The KZN Legal Practice Council has yet to take a decision on the matter.

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