First round to activist in battle for heritage site
An environmentalist employed by the eThekwini municipality has secured a small but important victory in his legal battle to rehabilitate an old Indian cemetery used by a freight company to store containers, reports TimesLIVE.
KZN High Court (Durban) Judge Jacqui Henriques has given Kuben Samie permission to pursue his legal case, ruling that he has locus standi to litigate.
This was in spite of fierce opposition from the company, Secona Freight Logistics, and the owners of the land in Cato Manor, the trustees of the Cato Manor Indian Cemetery.
In her ruling the judge said Cato Manor, like Sophiatown in Johannesburg and District Six in Cape Town, was an historically significant area where forced removals under apartheid and early formal resistance began.
‘The area is important from a heritage and historical point of view. It has many buildings and temples of significance.’
Samie instituted proceedings in 2017, seeking an interdict to stop the company running its business from the site and an order that the company and the trust fence it off and engage experts to evaluate and assess the damage caused to historic graves, burial grounds, tombstones and the historic crematorium.
He sought a further order that the cemetery be rehabilitated and be declared a heritage site. Henriques said it was common cause the site was used as a cemetery and housed a now dilapidated and unused crematorium. There were no visible tombstones on the site, only about 1 000 containers.
When the matter came before the judge for argument, the parties agreed to only deal with a preliminary issue: whether Samie had locus standi, with the trust arguing that he was acting alone, in his private capacity, and not in the public interest, notes TimesLIVE.
Samie, in his affidavit, said he knew the site from when he was young and knew it to be an important reflection of the history and culture of the people of Indian origin.
At the outset in 2009, when the site was being cleared, he started a Facebook page and vocally campaigned against the damage to the property. He engaged local, provincial and national governments, the police and senior politicians.
The judge said: ‘In our democratic dispensation, overseen by the Constitution and the Bill of Rights, courts are enjoined to foster, promote and advance fundamental rights and values. In my view a court adopting a restrictive and technically obsessive interpretation (of locus standi) not only hampers the development of our law, but also abrogates its duty to promote the Constitution.’
Henriques said this did not mean Samie, who is representing himself, would ultimately be successful, and she urged him to seek legal assistance going forward.
Article disclaimer: While we have made every effort to ensure the accuracy of this article, it is not intended to provide final legal advice as facts and situations will differ from case to case, and therefore specific legal advice should be sought with a lawyer.