Durban - As Durban businessman, Jay Singh, prepared to take the stand on Monday in the commission of inquiry into the collapse of his Tongaat Mall, he and his legal team were dealt a blow over the construction of a housing development in Newlands West.
Singh, through his company, Woodglaze Trading, had approached the Durban High Court to have a R1.4 million fine imposed on him by the National Home Builders Registration Council (NHBRC) reviewed and set aside because it was “too harsh”.
The court, however, dismissed the application with costs, including the costs of counsel employed by NHBRC.
The council, which requires all builders to be registered with it to protect people from poor workmanship, was represented by advocate Kemp J Kemp and Pather and Pather Attorneys.
In December 2013, the NHBRC stopped work on the construction of 96 units at Woodglaze’s Newlands West housing development after it emerged that the company was not registered with the council.
Woodglaze Trading is headed by Singh’s former wife, Shireen Annamaly.
A disciplinary hearing was set up the following month and Singh was fined R15 000 for each of the 96 units.
Singh approached the high court to have the penalties imposed on him set aside because they were tainted by “serious misdirection and failure (by the disciplinary committee) to apply their minds”.
Judge Peter Olsen said Singh’s legal team had laid no factual foundation which could enable a court of law to conclude that the disciplinary committee had overstepped its mark.
“When considering a criminal appeal, the court has a body of law and a precedent to guide it in making an assessment as to whether a complaint that a sentence is too harsh can be sustained.
“In the present instance, the court is confronted with a decision of a specialist tribunal made in a particular context where the tribunal (two of whose members are technical assessors) makes a decision on penalty against the background of a specialist’s knowledge which, it must be said, must also have been available to the applicant as an experienced home builder,” Olsen said.
“The papers in this application and the record of proceedings delivered to the registrar are devoid of information which is presumably material to a consideration of whether or not the penalty per unit, or the penalties cumulatively, met the exigencies of the occasion.”
The judge said that Singh’s papers had also been devoid of any information concerning the financial risks attaching to any unit which might not have been built in accordance with the council’s standard which may have been relevant to his argument that the fines were too harsh.
“In the circumstances and without thereby necessarily holding that the penalties imposed by the first respondent committee were appropriate, I find that the argument that the decision on the penalties is reviewable because it is too harsh, or because the disciplinary committee misdirected itself by not taking into account all relevant factors, must fail.”
Daily News