Durban - The developers of the Tongaat Mall had agreed not to oppose a final order stopping all construction eight days before it collapsed, killing two people and injuring many more, the eThekwini Municipality has argued.
In its contempt of court application against the Tongaat Mall developer, Rectangle Property Investments, the city argued that by not opposing the order, the developers had accepted the order, and thus should have stopped building.
On November 29, controversial Durban businessman Jay “Ronnie” Singh showed the Daily News a copy of the final order, served on November 21, the day after the mall collapsed. He claimed at that time that this meant that he had not been in contempt of court.
Singh also told the Daily News that he was effectively in control of Rectangle Property Investments.
However, in the contempt of court application, served on Thursday and sent to media houses this morning, the city argues that the developer must have known that the order would be made final on November 14, and should have stopped work. The city also said it had proof that work continued at the mall after the interim order had been granted.
The city attached copies of the Sheriff’s Returns of Service and correspondence between both sets of lawyers.
Rectangle Property Investments, run by Singh’s son Ravi Jagadasan, was issued with the contempt of court papers last Thursday. The family’s spokeswoman, Melanie Moodley, confirmed this and said they intended opposing it.
The matter is set down to be heard on February 14 in the Durban High Court.
According to the municipality’s court papers, the final order was “informally served” on the developer’s attorneys on November 21. The mall collapsed on November 20 and the final order to stop work on the Tongaat site until building plans were submitted and approved by the city, had been granted on November 14.
The city, however, contends that Jagadasan’s lawyer sent a letter to the municipality on November 12 saying they would not oppose the final order being granted when the court reconvened on November 14 and argue that the developer “must have known that such an order would be granted on that date”.
The municipality also argued that the developer was represented by counsel in court when the interim order was granted on September 26, who would have informed the developer accordingly. The same interim order from that day was the same one which was made final on November 14.
The Tongaat Mall collapsed last month killing workers Zakithi Nxumalo and Zwelibanzi Masuku and injuring 29 employees. The city has been trying since March to stop the developers from continuing with construction on the site because the mall was being built without approved plans.
The municipality is seeking a contempt of court order against Rectangle Property Investments, for ignoring the previous stop work court orders and also calling for the developer to pay a fine, or for the owner, Jagadasan, to be sent to jail. According to their court papers, the amount of the fine and/or the length of the prison sentence, would be up to the court to decide.
The Singh family has been awarded several housing contracts by the municipality through its companies Woodglaze Trading and Gralio Precast. Singh’s now liquidated company, Remant Alton, once ran Durban’s buses.
The city’s contempt application has set down the background to its previous high court applications which have been widely publicised since the Tongaat Mall tragedy.
In its court papers, the municipality states that a day after the interim order was granted in September, their enforcement officer, Lungiswa Cemane, conducted an inspection on the property and found that building operations were still being carried out.
Photographs, taken by Cemane, of the site were also attached to the court application.
“It is evident from a perusal of such photographs that the building operations were continuing unabated as at that date,” the papers read.
Cemane again visited the site three times thereafter and still found that construction continued and again took photographs, which were attached as annexures.
The city said it addressed a letter to the developer’s lawyer on October 17 calling for them to stop construction and to comply with the provisions of the interim order. There was no response until November 12 when the developer’s lawyer sent them a letter stating they would not be in court on November 14 and that the developer thus understood that the interim order would be made final.
In response, the city said their lawyers addressed a letter to the developer’s attorney on November 13 recording that it was the city’s intention to seek a final order.
The final order read that the developer had to stop building on this property in central Tongaat until it had obtained the municipality’s approval to erect the proposed building in accordance with the provisions of the National Building Regulations and Building Standards Act.
Further, the developer was given 30 days, from the time the order was served, to make this application to the municipality and if it failed to obtain the municipality’s approval, it would have to demolish all the building works presently constructed on this property.