Durban - The developer of the Tongaat Mall has been served with contempt of court papers by the eThekwini Municipality but has vowed to oppose the action.
Municipal spokesman, Thabo Mofokeng, said the papers were issued last Thursday and the matter had been set down to be heard in February in the Durban High Court.
He said the papers were not in the court file this week as they were in the possession of the sheriff.
Mofokeng said the city could not release the court papers until it had official confirmation from the sheriff that they had been served.
The city had not received confirmation at the time of publishing.
It is the municipality’s intention to seek an order for contempt of court against Rectangle Property Investments.
The council is also seeking to have the building demolished.
The close corporation is run by controversial Durban businessman Jay Singh’s son, Ravi Jagadasan.
Jagadasan indicated on Thursday through his spokeswoman, Melanie Moodley, that Rectangle Properties had received the city’s court papers and intended to oppose the application.
The developer was discussing the matter with his legal team, said Moodley.
A section of the incomplete mall collapsed last month, killing two employees and injuring 29.
The city has been trying since March to stop the developer from continuing with construction on the site because the mall was being built without approved plans.
At the time of the tragedy, municipal manager, Sibusiso Sithole, had said they were preparing an application for a contempt of court order even before the structure collapsed.
On November 14 the city was granted a final court order against Rectangle Properties calling on it to stop construction until it obtained the municipality’s approval to erect the building in accordance with the provisions of the National Building Regulations and Building Standards Act.
According to the order the developer was given 30 days, from the time the order was served, to make the application to the municipality. If it failed to obtain approval, it would have to demolish all the structures built on the property.
Singh had previously told the Daily News that they received a copy of the order only on November 20, a day after the mall collapsed. However, the interim order was granted at the end of September and it was this same order that was made final on November 14.
The interim order had called for the developer to stop building immediately and had given him until November 14 to say why it should not be made final.
A letter in the court file from the developer’s lawyer, Rajan Naidoo, indicated he would not come to court to oppose the order being made final.
A day before the final order was granted, the municipality’s lawyer had also written to the developer’s lawyer to confirm their non-attendance.
According to the current application, the municipality’s building inspector, Cyril Dube, became aware of the mall construction in March.
An internal investigation revealed that building plans were submitted in November 2006 by the Strathmore Property Investment Trust for approval to erect a shopping mall. An earthworks plan was also submitted for approval in January 2007.
The city, however, did not approve the application.
In February this year, Rectangle Property Investments submitted an earthworks plan for approval and this was refused in May.
“No application whatsoever has been made to the (municipality) by (Rectangle Properties), or anyone on their behalf, for our approval for erection of buildings which are presently under construction on this property,” the city’s legal adviser, Siyabulela Mfingwa, said in an affidavit.
According to court papers, a city inspector visited the site on several occasions thereafter and each time found that construction continued despite numerous letters being sent.
The developer was served with a summons in May and an inspection in June showed it had not complied.
Following a lawyer’s letter from the city in July saying it had no alternative but to approach the court for an interdict, the developer’s attorneys replied that they were taking instructions and urged the municipality “to hold the matter in abeyance for two weeks”.
A subsequent city inspection showed building was still taking place, which led to the court application.
In opposition, Jagadasan argued that there was no danger to members of the public or anyone else in relation to the project and said they started earthworks and excavation on March 1 because the city had given consent for such earthworks.
Jagadasan argued it was not uncommon for developers to get fast-track approval from the city to proceed with construction, after approval of plans at the pre-scrutiny stage of the plans’ submission.
He said tenants had expected to take up occupancy by January and February and if the mall was not leased by March, they would have to bear construction cost increases and potential penalties of R103 000 a day from tenants.
Daily News