A property developer in Umhlanga faces a 30-day jail term after the KwaZulu-Natal High Court declared him and his company in contempt of court for allegedly continuing construction and excavation work despite an interdict, with the sheriff authorised to seize machinery at the site.
In an order issued on Sunday at the KwaZulu-Natal High Court, Durban, Judge Pitman declared Sun Star Investments (Pty) Ltd and its director, Dr Ashraf Mohammed, to be in deliberate contempt of a court order granted on October 16.
The court imposed a 30-day period of imprisonment on Mohammed, both in his personal capacity and as the company's registered and sole director. The sentence is suspended indefinitely on condition that the respondents and those acting on their behalf immediately comply with the interdict and stop all construction, excavation, earthworks, material removal and demolition activities at the property.
The order also authorises the sheriff to seize, attach, impound or remove construction machinery, including excavators, trucks, concrete mixers, vehicles and tools found at the site or arriving there.
The application was brought by the Umhlanga Ratepayers and Residents Association and 123 Net CPT (Pty) Ltd against Sun Star Investments, Mohammed and eThekwini Municipality.
Alleged defiance of court order
According to the applicants' practice note, the court granted an interim interdict on Friday, October 16, restraining Sun Star Investments from continuing building work, earthworks and excavations at 185 Ridge Road, Umhlanga.
The applicants alleged that, despite the order being formally served by the sheriff and sent to the respondents via WhatsApp and email, with receipt allegedly acknowledged, work at the property continued.
The practice note states that additional heavy earthmoving machinery and trucks were brought to the site on Saturday morning, October 17.
The applicants further alleged that contractors said they had direct instructions from Mohammed to continue working through the night despite the interdict.
They also claimed that contractors had threatened staff of 123 Net CPT with the destruction of telecommunications infrastructure at the site.
These allegations formed part of the applicants' motivation for seeking urgent intervention to enforce the court order.
Sheriff authorised to seize machinery
The court granted an interim enforcement and site-preservation order authorising the sheriff, or a lawful deputy, to enter the property and seize, attach, chain, impound or remove machinery and equipment.
The order lists excavators, yellow metal equipment, removal trucks, concrete mixers, vehicles and tools, including equipment arriving at the site.
The seized machinery and equipment are to be kept in secure storage pending the final determination of the main application.
The sheriff is also authorised to establish a physical cordon around the property to prevent further unauthorised alterations, excavation, material removal or other work that could undermine the court order.
The order states that these measures are intended to preserve physical evidence and protect the structural and lateral support of the adjoining M4 public road reserve.
Police ordered to assist sheriff
The court authorised and directed the South African Police Service, including the station commander of Durban North police station and officers operating under that command, to accompany the sheriff to the site.
Police are required to maintain order, prevent interference and ensure the safety of the applicants, their legal representatives and tenants of the Umhlanga Centre.
The applicants argued that urgent intervention was necessary because of the alleged risk of structural failure involving a 5.8-metre retaining structure, which they said could collapse onto a busy public and commercial area.
They also raised concerns about possible disruption to public off-ramps along the M4 and the alleged threat to telecommunications infrastructure.
Matter returns to court on Thursday
The court issued a rule nisi calling on Sun Star Investments and Mohammed to show cause why the order should not be made final.
The matter is scheduled to return to court on Thursday, October 22, at 9.30am before Judge Pitman, or as soon as it can be heard.
The court also ordered the first and second respondents to pay the costs of the application on an attorney-and-client scale, jointly and severally, with one paying and the other being absolved.
The costs incurred by the sheriff and a person identified in the order as Mr Brown in carrying out the enforcement measures are also to be paid by the respondents, jointly and severally, in accordance with the order.
The contempt finding and enforcement measures form part of the interim proceedings, with the matter still subject to further consideration on the return date.
sinenhlanhla.masilela@iol.co.za
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