Court battle to ‘eject’ occupiers at KZN’s Tongaat mall site

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Tongaat Mall in its current state.
Tongaat Mall in its current state.

The owners of the oThongathi Mall development in Tongaat are bringing an urgent application to the Pietermaritzburg high court next week to be allowed to take control of the site and the project.

oThangathi Mall wants to secure the site so that it can ultimately finish the construction of the mall for the “benefit of the company and the community”, said papers filed in the court.

The application is against another company, Sabicare, the Military Veterans Association, 18 people who are named, any further occupiers of the partly built mall, Investec, the minister of Police, the eThekwini Municipality, the station commander of the Tongaat police station and operational commander of the public order policing in Durban North.

The order being sought is to “eject” Sabicare, the association and people from the property at the corner of Ganie Street and 263 Gopallal Hurbans Street in Tongaat and for them to be ordered to immediately relinquish possession and to refrain from entering the premises.

The company also wants to interdict them from threatening or intimidating oThongathi, its employees and others.

It also wants them stopped from entering, interfering with or disrupting any construction activities.

READ | Dispute over incomplete Tongaat mall

Johan Botha, managing director of the mall, said that in November 2013, a portion of the mall collapsed, injuring 29 people and killing two of the construction employees.

Construction was thus halted.

Botha’s company’s involvement with the mall started in 2018 when oThongathi purchased the development.

He said that in terms of a contract, Sabicare was appointed as a contractor and the site was formally handed to it on April 3, 2019.

But then in October 2020 oThongathi cancelled the agreement with Sabicare and it was directed to vacate the site that month.

However, Sabicare refused to relinquish possession of the site and has persisted with this attitude since.

Botha said that in the same month he attended a meeting with various parties who refer to themselves as “stakeholders”.

“It is equally clear that there is no reasonable prospect of this impediment to the progress of the works being removed in the near future.”
oThongathi Mall MD Johan Botha

They demanded that oThongathi reinstate Sabicare and pay all alleged outstanding amounts so that the latter is able to pay its subcontractors.

Furthermore, the stakeholders claimed that they and not Sabicare are in control of the site, he said.

Also, they made it clear that they will remain in control of the site until their demands are met.

Botha said that there has been no building activity on the site for months.

He also described what the site looks like and said it is extremely dangerous to anyone in the vicinity.

Sabicare’s case, added Botha, is that work stopped because of protest action by the business and labour forums in the area.

“It is equally clear that there is no reasonable prospect of this impediment to the progress of the works being removed in the near future.”

ALSO READ | Mall calamity

Botha said that the members of the community and/or business forums have made it clear they will not allow Sabicare to proceed.

In addition, Sabicare has made no attempt to prevent the self-appointed stakeholders or the “community” from interfering with its alleged contractual obligations to oThongathi.

Botha said it is in the interests of both the local community and the public in general that a shopping mall of this kind be completed and become economically active.

oThongathi is suffering substantial damages as a result of the stalemate.

For instance it is paying about R8 500 interest per day to Investec, said Botha.

The company is also suffering a substantial loss in rental revenue due to the delay in the opening of the mall.

He said people who have no legal right have taken over the site and are effectively extorting oThongathi.

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