The Department of Labour could recommend a jail term in addition to an admission of guilt fine for those responsible for the 2013 Tongaat Mall disaster.

This emerged after Labour Minister, Mildred Oliphant had announced the matter would be referred to the National Prosecuting Authority.

She was briefing the media in Cape Town on her department’s report on the collapse of the mall. A Department of Labour commission of inquiry sat last year and has completed its report on the disaster and has made its recommendations to the National Prosecuting Authority (NPA), which will now look at the matter, a senior investigator explained this morning.

The Department of Labour said developers had contravened:

* The National Building Regulations and Building Standards Act by beginning building work before getting approval from the local authority;

* The Occupational Health and Safety Act by failing to act and in so doing “caused an injury or death” and failed to inform employees about safety standards;

The partial collapse of the Tongaat Mall on November 19, 2013, left two workers dead and 29 injured.

The R208 million project was being developed by Rectangle Property Investment and the contractor was Gralio Precast. Both companies are linked to controversial Durban businessman Jay Singh.

Oliphant said the inquiry had found that:

* Rectangle Property Investment purchased the site in 2012 from Strathmore Property Investment Trust. Included in the purchase of the property were the property plans which had not yet been approved. Strathmore Property had submitted plans on January 31, 2007.

* An application to do earthworks was made around February 28, 2013. The earthworks plans were rejected on March 20, 2013. Oliphant said this meant that the building plans could not be approved. Earthworks plans were a prerequisite to the approval of building plans.

* Excavation work was already at an advanced stage on March 8, 2013 without any approved plans.

* Gralio Precast appointed Axiom Consulting Engineer’s Services as the design engineer for the project to fulfill the role of the design engineer when the project was under Strathmore Property Investment Trust; and

* Rectangle Property Investment engaged the services of Gralio Precast as an agent and a principal contractor to perform all construction work on site.

The minister on Tuesday said she would not be revealing the names of the people responsible for the contraventions as the matter was sub judice.

She confirmed the matter would be handed to the prosecution authority.

Meanwhile a department official close to the process has told the Daily News they would be recommending a jail term.

The Department of Labour in 2014, repealed the Construction Regulation of 2003 and published Construction Regulation 2014. “This incident happened when we were finalising the process of publishing the new construction regulations of 2014. Hence we have used the 2003 Regulations when we conducted the inquiry,” she said.

Oliphant said disasters such as the mall collapse had a significant economic and social impact and had cost the department R490 million in compensation payouts in the last financial year for injuries and diseases acquired in the construction industry alone.

“The economic cost and implications to workers who are injured and to the families of the deceased are immeasurable. To them there can be no consolation and no amount of money can replace their family members who have been lost or left permanently disabled.”

Businessman Jay Singh, who was behind the building of the mall, this morning declined to comment on the report. He said it would premature to do so before the NPA had had view of it and made a decision on what it planned to do.

During the inquiry into the mall collapse, design engineer Andre Ballack’s attorney, Richard Hoal, argued the collapse was due to contractor Gralio Precast’s negligence, and failure to comply with its obligations in terms of regulations.

He said the collapse occurred because of under-strength concrete present in the columns that collapsed or due to the lack of reinforcing in beam seven. Tests had found that some of the concrete used was less than a third of the required standard strength of 30 megapascals (mPa). Beam seven, and two columns, were identified as the three possible causes.

Hoal argued that beam seven failed first and that Ballack had not authorised the pour on beam seven, saying there was no request to inspect it when reinforcing was made.

Hoal said it was common cause that Gralio failed to construct the mall in accordance with the design. He argued the cause of the collapse was due to:

* Gralio’s failure in hiring adequately qualified and competent supervisors on site.

* Gralio not supervising or approving any work undertaken by subcontractors.

* Gralio relying on the performance of subcontractors and their hope that Ballack, during his ad hoc inspections, would pick up any discrepancies.

Hoal blamed Gralio for failing to appoint Ballack to perform any construction monitoring service.

Advocate Saleem Khan, acting for Rectangle and Gralio, said Gralio’s chief executive, Singh, repeatedly told Ballack not to take any risks in the self-funded project. He argued that in Gralio hiring a qualified and competent professional team, it was absolved of all responsibilities.