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[2019] ZAKZDHC 5
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Gopaul and Another v Lutchman and Others (13185/2016D) [2019] ZAKZDHC 5 (17 May 2019)
IN THE HIGH COURT OF SOUTH AFRICA
KWAZULU-NATAL
DIVISION, DURBAN
CASE NO: 13185/2016D
In the matter between:
VISHAL GOPAUL
FIRST APPLICANT
SHELENA
GOPAUL
SECOND APPLICANT
and
AROOGMUGAN
LUTCHMAN
FIRST RESPONDENT
GLADYS
LUTCHMAN
SECOND RESPONDENT
ETHEKWINI
MUNICIPALITY
THIRD
RESPONDENT
ORDERS
1.
The first and second respondents are granted condonation
for the late
noting of the application for leave to appeal;
2.
The application for leave to appeal is dismissed with
costs;
3.
The applicant’s application in terms of
section 18
of the
Superior Courts Act 10 of 2013
is adjourned
sine die
. Leave is
granted to the applicants to file a supplementary affidavit should
the application need to be re-enrolled;
4.
It is recorded that the order of Lopes J of 8 February
2018 has
lapsed.
JUDGMENT
ON APPLICATION FOR LEAVE TO APPEAL
Henriques
J
Introduction
[1]
This is an application for leave to appeal by the first and second
respondents, to
the full court of this division, alternatively to the
Supreme Court of Appeal, against the entire judgment and orders which
I delivered
on 30 November 2017
[1]
.
The application for leave to appeal is opposed by the applicants.
[2]
The judgment and orders I issued related to the first and second
respondent’s
application to stay the eviction proceedings
pending an application for the rescission of judgment being
lodged.
[2]
I dismissed the application to stay the eviction proceedings and
granted the order for eviction.
[3]
Given the number of interlocutory applications, for the sake of
convenience, I will
refer to the parties in this application as they
were cited in the eviction application, the Gopauls, being the
applicants in the
eviction application and the Lutchmans, the
respondents in the eviction application. The third respondent did not
oppose the proceedings
nor file any report.
Grounds
of appeal
[4]
The grounds of appeal as set out in the application for leave to
appeal are the following:
‘
1.
The Court erred in not granting the Respondents the opportunity to
file an application
for the rescission of a judgment handed down by
the Provincial Division of the High Court, Pietermaritzburg, which
judgment was
granted in default against the Respondents.
2.
The Respondents obtained a provincial (sic) order against one Lancis
Chetty,
who unlawfully and fraudulently sold the Applicant’s
property to the first and second Applicants.
3.
Because of the fact that the Respondents’ Attorneys neglected
to follow
through with the matter in obtaining final judgment against
one Lancis Chetty who unlawfully and fraudulently sold the
Respondents’
property to the First and Second applicants, such
provincial (sic) judgment was dismissed in default of the
Respondents’
Attorneys not attending to the matter.
4.
The Court erred in not granting the Respondents a stay in the
eviction proceedings
pending the finalisation of the matter between
the Respondents and one other Lancis Chetty who is the person that
unlawfully and
fraudulently sold applicants’ property to the
First and Second Applicants. See Respondents [application] to
stay as
Annexure A.
5.
The Court ought to have taken the Respondents Chapter Two of the
Constitution
of South Africa civil, political and socio-economic
rights into consideration.
6.
The Court erred in not taking into consideration and enforcing the
Respondents’
rights in terms of section 24 of the Constitution.
7.
The Court ought to have held that the Respondents may not be deprived
of property
except in terms of law of general application, and no law
may permit arbitrary deprivation of property especially when there
are
strong allegations of fraud in such deprivation claim.
8.
The Court erred in its finding that the mere production of a Deed of
Transfer
is absolute proof of ownership without the Court taking all
reasonable measures to investigate further the allegations of
unlawful
and fraudulent deprivation of property.
9.
The Court erred in dismissing the application to stay the eviction
proceedings.
10.
The Court ought to have upheld the Respondents’ application as
the Respondents engaged
the services of new attorneys and Counsel in
this matter as the Respondents’ previous attorneys were
negligent and or refused
to have given this matter due attention’.
[3]
[5]
The Lutchmans submit that another court might come to a different
conclusion in the
above matter.
[6]
The application for leave to appeal is opposed by the Gopauls, the
registered owners
of the immovable property who obtained an order for
the eviction of the Lutchmans on 30 November 2017, after the
application to
stay was dismissed with costs.
[7]
It needs mentioning that the orders and
ex temporae
judgment
were delivered on 30 November 2017 in the presence of the Lutchmans
and their legal representatives who listened to the
judgment and
orders that were granted. They were thus aware from 30 November 2017,
that they were required to vacate the immovable
property by 1
February 2018.
[8]
The application for leave to appeal, although dated 31 January 2018,
does not appear
to have been served on the Gopauls’ attorney
and was filed with the registrar on 2 February 2018, the day after
the Lutchmans
were required to vacate the immovable property.
There is no explanation as to why the application for leave to appeal
was
brought so late and why there is no prayer for condonation.
[9]
At the hearing of the application for leave to appeal, I raised this
with Mr
Naidoo
, who appeared for the Gopauls. Copies of
correspondence that was placed in the court file indicated that the
Gopauls’
attorney had repeatedly brought to the attention of
the Lutchmans’ attorneys, Balram attorneys, that condonation
was an issue
that needed to be dealt with. Despite this having been
pertinently brought to the Luchmans’ attention via
correspondence,
no application for condonation was filed.
[10]
Although the
Superior Courts Act, 10 of 2013
does not appear to deal
with this aspect, the Uniform Rules do. Uniform rule 49(1)(b)
provides for the application for leave to
appeal to be brought within
15 days of the date of the order and full reasons for the court’s
decision, but that the court
may, on good cause shown, extend the
period of fifteen days. Consequently, although there is no
explanation for the delay in bringing
the application for leave to
appeal and no order for condonation was sought, Mr
Naidoo
submitted that the court ought to grant condonation which would not
be opposed by the Gopauls. I believe this to be a pragmatic
approach
and to the extent necessary, the Lutchmans are granted condonation
for the late filing of the application for leave to
appeal.
[11]
Given the history of the matter and what transpired at the hearing of
the application, it is
prudent to deal with the enrolment of the
application for leave to appeal. From what is contained hereinafter,
it becomes self-evident
that the Lutchmans have, throughout the
course of litigation between the various parties, done their level
best to delay the proceedings,
often waiting until the eleventh hour
to take steps to advance their case and have on no less than two
occasions laid the blame
at their legal representatives doorstep.
The
date for the hearing of the application for leave to appeal
[12]
On receipt of the application for leave to appeal, the general office
of the registrar made attempts
to locate the court file pursuant to
my request. This proved challenging in light of the fact that the
Lutchmans’ attorneys
of record did not disclose that the matter
was enrolled for the hearing of an urgent application on 8 February
2018. The court
file was accordingly not in place. Subsequently, the
court file was located, and attempts were made to enrol the
application for
leave to appeal for hearing.
[13]
This too proved challenging, in light of the fact that the Lutchmans’
attorneys of record
did not, in the application papers filed,
nominate a local address for service. In consequence thereof,
attempts were made to obtain
the email address and telephone numbers
of the Lutchmans’ attorneys, Balram attorneys. This also proved
challenging. In consequence
thereof, the Gopauls’ attorneys of
record were contacted and requested to liaise with the Lutchman’s
attorneys local
correspondent in the application to stay the eviction
in an attempt to obtain dates for the hearing of the application for
leave
to appeal.
[14]
Several attempts were made to arrange a mutually convenient date for
the hearing of the application
for leave to appeal and to contact
Balram attorneys but this was to no avail. In consequence thereof,
the matter was enrolled for
hearing on 17 May 2018. On 8 May 2018,
the Gopauls’ attorneys were notified of the date for hearing
and on 9 May 2018, a
letter was dispatched to Balram attorneys, care
of R & S attorneys, informing them of the date assigned for the
hearing of
the application for leave to appeal.
[15]
Accompanying such letter was the notice of set down together with a
copy of the court’s
transcribed judgment which had been
arranged by the Gopaul’s legal representatives. In addition, as
a matter of caution,
a notice of set down was also served personally
via sheriff on the Lutchmans.
[16]
I must reiterate that the matter was enrolled in this fashion in
light of the fact that the Lutchmans’
attorneys took no steps
to enrol the application for leave to appeal nor to arrange a
transcript of the court’s
ex temporae
judgment. Attempts
to liaise with their correspondent attorneys, R & S Attorneys, to
obtain a date also proved fruitless.
[17]
On 11 May 2018, a letter was despatched from the offices of Balram
Attorneys on their letterhead
to the Gopauls’ attorney, Nivesh
Hiralall, which contained all their contact numbers as well as an
email address. This letter
indicated that neither the Lutchmans’
advocate nor their attorney were available on 17 May 2018 to deal
with the application
for leave to appeal. The letter recorded
the following:
‘
.
. .Please can you provide us with a date two months in advance so
that we can all mutually diarise the matter and attend to it
accordingly.’
[18]
In consequence thereof, on 15 May 2018, the Gopauls’ attorneys
of record indicated that the date was
allocated by the presiding
judge in accordance with the practice in this division. The attorneys
were requested to contact Ms Snijders,
the registrar temporary
allocated to assist me. In consequence thereof, and so as to
accommodate the Lutchmans’ attorney
and counsel, the matter was
removed from the roll for 17 May 2018 and an email was despatched by
Ms Snijders to both parties’
legal representatives on 15 May
2018 indicating that the application for leave to appeal must be
enrolled during term time within
the next session and that the legal
representatives ought to liaise with each other and propose dates for
the hearing of the application
for leave to appeal.
[19]
The legal representatives were also provided with the email address
of Ms Pieterse who would
be temporarily assigned to me during the
next session. I am advised by Ms Snijders that the Lutchman’s
attended at court
in person on 17 May 2018 after receipt of the
notice of set down. On 16 May 2018, the Lutchmans’
attorneys of record
responded indicating that they were available to
attend to the matter in the July recess and provided four dates. This
was despite
the email of 15 May 2018 advising them that the
application for leave to appeal must be set down during term time in
the next session.
[20]
On 17 May 2018, in response to Balram attorneys’ email of 16
May 2018, Ms Snijders advised
that Mr Balram ought to correspond with
the registrar assigned to me, Ms Pieterse, and not directly to myself
and secondly that
he was to copy the Gopauls’ attorneys in
future emails, and further that the matter must be set down during
term time which
is from 21 May to 29 June 2018, and not during the
July recess.
[21]
As a consequence of Balram attorneys’ failing to provide dates
in term time being 21 May to 29 June
2018, despite Ms Snijders’
advice in the emails of 16 and 17 May 2018, the matter was then
enrolled for hearing at 11h30
on 28 June 2018 at the Pietermaritzburg
High Court. The date of 28 June 2018 was a reserve day on which the
matter could be better
accommodated. On 14 June 2018, Ms Pieterse
emailed Balram attorneys to once again advise that July was recess
and that the matter
was set down for hearing at 11h30 on 28 June
2018. On 16 June 2018, in response to such email, Mr Balram responded
and advised
that he was not available on 28 June 2018 but was
available on 29 June 2018.
[22]
On 20 June 2018, a letter was forwarded to Ms Pieterse (although it
was addressed to one Hayley
Greeff). The letter indicated that both
Balram attorneys and counsel were not available on 28 June 2018 and
were only available
on 29 June 2018. In addition, dates were
requested for July, August and September 2018.
[23]
On 21 June 2018, Ms Pieterse again advised the parties’ legal
representatives via email
that the matter will proceed on 28 June
2018. In response thereto, on the same day, Balram Attorneys informed
Ms Pieterse via email
that the Lutchmans had instructed him to
approach the Judge President and in the event of him not doing so,
the Lutchmans had indicated
they would do so themselves, and bring to
the attention of the Judge President that they were not available on
28 June 2018.
[24]
In consequence thereof on 22 June 2018 an email was directed to Ms
Jagannath, the registrar of
the Judge President. The letter did not
however record the attempts made to enrol the matter and the
correspondence exchanged with
the registrars. All it did was record
that I had directed the matter would proceed on 28 June 2018 despite
their non-availability.
It also recorded or requested dates after the
July recess.
[25]
On 22 June 2018, Ms Jagannath informed the parties that she would
bring the matter to the Judge
President’s attention on Monday
25 June 2018. On the same day, pursuant to a request, I informed the
Judge President’s
registrar of the history of litigation in the
matter and set out the attempts to enrol the matter for hearing. I
was of the view
that the Lutchmans were intent on delaying the
hearing of the application for leave to appeal as had been the
practice throughout
the litigation.
[26]
I recorded that the Lutchmans’ legal representatives, Balram
Attorneys, were uncooperative when it
came to enrolling the matter
during term time. I followed the practise in this division and
enrolled the matter for hearing on
a date on which it could be
accommodated in the reserve dates given. The roster for the session
had been finalised and work already
assigned for the session. I may
add that this day was the second day of the reserve days and would
have had minimal impact to already
assigned duties and was the most
suitable date to accommodate this matter. This was despite the fact
that I was engaged in a criminal
session from Monday, 25 June 2018 up
to and including Friday, 29 June 2018.
[27]
I am advised that on 25 June 2018, the Judge President responded to
Balram attorneys and indicated
that he was not inclined to interfere
with the matter and that the application for leave to appeal would
proceed on the date allocated,
being 28 June 2018.
[28]
On 26 June 2018 at 15h09, an email was despatched from Balram
attorneys to the Judge President’s
secretary as well as Ms
Pieterse and copied to the Judge President. It once again recorded
that the attorney and counsel were not
available to attend to the
matter on 28 June but rather would be available on 29 June. It also
recorded that I was no longer available
on 29 June 2018 despite
having initially informing the Lutchmans’ legal representatives
in early May 2018, before the commencement
of the session in
Pietermaritzburg, that I was available on that date. What this
failed to take into account is that the
roster is amended during the
course of a session and further work allocated.
[29]
On the morning of 28 June 2018, Ms Lutchman appeared at the hearing
of the application for leave
to appeal in person, also representing
her husband. Aroogmugan Lutchman. She indicated that her legal
representatives informed
her that the matter had been set down and
enrolled for hearing on 29 June 2018. She was unable to provide me
with a notice of set
down in confirmation thereof. I enquired from
her how she became aware of the date of 28 June 2018 if this was what
her attorneys
informed her.
[30]
She indicated that at 04h00 on the morning of 28 June 2018 she
received a telephone call from
her legal representative advising her
that her matter was enrolled for hearing and that she ought to make
her way to court and
ensure that she was in attendance. She was
advised to bring it to the court’s attention that her legal
representatives had
informed her that matter had been enrolled for 29
June 2018 and that they were not available to attend to the matter on
28 June
2018.
[31]
I took Mrs Lutchman through the correspondence exchanged with her
attorneys of record in relation
to enrolling the matter for hearing.
She confirmed that she also received the notice of set down for the
date of hearing being
28 June 2018 but did not do anything about
same. She confirmed that she had had a telephonic discussion with her
attorneys of record
and advised them of receipt of the notice of set
down but they indicated to her that they had enrolled the matter for
hearing on
29 June 2018.
[32]
Given the correspondence exchanged with the Judge President at the
apparent instruction of the
Lutchmans I advised Mrs Lutchman of the
contents of such correspondence specifically that her attorneys were
advised by the office
of the Judge President that the matter would
proceed. Ms Lutchman denied having instructed her attorneys to make
such approach
to the Judge President.
[33]
I stood the matter down to enable Mrs Lutchman to make telephonic
enquiries with her attorneys
of record. After doing so she advised
the court that they informed her that the matter was enrolled for
hearing on 29 June 2018
and they would not be in attendance on 28
June 2018. She further informed the court she would await her
attorneys.
[34]
Mr.
Naidoo
on behalf of the Gopauls placed on record the
attempts made to enrol the matter for hearing since March 2018. In
addition, Mr
Naidoo
indicated that the matter was enrolled for
17 May 2018 when the Lutchmans’ legal representatives refused
to co-operate and
provide a date for hearing the application for
leave to appeal which was convenient to them. They were accommodated
and requested
on no less than two occasions to provide dates for the
hearing of the application for leave to appeal which would be
convenient
to them during the term. They failed to do so.
[35]
In addition, the Gopauls had incurred costs and legal fees,
specifically sheriff’s fees
which they incurred to enrol the
matter on no less than two occasions. This involved notices of set
down being served personally
on the Lutchmans in light of the fact
that the attorneys of record were not co-operating and did not
initially provide a local
address for the service of papers. Mr.
Naidoo
indicated that the matter had been properly enrolled
and ought to proceed. In addition thereto the Gopaul's had
incurred
the costs of obtaining a transcript of the
ex temporae
judgment which should have been obtained by Balram attorneys and this
was also made available to Balram Attorneys.
[36]
I may also add that the Gopauls’ attorneys of record had taken
added precautions and served via the
sheriff the notice of set down
together with a covering letter informing the Lutchmans of the
practice in this division and recording
that the application for
leave to appeal had to be heard before the end of the court session
and not in the July court recess,
and advising them that the matter
had been enrolled for hearing on 28 June 2018 at 11h30 in
Pietermaritzburg. They were in addition
requested to instruct an
alternative counsel in the event of their counsel not being
available.
[37]
The notice of set down together with a covering letter was served
personally by the sheriff on
Mrs Lutchman and Mr Lutchman on 20 June
2018. Ms Lutchman confirmed receipt thereof.
[38]
Taking all of this into consideration, I informed Mrs Lutchman that
the matter would proceed
and once again enquired from her as to what
she wanted to do and she indicated that she would remain in
attendance and would await
her attorneys. The matter then proceeded
in the absence of Mrs Lutchman’s legal representatives who were
in default of appearance
despite adequate notification.
The
judgment in the application to stay the eviction and the eviction
application
[39]
The
ex temporae
judgment and the reasons for refusing the
application to stay the eviction application are a matter of record
and I do not propose
to deal with them in any detail. Essentially,
the application to stay was refused in light of the fact that the
court was of the
view that the Lutchmans were not
bona fide
in
bringing the application to stay the eviction and had not
satisfactorily explained the delay in doing so, and were also were
not
bona fide
in dealing with the reasons why they failed to
bring the application for the rescission of the default judgment
which had been granted
at an early stage.
[40]
The record and the contents of the court files reveal that the
Lutchmans were aware as at 15
November 2017 that their erstwhile
attorney of record, Sue Pillay, had withdrawn and were also aware
that the matter was enrolled
for hearing on 30 November 2017. There
was no explanation provided as to why from 15 November 2017 until 23
November 2017 they
delayed in instructing their new attorney, Ms
Moodley. Ms Moodley withdrew as a consequence of the Lutchmans not
placing her in
funds to proceed to oppose the eviction application.
[41]
Yet the Lutchmans instructed Balram attorneys and Mr
Pietersen
at
the eleventh hour and raised funds to secure their attendance at
court on 28 November 2017. They also instructed them to
bring
the application to stay the eviction proceedings pending the
application to rescind the default judgment which had been granted
many years previously. It is instructive to note that Balram
Attorneys and their counsel are from Cape Town.
[42]
The eviction application was dealt with immediately after the
application to stay the eviction
was dismissed with costs. Mr
Pietersen
and Mr Balram were in attendance and Mr
Pietersen
was given the opportunity to make submissions in relation to the
merits of the eviction application. He did so duly instructed
and
these were considered before I granted an eviction order and
determined the dates for the Lutchmans to vacate the property.
The
Lutchmans were thus represented both at the hearing of the eviction
application as well as the application to stay the eviction.
[43]
In addition, the transcript of the proceedings indicate that Mr
Pietersen
was constrained by what was contained in the papers
and, in light of the lack of information and given the hurried manner
in which
the papers were drafted, he was also given the opportunity
to obtain further instructions in relation to the queries which I
raised
considering that the Lutchmans were present in court. Mr
Pietersen
, on a number of occasions recorded that he could not
make further submissions and was constrained by what was in the
papers and
could not assist the court.
[44]
In the eviction application, he placed the personal circumstances of
the Lutchmans on record
and given the time of year, requested that
the Lutchmans be given an opportunity of six months to find
alternative accommodation.
The
test in an application for leave to appeal
[45]
Applications for leave to appeal are governed by
ss 16
and
17
of the
Superior Courts Act 10 of 2013
.
Section 17(1)
reads as follows:
‘
Leave
to appeal may only be given where the judge or judges concerned are
of the opinion that—
(
a
) (i) the appeal would
have a reasonable prospect of success; or
(ii) there is some other
compelling reason why the appeal should be heard, including
conflicting judgments on the matter under consideration;
(
b
) the decision
sought on appeal does not fall within the ambit of
section 16(2)
(a)
;
and
(
c
) where the
decision sought to be appealed does not dispose of all the issues in
the case, the appeal would lead to a just
and prompt resolution of
the real issues between the parties.’
[46]
The Lutchmans submit in their application that there are reasonable
prospects of success within
the meaning of
s 17(1)(
a
)(i) of
the
Superior Courts Act. The
phrase ‘reasonable prospects
of success’ has been held to mean there is a reasonable
possibility that another court
might come to a different decision.
[4]
[47]
However, with the enactment of
s 17
of the
Superior Courts Act, the
test has obtained statutory force. The test to be applied is to
use the word ‘would’ in deciding whether to grant
leave
to appeal – in other words, ‘would’ another court
come to a different decision. In the unreported
decision of
The
Mont Chevaux Trust (IT 2012/28) v Tina Goosen & 18 others
[5]
,
the Land Claims Court held, albeit obiter, that the wording of the
subsection raised the bar for the test that now has to be applied
to
an application for leave to appeal. In
Notshokovu v S
[6]
it was held that an appellant faces a ‘higher and stringent
threshold’ in terms of the
Superior Courts Act.
[48
]
In
Acting National Director of Public Prosecutions & others v
Democratic Alliance In Re: Democratic Alliance v Acting National
Director of Public Prosecutions & others
[7]
,
Ledwaba DJP writing for the full court considered the test as
envisaged in
s 17
of the
Superior Courts Act. At
para 25 of the
judgment he dealt with the test set out in para 6 of
The Mont
Chevaux Trust
above where Bertelsmann J held the following:
‘
It
is clear that the threshold for granting leave to appeal against a
judgment of a High Court has been raised in the new Act.
The
former test whether leave to appeal should be granted was a
reasonable prospect that another court might come to a different
conclusion, see
Van
Heerden v Cronwright & others
1985 (2) SA 342
(T) at 343H
.
The use of the word “would” in the new statute indicates
a measure of certainty that another court will differ
from the court
whose judgment is sought to be appealed against.’
[49]
Thus, in relation to the provisions of
s 17
of the
Superior Courts
Act, the
test in respect of an application for leave to appeal is not
whether another court ‘may’ come to a different decision
but the test is ‘would’ another court come to a different
decision. I have to determine whether another court
would
come
to a different decision.
[50]
The application to stay the eviction of the Lutchmans required this
court to consider the merits
of any rescission application and the
steps taken to pursue such application. To this end it is necessary
for the court to deal
with this in some detail as this was considered
in dismissing the application to stay the execution.
[51]
In doing so, I had regard to the application papers under case no.
9815/2015. The facts relevant
to that application are as follows. On
22 October 2007 Nedbank Limited obtained judgment against the
Lutchmans in respect of a
mortgage bond and as a consequence arranged
a sale in execution of the immovable property for 7 December 2007.
[52]
On 27 November 2007 a purchase and sale agreement was signed between
the Lutchmans and one Lancis
Chetty.
[8]
Pursuant to the conclusion of the purchase and sale agreement, Lancis
Chetty obtained a mortgage bond from FirstRand Bank and attorneys
Omprakash Ramlakhan attended to the transfer of the immovable
property.
[53]
The bond was registered and the immovable property was transferred
and registered in the name
of Lancis Chetty on 2 June 2008. Pursuant
to the registration of the bond and deed of transfer, the Lutchmans
signed the power
of attorney at Durban on 27 January 2008. In
addition, the Lutchmans had given Ramlakhan instructions
simultaneously with the registration
of the transfer into the name of
Lancis Chetty to pay various creditors of theirs. These included the
bond with Nedbank which was
cancelled and the sum of approximately
R72 000 which was paid to one Bisnuth pursuant to an acknowledgment
of debt signed between
him and the Lutchmans in respect of monies
loaned and advanced.
[54]
Following registration of the transfer, monies were also paid to
Nedbank Limited in respect of
an investment account and Gavin Gow
Attorneys as well as Strauss Daly Attorneys in order to release the
attachment and cancel the
interdict in respect of the immovable
property.
[9]
[55]
On 23 November 2011, FirstRand Bank instituted proceedings against
Lancis Chetty in the Pietermaritzburg
High Court. This was as a
consequence of Chetty being in arrears with the monthly bond
instalments. The return of service in respect
of the summons and
particulars of claim was served at the
domicilium
address
which is the address of the immovable property and was served on
Aroogmugan Lutchman personally.
[56]
Prior to default judgment being granted, Mrs Lutchman attended at
court and sought leave to intervene
in those proceedings. She
indicated, whilst in attendance at court that both she and her
husband had never sold the immovable property
to Lancis Chetty and
that the purchase and sale agreement was a fraud. They challenged the
validity of the signatures to the purchase
and sale agreement and the
subsequent registration of the bond and transfer of the immovable
property into the name of Lancis Chetty.
[57]
Prior to default judgment being obtained, the court ordered an
investigation to be done by the
attorneys acting for the bank who
subsequently confirmed that the purchase and sale agreement was
signed by the Lutchmans, together
with the power of attorney to
register the transfer. In consequence thereof the matter was
adjourned at the request of Mrs Lutchman
and she was granted leave to
intervene in the application. She failed to proceed with the
application to intervene despite the
order of court, and as a
consequence thereof, default judgment was granted.
[58]
Pursuant to the default judgment, FirstRand Bank then instituted
proceedings to declare the immovable
property specially executable.
Once again the application papers were served on the Lutchmans and
Mrs Lutchman attended at court
and sought leave to intervene. This
was on 15 April 2015. She was directed to bring the application to
intervene by 18 May 2015.
[59]
Presumably, as a consequence of her failing to do so, default
judgment was granted and a warrant
of execution was issued. The sale
in execution of the immovable property was then to proceed.
[60]
The Lutchmans then instituted an urgent application under case no.
9815/2015 in the Durban High
Court. They obtained an urgent order on
18 September 2015, returnable on 9 October 2015. In terms of the
interim order, the registration
of the transfer to the Gopauls was
interdicted and the Lutchmans were directed to institute an
application to set aside the sale
agreement and declare the transfer
null and void.
[61]
The matter was adjourned on a number of occasions and in opposition
FirstRand Bank set out the
history of the litigation between the
parties and dealt with the allegations of the fraudulent purchase and
sale agreement and
transfer.
[62]
The Lutchmans did not file a replying affidavit in respect of the
allegations contained in the
answering affidavit and the matter was
then enrolled on the opposed roll. This was at the instance of
FirstRand Bank and as a consequence
of the Lutchmans failing to
comply with the court orders when the matter was adjourned on a
number of occasions.
[63]
By this stage, the immovable property had already been sold at a sale
in execution to the Gopauls
on 11 September 2015. Given the urgent
interim order obtained under case no. 9815/2015, the Gopauls did not
proceed to have the
property registered in their name, awaiting the
outcome of the urgent application and the action to be instituted
under 9815/2015.
[64]
On the date assigned for the hearing of the opposed motion, the
Lutchmans failed to appear and
their attorneys of record did not
attend at court or file heads of argument. In consequence thereof, on
9 September 2016, the interim
order granted on 18 September 2015 was
discharged by Gyanda J and the application was dismissed.
[65]
No steps were taken to deal with the purchase and sale agreement or
bring the rescission application
despite the Lutchmans being
represented. On 27 October 2016, the immovable property was
registered in the name of the Gopauls.
They gave notice to the
Lutchmans, via the sheriff, to vacate the immovable property and such
notice was served on 31 October 2016.
There was no response to the
notice to vacate and needless to say the Lutchmans remained in
occupation of the immovable property.
[66]
The application to evict the Lutchmans was issued on 20 September
2016. The notice of motion
and affidavit were served by the sheriff
on 21 December 2016. On 13 February 2017, Mrs Lutchman wrote a letter
to the registrar’s
office regarding the fraudulent sale and
requesting her attorney Mr Ngcongo to withdraw. On 16 March 2017,
attorney Sue Moodley
placed herself on record for the Lutchmans. An
answering affidavit was filed on 18 March 2017 opposing the granting
of the eviction
order. The Lutchmans indicated that their attorney,
Mr Ngcongo, did not follow their instructions and that instructions
had been
given to Sue Moodley to rescind the order.
[67]
No steps were taken to rescind the order and on 10 November 2017, the
heads of argument in the
eviction application were served on Sue
Moodley & Associates. In addition, the notice of set down was
also served personally
on the Lutchmans. The Lutchmans indicated that
on 23 November 2017, they saw Sue Moodley and that was when she
advised that they
needed to place her in funds. They failed to do so
and in consequence thereof, they knew at that stage she had withdrawn
as attorney
of record.
[68]
In addition, they knew that the eviction application was enrolled on
the opposed motion for hearing
for 30 November 2017. On 28 November
2017, the Lutchmans instructed their present attorney, Balram
Attorneys.
[69]
The Lutchmans have throughout all the proceedings blamed their
various attorneys of record for
the fact that the rescission
application was not instituted. However, there is a certain point at
which litigants cannot hide behind
nor blame their attorneys.
[70]
Given the history of the litigation, the Lutchmans, apart from not
explaining why the application
to stay was timeously instituted, in
addition did not provide any explanation for their failure to bring
the rescission application;
consequently any rescission application
is doomed to fail and has no prospects of success. I have
serious reservations that
the Lutchmans would be able to obtain
condonation in any rescission application. There is no
reasonable explanation for the
inordinate delay.
[71]
As a consequence, when taking all of the above into consideration, I
am of the view that the
application for leave to appeal has no
prospects of success and another court would not reach a different
conclusion.
[72]
It should be briefly mentioned that on 8 February 2018 the Lutchmans
were granted an order by
Lopes J allowing them to return to and
occupy the disputed premises, and provisionally suspending the
execution of the eviction
order pending the application for leave to
appeal and subsequent appeal in the eviction proceedings. This order
by Lopes J will
accordingly lapse upon my finding that leave to
appeal is dismissed. I now turn to the application in terms of
s
18(2)
and (3) of the
Superior Courts Act instituted
by the Gopauls.
Section
18(2)
and
18
(3) application
[73]
The Gopauls issued an application in terms of
s 18(2)
and (3) of the
Superior Courts Act on
19 June 2018 which was enrolled for hearing on
28 June 2018.
[74]
Such application made provision for the order of eviction on 30
November 2017 to be executed
pending any appeal to the full court,
alternatively a petition to the Supreme Court of Appeal. This
application was served on the
Lutchmans’ correspondent
attorneys on 19 June 2018. Abridged time limits were contained in the
notice of motion for the filing
of a notice to oppose as well as
answering affidavits. No notice to oppose or answering affidavits
were filed by the Lutchmans,
nor was any notice to oppose served and
filed by the Lutchmans’ attorneys, Balram Attorneys or their
correspondent attorneys.
[75]
At the hearing of the application, Mr
Naidoo
acknowledged that
this application was conditional on the court granting leave to
appeal. In the event of the court not granting
leave to appeal then
the application ought to simply be adjourned
sine die
and the
Gopauls granted leave to re-enrol it and file a supplementary
affidavit in the event of there being a change in circumstances.
[76]
Given the orders and the conclusion to which I come, it is not
necessary for me to deal with
the merits of this application and the
most appropriate order is that which is contained in the orders
hereinafter.
[77]
In the premises, the following orders will issue:
1.
The first and second respondents are granted condonation
for the late
noting of the application for leave to appeal;
2.
The application for leave to appeal is dismissed with
costs;
3.
The applicant’s application in terms of
s 18
of the
Superior
Courts Act 10 of 2013
is adjourned sine die. Leave is granted to the
applicants to file a supplementary affidavit in the event of the
matter needing
to be re-enrolled;
4.
It is recorded that the Order of Lopes J of 8 February
2018 has
lapsed.
Henriques
J
Case Information
Date of argument
:
28 June 2018
Date of judgment
:
17 May 2019
Appearances
Counsel for Applicant
:
Adv. D D Naidoo
Instructed by
:
Nivesh Hiralall Attorneys
Suite 16,
Redbro Centre,
16-22 Parthenon Street,
Phoenix
c/o Arthie Maharaj,
42 Turners Avenue,
Berea,
Durban
Counsel for First Respondent
:
Counsel in default of appearance
Instructed by
:
Balram Attorneys,
2
nd
Floor,
Waalburg Chambers,
28 Wale Street,
Cape Town
c/o R & S Attorneys,
Suite 12 on Palm Boulevard,
Umhlanga Rocks,
Durban
[1]
The applicants’ attorney of record arranged for a transcript
of the judgment to be provided before the hearing of the application
for leave to appeal. I was advised from the bar that a copy was also
provided to the first and second respondents’ attorneys
of
record.
[2]
This appears to be an obvious error as the application was
instituted in the Durban High Court.
[3]
I have gone into some detail with the grounds of appeal and the
reasons therefore will become evident during the course of the
judgment.
[4]
Van Heerden v Cronwright & others
1985 (2) SA 342
(T) at
343H.
[5]
The Mont Chevaux Trust (IT 2012/28) v Tina Goosen& 18 others
LCC 14R/2014 dated 3 November 2014
[6]
Notshokovu v S
(157/15)
[2016] ZASCA 112
(7 September 2016)
para 2
[7]
Acting National Director of Public Prosecutions & others v
Democratic Alliance In Re: Democratic Alliance v Acting National
Director of Public Prosecutions & others
(19577/09) [2016]
ZAGPPHC 489 (24 June 2016)
[8]
The Lutchmans dispute the signature on the purchase and sale
agreement.
[9]
This is evident having regard to the affidavits filed in case no.
9815/2015 in the matter between the Lutchmans, Lances Chetty,
Omprakash Ramlakhan, Firstrand Bank Ltd, Sheriff, Inanda Area 1 and
the Registrar of Deeds.