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[2016] ZAGPPHC 757
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Rayman and Another v Murray N.O and Another (25888/2015) [2016] ZAGPPHC 757 (22 August 2016)
IN
THE HIGH COURT OF SOUTH AFRICA
(GAUTENG
DIVISION, PRETORIA)
REPUBLIC
OF SOUTH AFRICA
CASE
NUMBER: 25888/2015
DATE:
22 AUGUST 2016
In
the matter between:
MUHAMMED
REZA
RAYMAN
...................................................................................
First
Applicant
ALL
OTHER UNLAWFUL OCCUPIERS RESIDING
AT
11B COLIN AVENUE ELDORAIGNE,
CENTURION
....................................
Second
Applicant
THE
CITY OF TSHWANE METROPOLITAN MUNICIPALITY
And
CLOETE
MURRAY
N.O
.............................................................................................
First
Respondent
WELCOME
NORMAN JACOBS
N.O
..................................................................
Second
Respondent
JUDGMENT
IN APPLICATION FOR LEAVE TO APPEAL
BRENNER AJ
1. This is an
application by the first and second applicants for leave to appeal
against my judgment granted on 3 May 2016. On this
date, I granted an
order for the eviction of the first and second applicants, in terms
of the Prevention of Illegal Eviction from
and Unlawful Occupation of
Land Act, 19 of 1998 (“the PiE Act”). The City of
Tshwane, the third respondent in the main
application, did not oppose
the original application.
2. For ease of
reference, in this application for leave to appeal, the first
applicant, Muhammed Reza Rayman, will be referred to
as “Rayman”.
The second applicant includes all other occupiers who occupy the
property in question with Rayman and
will be referred to as “the
occupiers”. The first and second respondents will be referred
to as “Murray”
and “Jacobs” or collectively
as “the trustees” where appropriate. A previous trustee,
who was substituted
by Murray, and who was originally a trustee,
namely, Mathole Serofo Motshekga, will be referred to as “Motshekga”.
3. In essence,
the grounds of appeal pertain to purported procedural irregularities
in the process in which the main application
was prosecuted and
adjudicated.
4. The first
ground of appeal is that I erred in refusing a postponement of the
application pending the outcome of a rescission
application brought
by Rayman and the occupiers to set aside part of an ex parte order
granted by the Honourable Mr Justice Strijdom
on 29 April 2015.
5. On 22 April
2016, four days before the hearing before me, Rayman and the
occupiers served the rescission application, to set
aside paragraph 4
of the ex parte order of 29 April 2015, which gave leave to the
trustees in terms of section 18(3) of the Insolvency
Act, to launch
the eviction application.
6. I placed on
record that I could regard this application as pro non scripto since
it was not before me. Nevertheless, Counsel
for Rayman and the
occupiers addressed oral argument to me concerning the invalidity of
paragraph 4 of the ex parte order, this
because it had allegedly
prevented the first and second applicants from challenging the
trustees’ authority to launch the
application in the first
place. It was argued that they had suffered prejudice as a
consequence. I was more than satisfied that
Rayman and the occupiers
had not proved any basis for prejudice but to the extent to which
they may have suffered same, their avenues
for recourse had not been
exploited by the date of hearing of the main application. I was
driven to the irresistible conclusion
that the rescission
application, launched four days before the hearing, was tantamount to
yet another dilatory tactic and an abuse
of the process of the Court.
7. It is
noteworthy that the ex parte application had been served with the
main application on Rayman and the occupiers on 16 April
2015, before
the hearing thereof some thirteen days later. It was therefore open
to Rayman and the occupiers to oppose the application
prior to the
hearing and to argue their issue with the provisions of section 18(3)
of the Insolvency Act 24 of 1936 (“the
Insolvency Act&rdquo
;).
This they failed to do.
8. Even if the
rescission application had been entertained, its prospects of success
were remote, at best. Moreover, Rayman and
the occupiers had been
aware of the intention to apply for the ex parte order on or shortly
after 16 April 2015, and of the grant
of the ex parte order since May
2015, but had inexplicably failed to launch any rescission
application until shortly before the
hearing of the ejectment
application almost one year after the fact
9. It is further
contended that I erred in finding that the requirements of
section
18(3)
of the
Insolvency Act were
fulfilled when the ex parte order
was granted. The Court which granted this order was so satisfied. It
is a well established precept
of our law that Court orders are
required to be complied with unless set aside.
10.
Section 18(3)
of the
Insolvency Act was
designed to accommodate recourse to
litigation by provisional trustees where appropriate and prior to
their final appointment.
In casu, the provisional trustees bore the
duty to take steps against Rayman and the occupiers as soon as
practically possible
regarding their vacation to facilitate the sale
of the property. It was prudent to attempt to resolve the issues
extracurially,
which they tried to do, to no avail. It was only when
it became apparent that Rayman did not intend to honour his promise
to pay
interim rent that legal steps were instituted in April 2015.
This was in the interests of the concursus creditorum.
11. It merits
mention that, on 22 September 2015, the conduct of the provisional
trustees was ratified in a meeting of creditors.
It also merits
mention that, ex abundante cautela, and even assuming the invalidity
of paragraph 4 of the ex parte order, which
was not conceded, I
exercised my discretion to authorise the launch of the ex parte and
main application, ex post facto.
12. The remaining
ground for leave related to the substitution of one trustee for
another when the final appointment of trustees
was made in the
insolvent estate of Rayman, this in terms of rule 15(2) of the
Uniform Rules of Court. In argument before me, Counsel
for Rayman and
the occupiers was pertinently asked what functions were performed by
the trustees vis a vis the estate of Rayman.
To which he replied that
the trustees took control of Rayman’s estate, including all
assets and liabilities, and that this
occurred in their
representative capacities. In the result, he had to concede that the
applicant in the main application had always
remained the same party,
namely, the insolvent estate as represented by its trustees. I repeat
what is stated at paragraphs 28
to 30 of my judgment.
13. Counsel for
Rayman and the occupiers maintained that the notice attempted to
substitute one legal party for another. This is
a misconception of
the facts. There was no attempt to substitute litigating parties. The
litigating party has remained at all times
the insolvent estate of
Rayman. The identity of one of the trustees of the estate had
changed. Murray was finally appointed as
trustee instead of
Motshekga, who was a provisional trustee. At all times material
hereto, Motshekga and Jacobs represented the
estate of Rayman, qua
provisional trustee, and thereafter, on the final appointment of
trustees, Murray and Jacobs represented
the estate qua final
trustees. Moreover, in terms of
section 76(2)
of the
Insolvency Act,
the
Court may permit substitution in the given circumstances.
14. In terms of
rule 15(4) of the Uniform Rules, and
section 76(2)
of the
Insolvency
Act, I
confirmed the substitution of Murray for Motshekga as joint
final trustee, with Welcome Jacobs, in the insolvent estate of
Rayman.
15. In argument,
Counsel for Rayman and the occupiers asked me to extend the deadline
date for vacation if I found against them
in this application. I have
no jurisdiction to do so, as my role is functus officio.
Nevertheless, as a consequence of the launch
of the application for
leave to appeal, Rayman and the occupiers have been afforded an
effective period approximating four months
within which to vacate the
premises.
16. In the
result, I am of the view that the first and second applicants do not
enjoy a reasonable prospect of success on appeal,
and that leave to
appeal should accordingly be refused, with costs following the
result. My grounds for granting the order on 3
May 2016 are more
fully adumbrated in my written judgment handed down on the same date.
17. The following
order is made:
a. the first and
second applicants’ application for leave to appeal against the
judgment granted on 3 May 2016 is dismissed;
b. the first and
second applicants are directed to pay the costs of the application
jointly and severally.
BRENNER
AJ
ACTING
JUDGE OF THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
22
August 2016
Appearances
Counsel
for the First and Second
Applicants
: Advocate S Hussein-Yousuf
Instructed
by : Mothle Jooma and Sabdia Inc
Counsel
for the First and
Second
Respondents : Advocate J Hershensohn
Instructed
by : Attorneys Attorneys Rorich Wolmarans and Luderitz