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[2015] ZAKZDHC 68
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Naidoo and Others v Arunachallam and Others (4450/2008) [2015] ZAKZDHC 68 (27 August 2015)
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Certain
personal/private details of parties or witnesses have been
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IN
THE HIGH COURT OF SOUTH AFRICA
KWAZULU
NATAL LOCAL DIVISION, DURBAN
CASE
NO.: 4450/2008
DATE:
27 AUGUST 2015
In
the matter between:
VIJAYAKUMARIE
NAIDOO
..............................................................................
FIRST
APPLICANT
SELVAN
NAICKER
..........................................................................................
SECOND
APPLICANT
VASANTHAKUMARIE
MANIKAM
.................................................................
THIRD
APPLICANT
PRABASHNIE
NAICKER
...............................................................................
FOURTH
APPLICANT
ROVANDRIE
NAICKER
.....................................................................................
FIFTH
APPLICANT
KUBENDRAN
NAICKER
...................................................................................
SIXTH
APPLICANT
LOSHNI
NAICKER
.......................................................................................
SEVENTH
APPLICANT
PRAGASEN
NAIDOO
......................................................................................
EIGHTH
APPLICANT
SAMANTHA
NAIDOO
.....................................................................................
NINETH
APPLICANT
KELVIN
NAIDOO
...............................................................................................
TENTH
APPLICANT
KARTHIGASEN
NAIDOO
........................................................................
ELEVENTH
APPLICANT
DELASHNE
MANIKAM
.............................................................................
TWELFTH
APPLICANT
YUGANDRIE
MANIKAM
....................................................................
THIRTEENTH
APPLICANT
NIVENDRAN
MANIKAM
...................................................................
FOURTEENTH
APPLICANT
And
PHILLIP
PARIS
ARUNACHALLAM
.............................................................
FIRST
RESPONDENT
THE
MASTER OF HIGH
COURT,
............................................................
SECOND
RESPONDENT
(NATAL
PROVINCIAL DIVISION )
MOHAMED
YAHYA BAIGA
N.O
..................................................................
THIRD
RESPONDENT
JUDGMENT
CHILI.
J
[1]
The relief sought by the applicants is the rescission of the order
granted by Van Heerden AJ on 16 July 2010 in the following
terms:
1.
That the Deed of Sale concluded between the
Applicant and the First Respondent, annexure “D” to the
founding affidavit,
is a true copy of the written agreement of
purchase and sale and a such is deemed to be a sale that is valid and
enforceable in
respect of the immovable property described as Portion
[5…….] (of 255) of Erf [1…..] [C……],
in extend [2…..] (two hundred and forty nine) square metres
with physical address [1……] [G…..] [A……],
[W…….], [C…….] of the terms and
conditions set out therein.
2.
That the Fourth Respondent do all things
necessary, and take all steps necessary, and sign all documents
necessary, to enable transfer
of the immovable property to be
effected into the name of the Applicant in terms thereof.
3.
That should the
Fourth
Respondent fail and/ or refuse to comply with paragraph 2 hereof
within two (2) days of the grant of this order, the Sheriff
or his
Deputy be and is authorized and directed to do so in place of the 4
th
Respondent.
4.
That the
Third
Respondent be and is hereby authorized and directed, subject to the
provisions of section 42 (2) of Act 66 of 1965, to transfer
the
immovable property into the name of the Applicant in accordance
therewith.
5.
That the costs of this application be paid
from the Estate of the late PURSURAMA NAICKER (Estate number 8………),
such costs to include the costs occasioned by the employment of
Senior Counsel (in respect of the Applicant), and the cost occasioned
by the employment of two Counsel (in respect of the First and Fourth
Respondent.
THE PARTIES
[2]
The First to Third Applicants are children of the late Pursurama
Naicker (the deceased). The
Fourth to the
Fourteenth Applicants are the
deceased’s grandchildren. The deceased died testate
having bequeathed 50 per cent of the
proceeds of the sale of his
fixed property situate at 1….. G….. Avenue, W…..
in C….. (hereinafter ‘the
property’) to the First,
Second and
Third
Applicants and the remaining 50 per cent to his grandchildren, the
Fourth to the Fourteenth Applicants. The deceased
appointed
Raman Naicker as the Executor of his estate. He was later
substituted by Mohamed Yahya Baig, the Third Respondent.
The
First Respondent Phillip Paris
Arunchallam was the applicant in the matter that served before Van
Heerden AJ. No relief is sought
against the Second Respondent.
BRIEF
BACKGROUND
[3]
In an attempt to give effect to the order granted by Van Heerden AJ,
the Third respondent sought written consent from the First
to
Third Applicants (heirs to the
deceased estate) in order to facilitate transfer of the property to
the
First
Respondent, but they refused. On 19 April 2011 the
First
Respondent then approached the court for an order compelling the
First to
Third Applicants to sign a consent
document in compliance with paragraph e of section 42 (2) of the
questionnaire in accordance
with the administration of estates Act 66
of 1965 and also to transfer the immovable property to the First
Respondent in compliance
with Van Heerden’s order. That
application was opposed and affidavits in support thereof were filed
by the First, Second
and the Third Applicants. On the 24
th
May 2013 the First respondent withdrew the application as advised by
Counsel.
[4]
On 6 August 2013 the applicants brought an application couched as
‘semi agent’, seeking an order staying the transfer
of
the property to the First Respondent’s name pending joinder of
the applicants to the proceedings that served before Van
Heerden AJ
and a subsequent application for the rescission of Van Heerden AJ’s
order of 16 July 2010. That application
was withdrawn and the
present application which was served on the First
and Third respondents on the 18
th
and the 30
th
of September 2013 respectively, was instituted.
CONDONATION
[5]
It appears to be common cause that the present application was only
launched approximately three years after the reasons for
the order
granted on 16 July 2010 were served on the applicants’
attorneys.
[1]
For that reason, I
was requested to deal first with condonation for late filling of the
application papers. I pause to mention
that the founding affidavit
relied upon is deposed to by the First Applicant and confirmed by the
Second to the Fourth and the
Seventh to the Fourteenth Applicants.
It is important to refer to the paragraphs in the
founding affidavit that deal
with condonation. In paragraph 50
at page 21of the indexed papers the First Applicant states:
“
I
submit that we
have not delayed in
launching this application as the 1
st
respondent’s attorney had only withdrawn the application
under case no. 4788/2011 (the application to compel us to sign and an
application to join) on the 24
th
May 2013.
We thereafter only
became aware of the 1
st
respondent’s intention to transfer the property into his name
by way of annexure ‘K’”
.
(My emphasis.)
Simply
put, the applicants submit that there has been no delay in bringing
the rescission application because it was brought shortly
after they
received a letter annexure ‘K’.
[6]
Annexure ‘K’ referred to above, is a letter from the
first respondent’s attorneys dated 17 July 2013, addressed
to
the applicants’ attorneys, to the following effect:
‘
In
respect of the above matter, we advise that the Master of the High
Court has endorsed the Power of Attorney to Transfer giving
effect to
the order of court dated 16 July 2010 in terms of which transfer is
to be passed from Estate late P Naicker to PP Arunachallam.
We
are proceeding with the transfer of the above property.’
A
suggestion that the applicants first became aware of the First
Respondent’s intention to transfer the property into his
name
by way of a letter dated 17 July 2013 cannot be true. The First
respondent made his intention to have the property transferred
into
his name very clearly in the application dated 11 April 2011, an
application to compel the First to Third applicants to sign
transfer
documents. A letter dated 17 July 2013 was a continuation of
the process that had commenced as way back as April
2011.
[7]
At page 21 paragraph 51 of the indexed papers, the First applicant
states:
‘
We
then instructed our attorney to launch an urgent application in this
honourable court to stay transfer of the property, pending
the
outcome of this application.’
The
so called ‘urgent application’ the applicants refer to
supra
,
was only made on 06 August 2013, approximately three weeks after the
applicants’ attorneys received a letter informing them
about
the transfer of the property.
[2]
On 08 August 2013 the matter was removed from the roll and the
applicant tendered wasted costs occasioned by the urgent application.
For some strange reason, the applicants seem to be adopting a
view that before bringing the present application, they first
had to
‘await the outcome of all the applications made subsequent to
the order sought to be rescinded, dated 16 July 2010’.
I
am unable to make any sense of that view.
[8]
When Raman Naicker and the Third Respondent opposed the bill of costs
served on them by the First Respondent, they advanced
as their
primary reason to do so, the fact that their intention was to appeal
the order granted on 16 July 2010. They stated in
no uncertain terms,
that an appeal against Van Heerden AJ’s order was
‘inevitable’.
[3]
I
cannot imagine a situation where Raman Naicker and the Third
Respondent would even begin to attend to the bill of costs without
having received instructions to do so from the First to the Third
applicants.
[4]
There
therefore is no merit in a suggestion that the applicants (in
particular the First to the Third applicants) only became
aware of
the existence of the order sought to be rescinded and reasons thereof
after they received a letter annexure ‘K’
some time in
2013.
[9]
I conclude by dealing briefly with an attempt by the applicants to
bring this application under R42 of the Uniform Rules of
this court.
The applicants seemed to be suggesting that when the Third Respondent
filed the opposing affidavit he did so
without their knowledge and
consent. To that end they submitted, that the order sought to
be rescinded was granted in error
in that ‘
they
did not participate in the said proceedings’
.
It is worth noting that at the initial stages of the application
before Van Heerden AJ the Third Respondent was not cited
as a party.
He was only joined in at a later stage when it was brought to the
attention of the First Respondent that the
Third respondent had
substituted Raman Naicker as an executor of the deceased’s
estate. That issue alone, suggests
that the question of
representation of the relevant parties to the proceedings was
carefully scrutinized by Senior Counsel who
appeared on behalf of
Raman Naicker and the Third Respondent in their representative
capacity.
[10]
When the Third Respondent filed the opposing affidavit he clearly did
not proceed on his own accord, but in consultation with
Raman Naicker
and the First to the Third Applicants. The Third Respondent is
not the only person who filed an opposing affidavit.
In support
of his (the Third Respondent’s) affidavit, the First to the
Third Applicants themselves filed confirmatory affidavits.
There is no merit in the First to Third Applicants averment that they
simply signed confirmatory affidavits without knowing what
documents
they placed their signatures on, or without knowledge of the contents
of the opposing affidavit and supporting documents
attached thereto.
A suggestion therefore that they did not participate in the
proceedings before Van Heerden AJ, is rejected as
false. It is
clear in my view, that what the applicants seek to do is to delay
giving effect to the order granted by Van
Heerden AJ on 16 July 2010.
COSTS
[11]
As already pointed out herein before, the only applicants who filed
confirmatory affidavits in the present application are
the Second to
the Fourth and the Seventh to the Fourteenth. For that reason
there is no justification in burdening the Fifth
and the Sixth
Applicants with costs. I am satisfied that a punitive costs
order is justified in the circumstances, given
in particular, the
inexplicable delay on the part of the applicants in bringing this
application and the deliberate misrepresentations
made by applicants.
In
the circumstances, the following order shall issue:
Order:
1.
The application under notice of motion
issued 13/10/2014 is dismissed with costs on an attorney and client
scale basis, such costs
to include the costs of senior counsel.
2.
Costs shall also include the perusal and
consideration of
2.1.
the application papers issued under case
4450/2008 on 04 April 2008;
2.2.
the application papers issued under case
no. 4788/2011 on 19 April 2011; and
2.3.
the application papers issued under case
no. 4450/2008 on 06 August 2013.
3.
The First to the Fourth and the Seventh to
the Fourteenth applicants are ordered to pay the costs of the
application, jointly and
severally, the one paying the other to be
absolved.
Chili.
J
Appearances
Counsel
for the Applicants: Adv. Naidoo
Instructed
by: Arthie Maharaj & Associates
42
Turners Avenue
Berea,
Durban
TEL:
031 307 5100
Counsel
for the Respondents: Adv. Julien SC
Instructed
by: Raman Naicker N.O
c/o
Baig & Company
84
Croftdene Drive
Chatsworth
Date
of hearing: 16 March 2015
Date
of judgment: 27 August 2015
[1]
Van Heerden AJ’s judgment is dated 8 October 2010 and appears
to have been handed down by no later than 12 October 2010.
[2]
Without
any supporting document I am unable to find, as the applicants
allege in their founding affidavit, that they only became
aware one
week after the 17
th
of July 2013 that the first respondent’s intention was to
cause the property to be transferred to his name.
[3]
See para 5 at page 119 of the papers.
[4]
It
is worth noting that the bill of costs was signed by the attorneys
representing Raman Naicker and the third 3
rd
respondent on 17 September 2010.