Gopaul v Lutchman
| Jurisdiction | South Africa |
| Judge | Henriques J |
| Judgment Date | 17 May 2019 |
| Docket Number | 13185/2016D |
| Court | KwaZulu-Natal Division, Durban |
| Hearing Date | 28 June 2018 |
| Citation | 2019 JDR 0903 (KZD) |
Henriques J:
Introduction
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.
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.
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
The grounds of appeal as set out in the application for leave to appeal are the following:
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.
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.
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
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provincial (sic) judgment was dismissed in default of the Respondents' Attorneys not attending to the matter.
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.
The Court ought to have taken the Respondents Chapter Two of the Constitution of South Africa civil, political and socio-economic rights into consideration.
The Court erred in not taking into consideration and enforcing the Respondents' rights in terms of section 24 of the Constitution.
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.
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.
The Court erred in dismissing the application to stay the eviction proceedings.
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]
The Lutchmans submit that another court might come to a different conclusion in the above matter.
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.
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
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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.
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.
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.
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.
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,
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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
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.
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.
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.
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
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served personally via sheriff on the Lutchmans.
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.
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.'
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...
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