Gopaul and Another v Lutchman and Others (13185/2016D) [2019] ZAKZDHC 5 (17 May 2019)

Gopaul and Another v Lutchman and Others (13185/2016D) [2019] ZAKZDHC 5 (17 May 2019)

The court granted condonation for the late filing of the application for leave to appeal as a pragmatic measure, given the history of delays and non-cooperation by the respondents and their attorneys. However, after reviewing the grounds of appeal, the court found that the respondents failed to provide a reasonable explanation for their delay in instituting a rescission application and had consistently blamed their attorneys without taking responsibility. The court held that the application for leave to appeal had no reasonable prospects of success, as the respondents were not bona fide in their conduct and the underlying facts did not support their claims of fraud or arbitrary...

Citation
[2019] ZAKZDHC 5
Parties
Applicant: Vishal Gopaul; Applicant: Shelena Gopaul; Respondent: Aroogmugan Lutchman; Respondent: Gladys Lutchman; Respondent: Ethekwini Municipality
Court
Kwazulu-Natal High Court, Durban
Jurisdiction
South Africa
Judgment Date
17 May 2019
Case Number
13185/2016D
Procedural Posture
Leave to Appeal / Application for Leave to Appeal Following Eviction Order and Dismissal of Stay Application
Outcome
Application for leave to appeal dismissed with costs. Condonation for late filing granted. Application in terms of section 18 adjourned sine die. Previous order suspending eviction lapsed.
Judges
Henriques
Legal Topics
Leave to Appeal, Eviction Proceedings, Rescission of Judgment, Condonation, Fraudulent Transfer, Arbitrary Deprivation of Property
Civil Procedure Land and Property Leave to Appeal Eviction Proceedings Rescission of Judgment Condonation Fraudulent Transfer Arbitrary Deprivation of Property

Case Brief

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Parties

Vishal Gopaul

Applicant

Shelena Gopaul

Applicant

Aroogmugan Lutchman

Respondent

Gladys Lutchman

Respondent

Ethekwini Municipality

Respondent

Procedural Posture

Leave to Appeal / Application for Leave to Appeal Following Eviction Order and Dismissal of Stay Application

Legal Issues

  1. 1 Whether condonation should be granted for the late filing of the application for leave to appeal.
  2. 2 Whether the application for leave to appeal has reasonable prospects of success under section 17(1) of the Superior Courts Act.
  3. 3 Whether the respondents were deprived of property arbitrarily and whether allegations of fraud warranted further investigation.

Ratio Decidendi

The court granted condonation for the late filing of the application for leave to appeal as a pragmatic measure, given the history of delays and non-cooperation by the respondents and their attorneys. However, after reviewing the grounds of appeal, the court found that the respondents failed to provide a reasonable explanation for their delay in instituting a rescission application and had consistently blamed their attorneys without taking responsibility. The court held that the application for leave to appeal had no reasonable prospects of success, as the respondents were not bona fide in their conduct and the underlying facts did not support their claims of fraud or arbitrary...

Court Disposition

Application for leave to appeal dismissed with costs. Condonation for late filing granted. Application in terms of section 18 adjourned sine die. Previous order suspending eviction lapsed.

Orders

  • Condonation is granted to the first and second respondents for the late noting of the application for leave to appeal.
  • The application for leave to appeal is dismissed with costs.