Naidoo and Others v Arunachallam and Others (4450/2008) [2015] ZAKZDHC 68 (27 August 2015)

Naidoo and Others v Arunachallam and Others (4450/2008) [2015] ZAKZDHC 68 (27 August 2015)

The court found that the applicants failed to provide a satisfactory explanation for the delay in bringing the rescission application. The evidence showed that the applicants were aware of the proceedings and the order since at least April 2011, and their assertion that they only became aware in July 2013 was rejected as false. The applicants participated in the proceedings before Van Heerden AJ, as demonstrated by their confirmatory affidavits. The court concluded that the application was brought to delay the execution of the prior order and that there was no merit in the grounds advanced for rescission. Accordingly, condonation was refused, and the application was dismissed. Given the...

Citation
[2015] ZAKZDHC 68
Parties
Applicant: Vijayakumarie Naidoo; Applicant: Selvan Naicker; Applicant: Vasanthakumarie Manikam; Applicant: Prabashnie Naicker; Applicant: Rovandrie Naicker; Applicant: Kubendran Naicker; Applicant: Loshni Naicker; Applicant: Pragasen Naidoo; Applicant: Samantha Naidoo; Applicant: Kelvin Naidoo; Applicant: Karthigasen Naidoo; Applicant: Delashne Manikam; Applicant: Yugandrie Manikam; Applicant: Nivendran Manikam; Respondent: Phillip Paris Arunachallam; Respondent: The Master of High Court; Respondent: Mohamed Yahya Baiga N.O.
Court
Kwazulu-Natal High Court, Durban
Jurisdiction
South Africa
Judgment Date
27 August 2015
Case Number
4450/2008
Procedural Posture
Rescission Application / Judgment on Application for Rescission of Prior Order
Outcome
Application for rescission dismissed with costs on an attorney and client scale.
Judges
Chili
Legal Topics
Rescission of Judgment, Condonation, Transfer of Immovable Property, Administration of Estates, Costs Orders
Civil Procedure Land and Property Rescission of Judgment Condonation Transfer of Immovable Property Administration of Estates Costs Orders

Case Brief

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Parties

Vijayakumarie Naidoo

Applicant

Selvan Naicker

Applicant

Vasanthakumarie Manikam

Applicant

Prabashnie Naicker

Applicant

Rovandrie Naicker

Applicant

Kubendran Naicker

Applicant

Loshni Naicker

Applicant

Pragasen Naidoo

Applicant

Samantha Naidoo

Applicant

Kelvin Naidoo

Applicant

Karthigasen Naidoo

Applicant

Delashne Manikam

Applicant

Yugandrie Manikam

Applicant

Nivendran Manikam

Applicant

Phillip Paris Arunachallam

Respondent

The Master of High Court

Respondent

Mohamed Yahya Baiga N.O.

Respondent

Procedural Posture

Rescission Application / Judgment on Application for Rescission of Prior Order

Legal Issues

  1. 1 Whether the applicants have shown sufficient grounds for rescission of the order granted by Van Heerden AJ on 16 July 2010.
  2. 2 Whether condonation for the late filing of the rescission application should be granted.
  3. 3 Whether the applicants participated in the proceedings before Van Heerden AJ and were properly represented.

Ratio Decidendi

The court found that the applicants failed to provide a satisfactory explanation for the delay in bringing the rescission application. The evidence showed that the applicants were aware of the proceedings and the order since at least April 2011, and their assertion that they only became aware in July 2013 was rejected as false. The applicants participated in the proceedings before Van Heerden AJ, as demonstrated by their confirmatory affidavits. The court concluded that the application was brought to delay the execution of the prior order and that there was no merit in the grounds advanced for rescission. Accordingly, condonation was refused, and the application was dismissed. Given the...

Court Disposition

Application for rescission dismissed with costs on an attorney and client scale.

Orders

  • 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.
  • Costs shall also include the perusal and consideration of the application papers issued under case 4450/2008 on 04 April 2008; the application papers issued under case no. 4788/2011 on 19 April 2011; and the application papers issued under case no. 4450/2008 on 06 August 2013.