Rayman and Another v Murray N.O and Another (25888/2015) [2016] ZAGPPHC 757 (22 August 2016)

Rayman and Another v Murray N.O and Another (25888/2015) [2016] ZAGPPHC 757 (22 August 2016)

The court found that the applicants failed to demonstrate any prejudice resulting from the ex parte order, and that their rescission application was launched as a delaying tactic. The requirements of section 18(3) of the Insolvency Act were satisfied, and the conduct of the provisional trustees was ratified by the creditors. The substitution of trustees did not alter the identity of the litigating party, which remained the insolvent estate of Rayman. The applicants had no reasonable prospects of success on appeal, and the application for leave to appeal was dismissed with costs.

Citation
[2016] ZAGPPHC 757
Parties
Applicant: Muhammed Reza Rayman; Applicant: All Other Unlawful Occupiers residing at 11B Colin Avenue Eldoraigne, Centurion; Respondent: Cloete Murray N.O; Respondent: Welcome Norman Jacobs N.O
Court
North Gauteng High Court, Pretoria
Jurisdiction
South Africa
Judgment Date
22 August 2016
Case Number
25888/2015
Procedural Posture
Leave to Appeal / Application for Leave to Appeal Following Eviction Order
Outcome
Application for leave to appeal dismissed with costs.
Judges
Brenner
Legal Topics
Leave to Appeal, Eviction, Unlawful Occupation, Substitution of Trustees, Insolvency Act Section 18 3
Civil Procedure Land and Property Leave to Appeal Eviction Unlawful Occupation Substitution of Trustees Insolvency Act Section 18 3

Case Brief

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Parties

Muhammed Reza Rayman

Applicant

All Other Unlawful Occupiers residing at 11B Colin Avenue Eldoraigne, Centurion

Applicant

Cloete Murray N.O

Respondent

Welcome Norman Jacobs N.O

Respondent

Procedural Posture

Leave to Appeal / Application for Leave to Appeal Following Eviction Order

Legal Issues

  1. 1 Whether the refusal to postpone the eviction application pending the outcome of a rescission application was correct.
  2. 2 Whether the requirements of section 18(3) of the Insolvency Act were fulfilled when the ex parte order was granted.
  3. 3 Whether the substitution of trustees constituted a substitution of legal parties.

Ratio Decidendi

The court found that the applicants failed to demonstrate any prejudice resulting from the ex parte order, and that their rescission application was launched as a delaying tactic. The requirements of section 18(3) of the Insolvency Act were satisfied, and the conduct of the provisional trustees was ratified by the creditors. The substitution of trustees did not alter the identity of the litigating party, which remained the insolvent estate of Rayman. The applicants had no reasonable prospects of success on appeal, and the application for leave to appeal was dismissed with costs.

Court Disposition

Application for leave to appeal dismissed with costs.

Orders

  • The first and second applicants’ application for leave to appeal against the judgment granted on 3 May 2016 is dismissed.
  • The first and second applicants are directed to pay the costs of the application jointly and severally.