REPUBLIC OF SOUTH AFRICA

IN THE HIGH COURT OF SOUTH AFRICA

GAUTENG LOCAL DIVISION, JOHANNESBURG

CASE NO: 24711/1996

(1) REPORTABLE: YES

(2) OF INTEREST TO OTHER JUDGES: YES
(3) REVISED.

…………..…………............. ……………………
SIGNATURE DATE

In the matter between:

EXPORT DEVELOPMENT CANADA First Applicant

STONERIVER MSM 9631 AIRCRAFT Second Applicant

DESIGNATED ACTIVITY COMPANY

and

WESTDAWN INVESTMENTS PROPRIETARY First Respondent

LIMITED

OAKBAY INVESTMENTS PROPRIETARY Second Respondent

LIMITED

ATUL KUMAR GUPTA Third Respondent

CHETALI GUPTA Fourth Respondent

SOUTH AFRICAN CIVIL AVIATION AUTHORITY Fifth Respondent

NATIONAL PROSECUTING AUTHORITY Sixth Respondent

________________________________________________________________

JUDGMENT

KATHREE-SETIOLANE

[1] This application concerns the grounding, return and storage of a

Bombardier Global 6000 aircraft with registration mark ZS-OAK (“the

Aircraft”) that is registered in South Africa. The Aircraft is owned by the

second applicant, Stone River MSN 9631 Aircraft Designated Activity

Company (“Stone River”), which has its principal place of business in Dublin,

Ireland. Stoneriver leased the Aircraft to the first respondent, Westdawn

Investments Propriety Limited (“Westdawn”), in terms of an aircraft lease

agreement (“the Lease Agreement”). Westdawn is part of the Gupta group of

companies.

[2] The first applicant, Export Developments Canada (“EDC”), provided

Stoneriver with the funding to purchase the Aircraft. EDC is a state owned

enterprise wholly owned by the Government of Canada. Its principal place of

business is in Ottawa, Canada. The funding arrangements are regulated by a

facility agreement (“the Facility Agreement”) concluded between EDC,

 Stoneriver and the second respondent, Oakbay Investments Propriety Limited

(“Oakbay”), which is also part of the Gupta group of companies. Stoneriver is

required, under the Facility Agreement, to make quarterly repayments of the

loan amount to EDC using the rental it receives from Westdawn.

[3] Oakbay is the corporate guarantor for the repayment of the loan under

the Facility Agreement. The third and fourth respondents, namely Mr Atul

Gupta and his wife Mrs Chetali Gupta (Mr and Mrs Gupta), are the personal

guarantors. Oakbay is one of the main operating companies in the Gupta

group. Oakbay controls Westdawn, and Westdawn is controlled by Mr Atul

Gupta and Mrs Chetali Gupta.

[4] To manage and secure the applicants’ rights arising from the

transaction, the Facility and Lease Agreements contained numerous rights of

security and triggers which would constitute events of default, entitling the

applicants to terminate the leasing arrangement and take possession of the

Aircraft. In other words, each of the events of default under the two

agreements constitute a repudiation of such agreements. The applicants

allege that more than a dozen events of default had come to their attention

between October 2017 and December 2017, as a result of which Westdawn,

Oakbay and Mr and Mrs Gupta (“the Gupta respondents”) were in breach of

the Lease Agreement and the Facility Agreement. The applicants

accordingly accepted the repudiation and terminated the leasing of the

Aircraft on 13 December 2017. In their notice to terminate the leasing of the

Aircraft, the applicants instructed Westdawn to redeliver the Aircraft to

Stoneriver. Westdawn failed to comply with the December notice and the
 Aircraft was not returned to Stoneriver. It, however, launched an action in the

English Courts challenging the lawfulness of the cancellation of the two

agreements. The action is currently pending in the English courts under claim

number BL-2017-000642 (“the English proceedings”).

[5] The applicants seek, pending the final determination of the English

proceedings, an interim interdict to have the Aircraft grounded and returned

to a safe location to be stored. The applicants will bear the costs of storage

and no party will have the right to operate or dispose of the Aircraft during the

operation of the interim interdict.

Urgency

[6] The applicants brought this application as an urgent application set

down for hearing in the urgent court on 6 March 2017. By agreement

between the parties the Deputy Judge President of this Division case

managed the matter. It was allocated to me for hearing as a one day special

allocation to be heard on 9 March 2018. In the interest of completing the

matter in a day, I enrolled the matter on my role and heard argument on the

question of urgency and the merits together. This notwithstanding, urgency

remained an issue and the applicants were required to demonstrate that they

were justified in setting the matter down for hearing in the urgent court.

[7] The purpose of urgent proceedings is to enable a court to come to the

assistance of a litigant in circumstances where the litigant will be unable to

 obtain relief in the ordinary course.1 The question whether a matter is

sufficiently urgent to be enrolled and heard as an urgent application is

underpinned by the issue of absence of substantial redress in an application

in due course. In East Rock Trading 7 (Pty) Ltd and Another v Eagle Valley

Granite (Pty) Ltd and Others1 (quoted with approval by Wepener J in In re:

Several Matters on the Urgent Court Roll),2 Notshe AJ held:

“It is important to note that the rules require absence of substantial redress.

This is not equivalent to the irreparable harm that is required before the

granting of interim relief. It is something less. He may still obtain redress in

an application in due course but it may not be substantial. Whether an

applicant will not be able to obtain substantial redress in an application in

due course will be determined by the facts of each case. An applicant must

make out his case in that regard.”

[8] Urgency is decided by reference to the applicants' papers alone.3

Nowhere in their founding papers do the applicants pertinently allege that

they will not be able to obtain substantial redress in due course. The Gupta

respondents latch onto this omission contending that the applicants’ failure to

make this allegation in their founding papers indicates that they can get

substantial redress in another court (in this case the English Courts) in due

course, since they intend to defend the pending action there. They contend

that should the English proceedings be subsequently decided against the

1
East Rock Trading 7 (Pty) Ltd v Eagle Valley Granite (Pty) Ltd [2011] ZAGPJHC 196 para 6.

2
In re: Several Matters on the Urgent Court Roll 2013 (1) SA 549 (GSJ) para 7
3
Twentieth Century Fox Film Corporation and Another v Anthony Black Films (Pty) Ltd 1982 (3) SA
582 (W) at 586G.
 applicants, the Aircraft would have to be returned to Westdawn. In addition,

they point out that the applicants intend to file a counterclaim before the

English Courts for the permanent return of the aircraft. This, so the

contention goes, confirms that on the applicants’ own understanding of the

facts - adequate redress in due course is at their disposal. The respondents

accordingly contend that the matter be struck from the roll for lack of urgency.

[9] The “formulaic recitation” by an applicant, in its founding papers in an

urgent application, of the phrase “will not otherwise be afforded substantial

redress in due course” that appears in rule 6(12)(b) of the Uniform Rules will

not, if unsupported by the facts, entitle the application to be enrolled and

dealt with as one of urgency. Likewise, where the applicant omits to

pertinently include this phrase in its founding papers, but from an

examination of the facts it is clear that the applicant will not be able to obtain

substantial redress in an application in due course if the matter is not dealt

with on an urgent basis, then its failure to recite the phrase in question is

immaterial, because whether or not the applicant is in a position to obtain

substantial redress in due course can only be determined after giving

consideration to the particular facts and circumstances of a particular case.

[10] The facts in the current matter make it abundantly clear that unless

their matter is enrolled for hearing and dealt with in the urgent court, they will

be unable to obtain substantial redress in an application in due course in

another court – whether inside or outside the country. The applicants have

terminated the leasing of the Aircraft. If it were to be found in the English

 proceedings that the termination of the leasing was lawful, the applicants

would be entitled to the return of the Aircraft in the condition it was in when

the termination occurred, since the Gupta respondents would not have been

entitled to use the Aircraft thereafter.4

[11] In the nature of things, the condition of the Aircraft will deteriorate if

the Gupta respondents continue to use it. Where an applicant for interim

relief is the owner of the assets that are sought to be recovered, our courts

have held that “there is a de facto presumption that the applicant will suffer

irreparable harm if the interdict is not granted, until the contrary is shown”.5

That is precisely the case here.

[12] The risk of damage to the Aircraft is reinforced by the fact that the

applicants were party to a multiparty agreement with Execujet, the operator

of the Aircraft, that afforded them various rights against it. Execujet

terminated the contract in order to protect itself against reputational damage

of being associated with Westdawn, which is owned by the Gupta family (and

Oakbay and Mr Atul Gupta) who have been embroiled in high profile media

matters of corruption and state capture in the recent past. Consequently, the

applicants have no contractual nexus with the new operator that has

apparently replaced Execujet.

[13] The risk of damage to the Aircraft is further reinforced by events that

4
BW (Diesel Distributors) Pty Ltd v Chivell 1955 (1) SA 624 (N) at 625.
5
Dorbyl Vehicle Tracking and Finance Co (Pty) Ltd v Northern Cape Tour and Charter Service CC [2001] 1
All SA 118 (NC) para 16.14. See also SA Taxi Securitisation (Pty) Ltd v Chesane 2010 (6) SA 557 (GSJ) para
30.
 occurred in February this year. The most significant of these is that

subsequent to the applicants’ request for information on the Aircrafts’ location

on 4 February 2018, Westdawn switched off its public tracking device of the

Aircraft. This, as explained by the applicants on its papers, has created an

extraordinary situation in which the applicants are deprived of any ability to

locate the whereabouts of the Aircraft that EDC has financed and Stoneriver

owns.

[14] As is apparent from a letter received from Westdawn’s English

solictors (Jones Day) dated 5 February 2017,the Aircraft had travelled to

Dubai and India in that week and was located at the Indira Gandhi Airport in

Delhi. They were, however, instructed that the Aircraft would be in further use

in that week. What is clear from this is that the Aircraft is being used by the

Gupta respondents to fly to unknown destinations, which is not denied by

them. This increases the risk of it being damaged.

Risk of forfeiture

[15] There is crucially also a risk of forfeiture of the Aircraft under the

Prevention of Organised Crime Act 121 of 1998 (“POCA”). Although the

Gupta respondents say that the switching off of the tracking device “is not

unreasonable” as the applicants have been advised by Jones Daly of the

whereabouts of the Aircraft (which is not correct), the only explanation they

offer for their conduct is that “the applicants’ express intention is to take

possession of the aircraft”. But this explanation does not bear scrutiny since
 the applicants have never suggested that they intend to resort to extra-curial

means in order to take possession of the Aircraft. A more obvious

explanation is that the Gupta respondents switched off the public tracking

device so that nobody will be able to ascertain the whereabouts of the

Aircraft.

[16] This begs the question: Why would the Gupta respondents not want

anyone to track the whereabouts of the Aircraft? This makes for the pungent

possibility that this was done so that the Aircraft can be used for unlawful

purposes. Although the Gupta respondents dismiss this as “baseless

speculation that [does] not warrant a response”, they conspicuously do not

say that the Aircraft is not being used for unlawful purposes and they do not

give an undertaking that the Aircraft will not be used for unlawful purposes in

the future. Since the Gupta respondents must know whether the Aircraft is

being used (or will be used) for unlawful purposes, they cannot abdicate

responsibility by saying that “the applicants have no evidence that the aircraft

is being used in any illegal activity”.

[17] What is clear from all of this is that there is a increased risk that the

Aircraft may be forfeited under POCA with the result that applicants would be

deprived of their financial interest in the Aircraft. Significantly, in their

answering affidavit, the Gupta respondents say that “the fact that the facility

and lease agreements may have been concluded at the same time [as the

Estina dairy project] and that monies may have been paid to the applicants

thereafter is not itself proof that the respondents were paid using the
 proceeds of crime”. However, the Gupta respondents do not make a positive

allegation that the payments made to Stoneriver under the Lease

Agreement did not derive from the proceeds of crime. Moreover, the

answering affidavit does not contain a positive allegation that the Aircraft has

not been used for unlawful purposes (or will not be used for unlawful

purposes).

[18] The civil forfeiture regime in chapter 6 of POCA allows for property to

be forfeited to the state if it is the instrumentality of an offence referred to in

Schedule 1 or if it is the proceeds of unlawful activities. If property is forfeited

under chapter 6 of POCA, the order operates in rem and affects all parties

who have an interest in the property. The remedy of an “innocent owner” is to

apply for his or her interest in the property to be excluded from the forfeiture

order. In order to do so, however, the “innocent owner” has to show:

(a) that he or she neither knew nor had reasonable grounds to suspect

that property is the proceeds of unlawful activities; or

(b) that he or she neither knew nor had reasonable grounds to suspect

that property is the instrumentality of an offence and has taken all

reasonable steps to prevent the use of the property as an

instrumentality of an offence.

[19] Should the National Director of Public Prosecutions apply to have the

Aircraft forfeited in terms of chapter 6 of POCA, the applicants would need to

rely on the “innocent owner” defence in order to have their interest excluded
 from the forfeiture order. However, the applicants may well be deprived of

their ability to rely on this defence unless interim relief is granted as a matter

of urgency. Simply put, the applicants face an increasing risk that they may

be deprived of their interest in the Aircraft unless interim relief is granted.

Reputational harm

[20] If interim relief is not granted, the applicants will suffer reputational

harm by virtue of being associated with the Gupta respondents through their

continued use of the Aircraft. The applicants have explained, with

considerable understatement, why they do not wish to follow in the footsteps

of Bell Pottinger, KPMG South Africa or HSBC. The Constitutional Court has

held that harm “connotes a common-sensical, discernible or intelligible

disadvantage or peril that is capable of legal protection”. 6 It follows from this

that the applicants will suffer such harm if interim relief is not granted and if

they succeed in the English proceedings. The harm will be irreparable since

“the effects or consequences cannot be reversed or undone”.7 While I accept

that irreparable harm does not equate to substantial redress as contemplated

in Rule 6(12)(b), as substantial redress is something less, where a an

applicant in an urgent application is able to demonstrate on its papers that it

will suffer irreparable harm if an interim interdict is not granted, that would

suffice to meet the threshold of the absence of substantial redress that is

required for an urgent hearing.

[21] In the circumstances, I am satisfied that the applicants have

6
Tshwane City v Afriforum 2016 (6) SA 279 (CC) para 56.
7
Tshwane City v Afriforum at para 57.
 demonstrated on their founding papers that the matter is urgent as they are

unable to obtain substantial redress at a hearing in due course in either this

Court or the English Courts.

The urgency is not self-created

[22] The Gupta respondents contend that the urgency is self-created by the

applicants because at the time of the December notice it was, as it is now,

not in possession of the aircraft, yet applicants did nothing to recover the

possession of the aircraft until 15 February 2018. It waited 2 months.

[23] They furthermore contend that the applicants’ reliance on the “January

breaches” is similarly no good, since those breaches occurred in December

2017 and January 2018. It is hard to believe that given the publicity the

applicants are only too well aware of that these events only came to its

attention in February 2018. They say that if this is to be believed, then it

underscores the fact that the applicants’ urgency is self-created as they

effectively ask this Court to give them relief in circumstances where they

were not diligent in monitoring their counterparties acting sooner than

February 2018 when they ought to have been aware of the events of breach.

[24] The furthermore contend that the applicants admit that the true

motivation for them recently having kicked into high-gear is on account of the

“recent” adverse media coverage that has been directed at the respondents,

and which it clearly seeks to escape by distancing itself from the

respondents. It is notable, they contend, that throughout this relationship, and

 until the letter of 2 February 2018, the applicants have enjoyed the financial

benefits of their commercial relationship with the respondents – for prolonged

periods during which the respondents received the same adverse media

coverage.

[25] The applicants contend that the contention of self-created urgency is

unfounded as it impermissibly conflate the facts giving rise to the termination

of the leasing of the Aircraft with the events supporting the urgent interdictory

relief the applicants now seek. They state in this regard that they became

aware of the relevant events of default in December 2017 and subsequently

sent the December notice to Westdawn, terminating the leasing of the

Aircraft. They say the contention that they should have filed their urgent

application immediately after the December notice is without merit as they

had terminated the leasing of the Aircraft and called for its return as they are

permitted to do under the agreements. At that stage, they say that they were

entitled to assume that Westdawn would comply with its obligations upon

termination. Westdawn, however, decided to institute the English

proceedings to challenge the termination.

[26] The Applicant’s demonstrate further that critical events then came to

the applicants' attention in January 2018, including the Eskom proceedings

(which, amongst others the Helen Suzman Foundation instituted against the

Gupta respondents for the repayment of almost R7 billion rands that they

purportedly stole from Eskom) and the POCA proceedings. The applicants

sent a termination notice on 25 January 2018 and again sought the redelivery
 of the Aircraft. They afforded Westdawn an opportunity to ensure the safe

return of the Aircraft, providing two business days in which to confirm the

process was underway. Westdawn then gave notice of its refusal to comply

with the request on 29 January 2018.

[27] As correctly contended for on behalf of the applicants, their attempts,

in the course of January, to avoid having to bring an urgent application before

this Court, should not be a ground for refusing to regard the matter as urgent.

Where an applicant first seeks compliance from the respondent before

lodging an urgent application, it cannot be said that the applicant had been

dilatory in bringing the application or that urgency was self- created.

[28] A delay in instituting urgent proceedings is not, on its own, a ground

for refusing to enroll a matter in the urgent court. The question remains

whether the applicant can be afforded substantial redress at a hearing in due

course.8 The application was launched on 15 February 2018 after the

following events had occurred:

(a) On 18 January 2018, the National Director of Public Prosecutions was

granted a preservation order over assets of three of the Gupta

respondents on that basis that they constituted proceeds of crime.

There were media reports suggesting that part of the funds used by

the Gupta respondents to make the initial contribution towards the

purchase of the Aircraft were also proceeds of crime.

8
East Rock Trading 7 (Pty) Ltd v Eagle Valley Granite (Pty) Ltd [2011] ZAGPJHC 196 para 8.
 (b) On 4 February 2018, following the applicants’ request for information

on the location and condition of the Aircraft, the public tracker of the

Aircraft was switched off. The current location of the Aircraft is

unknown to the applicants.

(c) The Gupta respondents’ response on 5 February 2018 to the

applicants’ request for information on the condition and maintenance

of the Aircraft was wholly inadequate.

(d) On 12 February 2018, the South African Reserve Bank confirmed that

the Bank of Baroda intended to leave South Africa (largely as a result

of the Gupta scandals).

(e) On 14 February 2018 the DPCI raided the Gupta residence in

Saxonwold.

[29] In the course of the above events, it became clear to the Applicants

that urgent relief was needed or the applicants would not obtain redress in

due course. This according to the applicants is when the “allegations of

turpitude and impropriety crystallised” and a reasonable apprehension of

substantial and potentially irreparable harm arose and this application was

drawn and launched without delay on 15 February 2018. The applicants point

out that following the launching of this application, further events have come

to light that bolstered the urgency of this matter.

[30] These included that eight companies that are directly or indirectly

owned by the Gupta respondents have been placed into business rescue

pointing to a crumbling business empire. In addition to that, as a result of the

raids and criminal proceedings, several members of the Gupta family are on

the run. The brother of Mr Atul Gupta has been declared a fugitive and

officers of Westdawn and Oakbaythe first and second respondents (including

the deponent to the answering affidavit) have appeared in the criminal courts
 Urgency under the Cape Town Convention

[31] The Cape Town Convention supports the expeditious hearing of this

matter. Article 13(1) of the Convention provides as follows:

"Subject to any declaration that it may make under Article 55, a Contracting State

shall ensure that a creditor who adduces evidence of default by the debtor may,

pending final determination of its claim and to the extent that the debtor has at any

time so agreed, obtain from a court speedy relief in the form of such one or more of

the following orders as the creditor requests:

(a) preservation of the object and its value;

(b) possession, control or custody of the object;

(c) immobilisation of the object; and

(d) lease or, except where covered by sub-paragraphs (a) to (c), management of

the object and the income therefrom.” (our underlining)

[32] Article X of the Protocol to that Convention (which South Africa has,

under its Declarations in respect of the Protocol, agreed to apply in its

entirety) added article 13(1)(e) to the Convention in the following terms: "(e) if

at any time the debtor and the creditor specifically agree, sale and application

of proceeds therefrom". It also states that "speedy" under article 13(1) means

"within such number of working days from the date of filing of the application

for relief as is specified in [South Africa's] declaration."

[33] South Africa's declaration states that the time period is no longer than

10 calendar days in relation to the remedies set forth in Articles 13(1)(a)-(c)

and not longer than 30 calendar days in respect of the remedies in Articles

13(1)(d) and (e).153 South Africa has thus undertaken to have the matters
 which are the subject of this application heard and decided urgently and

within a matter of days.

[34] The fact that the applicants have elected to defend the English

proceedings and intend to counterclaim for the permanent redelivery of the

Aircraft is no bar to the applicants seeking urgent interim relief in this Court

for the redelivery of the Aircraft to the applicants pending the final

determination of the those proceedings.

[35] The Gupta respondents do not, in any event, allege that they are

prejudiced by the attenuated timelines afforded to them by the applicants in

defending this application. They were afforded seven court days to answer

the present application. They filed their answering affidavit one day late and

therefore utilised eight court days. They filed a full answering affidavit (71

pages excluding annexures) and do not seriously allege that they were

prejudiced in their ability to do so. Moreover, the applicants had given them

far

[36] more notice of these proceedings than was requested by Westdawn ‘s

English solicitors in the letter dated 5 February 2018, where they wrote as

follows:

 
“Should your client [EDC] or Stoneriver intend to take enforcement steps in

respect of the Aircraft outside of the existing English proceedings, or

otherwise take action to limit the movement of the Aircraft, such steps or

action will be vigorously defended and our client [Westdawn] requires 5

business days’ notice of your intention to do so, in order that appropriate

 steps can be taken and so that our client has an adequate opportunity to

appear at any related hearing.”

[37] For these reasons, I am satisfied that the applicants were justified in

setting the matter down on an urgent basis as they will be unable to obtain

substantial redress at a hearing in due course.

The question of this Court’s jurisdiction

[38] The Gupta respondents do not submit to the jurisdiction of this Court.

They contend that their entitlement not to do so arises from both the Facility

and the Lease Agreements which accord exclusive jurisdiction to the Court of

England and Wales.

[39] This contention is without foundation since section 21(1) of the

Superior Courts Act 10 of 2013 provides that this Court has jurisdiction over

“all persons residing or being in … its area of jurisdiction”. Westdawn is a

company incorporated in South Africa. It has its registered office and its

principal place of business in Sandton.7 This Court therefore has jurisdiction

over it.8

[40] Oakbay is likewise a company incorporated in South Africa. It has its

registered office and its principal place of business in Sandton. This Court

therefore has jurisdiction over it.9 Mr Atul and Mrs Chetali Gupta reside in

Saxonwold. This Court therefore has jurisdiction over them.

9
See: Bisonboard Ltd v Braun Woodworking Machinery (Pty) Ltd 1991 1 SA 482 (A);Mayne v Mayne
2001 (2) SA 1239 (SCA) para 3
 [41] The Aircraft is registered in South Africa. The Lease Agreement

requires the Aircraft to remain registered with the Aviation Authority of the

State of Registration for the duration of the lease. The State of Registration

under the lease agreement is the Republic of South Africa and the Aviation

Authority is the fifth respondent.

[42] This Court therefore has jurisdiction in this application.

An order of this Court would be effective

[43] This notwithstanding, the Gupta respondents persist in the contention

that that this Court is deprived of jurisdiction because any order it gives would

not be effective. This very contention was rejected by the SCA in Metlika

Trading Ltd v Commissioner, South African Revenue Service10 on almost

identical facts. There the SCA was faced with the question as to whether the

Pretoria High Court had jurisdiction to order a party to take steps to procure

the return of an aircraft to South Africa. As in the present matter, the aircraft

had been flown out of South Africa at the time the order was sought. The

party ordered to return the aircraft argued that the court a quo had no

jurisdiction to order that the aircraft be returned to South Africa first, because

such an order infringed the sovereignty of the foreign country concerned and

second, because the court a quo would be unable to give effect to its order.

10
Metlika Trading Ltd v Commissioner, South African Revenue Service 2005 3 SA 1 (SCA)
 Streicher JA summarized to two opposing views on this :

“Pollack accepts that Lenders reflects our law as regards foreign jurisdictions,
ie that the mere fact that a respondent is an incola of the court is insufficient
to confer jurisdiction on the court to make an order for delivery or movable
property situate outside the Republic. Forsyth, Private International Law 4th
ed at 233, on the other hand, is of the view that ‘if the respondent is an
incola, the court may assume jurisdiction to grant an interdict (whether
mandatory or prohibitory) no matter if the act in question is to be performed or
restrained outside the court’s area’. He argues that if ‘the respondent is an
incola…the court will have control over him and will be in a position to
ensure compliance with its order’.”

[44] After considering the development of English case law and the

judgment of Hugo v Wessels11, Streicher JA held as follows:

“In the light of the aforegoing, I agree with Forsyth’s view that, if the

respondent is an incola, the Court may assume jurisdiction to grant an

interdict (whether mandatory or prohibitory) in personam no matter if the act

in question is to be performed or restrained outside the Court’s area of

jurisdiction. The authority to the contrary is not persuasive and should, to

the extent not consistent with this judgment, be considered to be overruled.”

(our underlining)

[45] Streicher JA noted that the aircraft was registered in South Africa in the

name of an incola company (“HAS”) that was the operations manager of the

aircraft and a partner in the new partnership that owned the aircraft.21 He

held that it was “clearly within the power of the new partnership and HAS to

procure the return of the aircraft to the Republic,” and went on to hold as

11
Hugo v Wessels 1987 (3) SA 837 (A) at 855J-856A
 follows:

“…The order could be enforced by contempt of Court proceedings against the

directors of HAS. The availability of that remedy, in the event of a failure by

HAS to comply with the order, rendered the order sufficiently effective to confer

jurisdiction on the Court a quo to grant the order.”

[46] The order does not affect the sovereignty of a foreign court at all. It is

an order in personam against respondents subject to the Court’s jurisdiction

and not against third parties. It will, if not complied with, be enforced in South

Africa against the respondents concerned. …”

[47] In the present case, Westdawn is an incola of this Court and the

applicants seek an order directing Westdawn to deliver the Aircraft either to

the United Kingdom or to South Africa. It is plainly in Westdawn’s power to

procure the return of the Aircraft as it is still in use and Westdawn has, since

the termination notices were delivered, continued to fly it to various

international destinations. If Westdawn does not comply with this Court’s

order, then the order could be enforced by contempt of Court proceedings

against the directors of Westdawn.

[48] The applicants also seek a prohibitory interdict in respect of the Gupta

respondents. Since the Gupta respondents are all incolae of this Court,

contempt of court proceedings could be instituted if any of them fail to adhere

to the order. Such proceedings could be launched against the directors of

Westdawn and Oakbay and against Mr and Mrs Gupta personally.

 [49] The Cape Town Agreement,12 which has been domesticated through

the Convention on International Interests in Mobile Equipment Act 4 of 2007,

specifically contemplates the grounding of the Aircraft in a foreign jurisdiction.

South Africa and the various countries to which the Aircraft has been flown in

the previous months are all parties to the Cape Town Agreement.

Forum non conveniens

[50] The Gupta respondents furthermore contend that this Court must

decline to exercise jurisdiction as it is not the forum conveniens. There is no

merit in this contention since it does not reflect our law. The SCA summarised

the legal position in Agri Wire:13

[51] “Save in admiralty matters, our law does not recognise the doctrine of

forum non-conveniens, and our courts are not entitled to decline to hear cases

properly brought before them in the exercise of their jurisdiction.”

[52] This matter has been properly brought before this Court on the basis of

the respondents’ domicilia. This Court does not have the discretion to decline

to exercise jurisdiction on the basis that the English court is alleged to be

better suited to hear the matter.

The agreements do not exclude the jurisdiction of this Court

12
The Convention on International Interests In Mobile Equipment (signed on 16 November 2001)
as supported by the Protocol to the Convention on International Interests in Mobile Equipment on
matters specific to aircraft equipment (signed on 16 November 2001)

13
Agri Wire (Pty) Ltd v Commissioner, Competition Commission 2013 (5) SA 484 (SCA) para 19. See
also Makhanya v University of Zululand 2010 1 SA 62 (SCA) para 34.
[53] The Gupta respondents persist in the argument that this Court has no

jurisdiction to entertain this application as both the Lease and Facility

Agreements confer exclusive jurisdiction on the English courts. I do not agree.

On a plain reading, the Lease Agreement and the Facility Agreement do not

exclude the jurisdiction of this Court. Clause 27.2 of the Lease Agreement

provides:

“Subject to Clause 27.4 (Repossession), the courts of England and Wales

shall have exclusive jurisdiction to settle any dispute arising out of or in

connection with this Agreement (including a dispute regarding the existence,

validity or termination of this Agreement).”

[54] The Parties agree that the courts of London, England are the most

appropriate and convenient courts to settle disputes and accordingly neither

Party will argue to the contrary save that, as such agreement conferring

jurisdiction is for the benefit of the Lessor only, the Lessor shall retain the right

to bring proceedings against the Lessee in any court in another country.”

[55] Clause 27.4 of the Lease Agreement in turn provides:

“Notwithstanding the provisions of Clauses 27.1 (Governing Law) and 27.2

(Jurisdiction) hereof, the governing Law and jurisdiction shall in the case of a

repossession action by Lessor in accordance with Clause 20.4 (De-

registration) hereof, be (at the exclusive choice of Lessor), any Law and

competent court in which jurisdiction the Aircraft may be physically positioned

and/or registered.”

[56] Similarly, clause 37.1 of the Facility Agreement provides:

 (a) “ Subject to Clause 37.1(b), English courts have exclusive jurisdiction

to settle any dispute arising out of or in connection with this Agreement

(including a dispute regarding the existence, validity or termination of

this Agreement) (a “Dispute”).

(b) The Parties agree that the courts of England are the most appropriate

and convenient courts to settle Disputes and accordingly no Party will

argue to the contrary.

(c) This Clause 37.1 is for the benefit of the Finance Parties only. As a

result no Finance Party shall be prevented from taking proceedings

relating to a Dispute in any other courts with jurisdiction. To the extent

allowed by Law, the Finance Parties may take concurrent proceedings

in any number of jurisdictions.

[57] EDC and Stoneriver are clearly entitled, under the Facility and Lease

Agreements respectively, to bring proceedings in any other court with

jurisdiction. In any event, this Court would not be bound by a contractual

provision that purported to exclude its jurisdiction. It is settled law that parties

to a contract cannot exclude the jurisdiction of a Court by agreement.14 When

faced with a clause purporting to oust a court’s jurisdiction, the Court may not

decline to exercise jurisdiction. Although in such a case the Court may

exercise its discretion to stay proceedings pending the outcome of

proceedings in a foreign jurisdiction, this Court has not been asked to do so in

the present matter.

14
Foize Africa (Pty) Ltd v Foize Beheer BV and Others 2013 (3) SA 91 (SCA) para 21; Omar v Inhouse Venue
Technical Management (Pty) Ltd 2015 (3) SA 146 (WCC) para 163.
 Jurisdiction under the Cape Town Convention

[58] This Court has jurisdiction for the further reason that the Facility

Agreement recognises South Africa as a Contracting State to the Convention

on International Interests in Mobile Equipment as supplemented by the

Protocol to the Convention on matters specific to aircraft equipment. Both the

Convention and the Protocol have the force of domestic statute.

[59] Under Article 11 of the Convention, the debtor and creditor may agree

in writing to the events that constitute a default and give rise to remedies

specified in the Convention. When such an event of default has occurred, the

lessor may seek a remedy under Article 10 and

“(a) subject to any declaration that may be made by a Contracting State under

Article 54, terminate the agreement and take possession or control of any

object which the agreement relates; or

(b) apply for a court order authorising or directing either of these acts.”

[60] Article 13(1) sets out an extensive list of remedies which a court may

grant on an interim basis. This includes an order vesting the possession,

control, custody, or management of the Aircraft in the creditor or immobilising

the Aircraft.

[61] Article 43 preserves jurisdiction for the purposes of article 13. Articles
 43(1) and (2) state that the courts of Contracting State chosen by the

parties have jurisdiction to grant relief under Article 13(1).

[62] Article 43(3) states that a court has jurisdiction to provide interim relief

under Article 43(1) or (2) irrespective of whether the final determination of the

relief claimed in Article 13 (1) will take place in a court of another Contracting

State.

[63] Under Article 43 of the Convention, the South African courts are

therefore recognised as having jurisdiction in this matter. South Africa is a

Contracting State, and the South African courts are the applicants’ chosen

forum for these interim proceedings, as permitted by the Lease and Facility

agreements. This Court therefore has jurisdiction to hear the matter and to

grant the relief sought.

 
Interim Interdictory Relief

[64] The requirements for an interim interdict are well-known. First, there

must be (at a minimum) a prima facie right on the part of an applicant.

Second, there must be a well-grounded apprehension of irreparable harm if

interim relief is not granted. Third, the balance of convenience must favour the

granting of interim relief. And lastly, there must be no other ordinary remedy

that is available to give adequate redress to the applicant.

[65] These factors are traded-off against one another. The stronger an

applicant’s prima facie right, the less the need to rely on prejudice to himself
 or herself. Conversely, the weaker the applicant’s prospects of success, the

greater the need for the other factors to favour him or her.

The right on which the applicants rely

[66] Clause 20.3 of the Lease Agreement provides for a series of

cumulative remedies if an Event of Default has occurred and is continuing:

(a) Clause 20.3(a) provides that Stoneriver may accept such repudiation
and terminate the leasing of the Aircraft (but without prejudice to the
continuing obligations of Westdawn under the Lease Agreement).

(b) Clause 20.3(c) provides that Stoneriver may either take possession of
the Aircraft or cause the Aircraft to be redelivered to Stoneriver at
the Redelivery Location.

(c) Clause 20.3(d) provides that Stoneriver may by serving a notice

require Westdawn to redeliver the Aircraft to Stoneriver at the

Redelivery Location.

(d) Clause 20.4 of the Lease Agreement provides that, if the leasing of

the Aircraft is terminated under clause 20.3, Westdawn is required to

take steps to deregister the Aircraft and redeliver it to Stoneriver.

[67] The effect of these provisions is that, if an event of default has

occurred and is continuing, Westdawn is obliged to redeliver the Aircraft to

Stoneriver. Once the leasing is terminated, there is no lawful basis for

Westdawn to have possession of the Aircraft and Stoneriver, as the owner,

is entitled to be placed back in possession of it. Stoneriver has exercised

these rights: the December notice, the January notice and the February
 notice relied on clause 19 and clause 20.3 of the Lease Agreement and

called on Westdawn to redeliver the Aircraft to Stoneriver.

[68] Stoneriver is the owner of the Aircraft. As the leasing has been lawfully

terminated, Stoneriver is entitled to claim possession of the Aircraft by virtue

of its ownership.

[69] The Gupta respondents contend that the relief sought in the notice of

motion cannot be granted since it involves an “inversion of the status quo”

and they are “entitled to continue the enjoyment of the full spectrum of rights

granted under the lease agreement”. This contention is unfounded for three

reasons. The first is that since the applicants have terminated the leasing of

the Aircraft, the Gupta respondents have no right to continue using the

Aircraft. The second is that interim relief is not always intended to preserve

the status quo. If that were the case, it would not be competent for mandatory

interdicts to be granted on an interim basis. Our courts have not only granted

mandatory interdicts on an interim basis, but have done so specifically in

order to require the redelivery of assets pendente lite.

[70] In any event, the relief sought in the notice of motion is the very relief

required by Article 13 of the Cape Town Convention, which obliges a

Contracting State to provide “speedy relief” involving “preservation of the

object” and “immobilisation of the object” pending final determination of a

claim for default.

The applicants’ right is established on the papers

[71] In order to establish the right which they seek to protect by interim

relief, the applicants must establish on at least a prima facie basis that an

event of default had occurred, and was continuing when they gave notice to

terminate the leasing of the Aircraft.

[72] It is clear from the definition of the term “event of default” read with

clause 20.1 of the Lease Agreement, that any one of the events listed in

clause 20.1 of the Lease Agreement would constitute an event of default.

Moreover, clause 20.1 provides that Westdawn “acknowledges that the

occurrence of any one of the foregoing Events of Default represents

repudiation (but not termination) of this Agreement by Lessee”. Thus

contrary to what the Gupta respondents argue, materiality of the event of

default i s not a general requirement for an event of default.

[73] In establishing an event of default under the Lease Agreement, regard

must be had also to the Facility Agreement and the Personal Guarantee. In

terms of clause 20.1(p) of the Lease Agreement, one of the events of

default listed is “the occurrence of a Loan Default”. A “Loan Default” is

defined as an event of default under the Facility Agreement. This means that

an event of default under the Facility Agreement is also an event of default

under the Loan Agreement.

[74] While the December, January and February notices rely on many

events of default, it would suffice if the applicants are able to show on a

prima facie basis that any one of those events of default has occurred.
 Since these are motion proceedings, the applicants must

e s t a b l i s h events of default that do not give rise to any significant factual

disputes. As is clear from the description of the events of default listed below,

they are essentially common cause.

Oakbay’s failure to provide audited financial statements to EDC

[75] The first undisputed event of default raised by the applicants is that

Oakbay’s annual financial statements have not been provided to EDC. In

terms of paragraph 1(a) of Schedule 10 to the Facility Agreement, Oakbay

undertook to provide EDC with its audited financial statements within 270

days after the end of each financial year. As raised by the applicants in their

February notice, Oakbay has not furnished EDC with its audited financial

statements for the financial year ended 28 February 2017.This constitutes an

event of default in terms of clause 20.3 of the Facility Agreement. It also

constitutes an event of default within the meaning of the Lease Agreement.

Stoneriver has accepted the repudiation and has terminated the leasing of

the Aircraft.

[76] The February notice was issued after the application had already been

launched.It was therefore not referred to in the founding affidavit but it was

referred to in the replying affidavit. The Gupta respondents seek to strike

this allegation from the replying affidavit as it was not raised in the December

and January notices. T h i s e v e n t h a d n o t y e t e v e n t u a t e d a t

the time when the December and January notices were

i s s u e d . T h e G u p t a r e s p o n d e n t s could have filed a rejoinder

affidavit if they disputed the factual allegations regarding the February notice.
 Since they did not do so, the applicants are entitled to rely on the contents of

the February notice. The comment of Murphy J in Tantoush v Refugee

Appeal Board15 is apposite:

“As these averments were made in the replying affidavit the second
respondent strictly speaking had no entitlement to respond to them and in the
normal course they could not be denied or explained by the respondents.
Nevertheless, if the allegations by Ms Peer were untrue, or if an adequate
explanation were possible, leave of the court could and should have been
sought to answer them …. The respondents did not request to be given
an opportunity to deal with these averments. Their failure to do so tilts the
probabilities towards the applicant's version”

[77] It follows that on this ground alone, an event of default has been

clearly established.

Liens granted by Oakbay and Mr and Mrs Gupta

[78] It is common cause that Oakbay granted a lien over its assets in

favour of the Bank of Baroda in 2011, and that Mr Atul and Mrs Chetali

Gupta granted liens over their assets in 2008. These liens were not

disclosed to the applicants when the Facility Agreement and the Lease

Agreement were concluded. Notably, Clause 12 to Schedule 10 of the Facility

Agreement provides:

“The Borrower and the Corporate Guarantor shall not, and the Borrower shall procure
that the Personal Guarantors shall not, create or permit to subsist any lien over any
of its assets, other than those liens created or permitted in accordance with the terms
of the Transaction Documents and the “Transaction Documents” for the purposes of
any Other Original Lender Transaction relating to the Companion Aircraft.”

[79] The granting of liens over their assets was clearly a breach by Oakbay
15
Tantoush v Refugee Appeal Board 2008 (1) SA 232 (T) para 51.
 as corporate guarantor, and Mr and Mrs Gupta as personal guarantors, of

their o b l i g a t i o n s u n d e r the Facility Agreement. This amounts to an event

of default within the meaning of both the Facility Agreement and the Lease

Agreement.

Atul Gupta ceased to be the chairman of Oakbay

[80] It is common cause that Mr Atul Gupta ceased to be the chairman

of Oakbay before the repayment date of 16 October 2017 and that he was not

the chairman of Oakbay when the December notice was issued. On each of

the subsequent repayment dates, Oakbay represented and warranted that

Mr Atul Gupta was the chairman of Oakbay. Since this was false and

constituted a material adverse change (MAC), it amounted to an event of

default within the meaning of clause 20.5 of the Facility Agreement and

20.1.p of the Lease Agreement.

Disposal of businesses by Oakbay

[81] The disposal of assets is a default event under Clause 20.15 of the

Facility Agreement. It is common cause that, in 2017, Oakbay commenced to

dispose of its interests in Infinity Media and Tegeta. This constituted an event

of default within the meaning of clause 20.15 of the Facility Agreement,

since Oakbay disposed of a material part of its assets. It also constituted an

event of default in terms of clause 20.3 of the Facility Agreement, since

Oakbay breached its undertaking in Schedule 10 clause 15(c) not to “sell,

lease, transfer or otherwise dispose of any of its assets”. It follows that this

was an event of default within the meaning of the Lease Agreement.

 Material adverse change
[82] The founding affidavit describes a series of events that had

impacted on Westdawn’s ability to perform its obligations under the Lease

Agreement at the moment when the December notice was issued. They

included the closure of Westdawn’s bank accounts by all four of the major

banks in South Africa; the delisting of Oakbay Resources from the JSE; and

the resignation of two auditors of Oakbay. The answering affidavit admits that

these events have occurred (although it disputes their legal characterisation).

[83] Each of these events undoubtedly constitute a material adverse

change, within the meaning of clauses 20.1(m) of the Lease Agreement. The

occurrence of a material adverse change constitutes an event of default in

terms of clause 20.1(q) of the Lease Agreement.16

The Eskom proceedings

[84] The Eskom proceedings were launched in December 2017. An amount

in excess of R7 billion has been claimed from Oakbay on the basis of corrupt

conduct. On each of the repayment dates, Oakbay represented and

warranted that no litigation was pending against it which, if adversely

determined, would have a material adverse effect upon its financial

condition.17 This was false, and amounted to an event of default within the

meaning of the Loan Agreement.18

16
Clause 20.1(q) of the Lease Agreement.
17
Clause 1(n) of the Facility Agreement.
18
Clause 20.1(g) of the Lease Agreement.
 The POCA proceedings
[85] In January 2018, the High Court in the Free State granted a

preservation order in terms of the Prevention of Organised Crime Act 121 of

1998 (“POCA”). The order preserved assets of Westdawn, Oakbay and Mr

Atul Gupta.

[86] In their founding papers, the applicants relied on allegations in

the POCA proceedings to the effect that corrupt payments had been made to

Westdawn. In their answering affidavit, the Gupta respondents did not

deal with these allegations other than to offer a bare denial. But this denial is

inadequate since the facts lie within the knowledge of the Gupta respondents.

The SCA explained the principle in Wightman t/a JW Construction v

Headfour (Pty) Ltd19 2008 3 SA 371 (SCA) para 13:

“There will of course be instances where a bare denial meets the requirement
because there is no other way open to the disputing party and nothing more can
therefore be expected of him. But even that may not be sufficient if the fact averred
lies purely within the knowledge of the averring party and no basis is laid for
disputing the veracity or accuracy of the averment. When the facts averred are
such that the disputing party must necessarily possess knowledge of them and be
able to provide an answer (or countervailing evidence) if they be not true or
accurate but, instead of doing so, rests his case on a bare or ambiguous denial
the court will generally have difficulty in finding that the test is satisfied…. There is
thus a serious duty imposed upon a legal adviser who settles an answering
affidavit to ascertain and engage with facts which his client disputes and to reflect
such disputes fully and accurately in the answering affidavit. If that does not happen
it should come as no surprise that the court takes a robust view of the matter.”

[87] On each of the repayment dates, Westdawn represented and

19
Wightman t/a JW Construction v Headfour (Pty) Ltd19 2008 3 SA 371 (SCA) para 13.
 warranted that no Prohibited Payment had been made to it or any of its

affiliates, and that no person acting on its behalf had been held by a judgment

of a court to have received a Prohibited Payment. In light of the POCA

proceedings, this was incorrect and amounted to an event of default within the

meaning of the Lease Agreement.

[88] In the Personal Guarantee, M r Atul and Mrs Chetali

G u p t a warranted that “there is no fact or circumstance which has not been

disclosed by the Guarantor to the Beneficiary in writing on or before the date

of this Guarantee, and which materially adversely affects or will materially

adversely affect the ability of the Guarantor to carry on his business or to

perform his obligations under any Transaction Documents to which he is a

party”. The events referred to in the POCA proceedings show that this

warranty was breached by Mr Atul Gupta and Mrs Chetali Gupta. This

constituted an event of default under both the Facility Agreement and the

Loan Agreement.

[89] The fact that the POCA preservation orders against the Gupta

respondents was set aside on 9 March 2017 by the Free State Division of the

High Court is immaterial because at the time of the issue of the January

notice, the warranty that no Prohibited Payments were made was false when

regard is had to the allegations in the POCA proceedings. Moreover, at the

time the POCA preservation orders against the Gupta Respondents were

valid and properly relied upon by the applications in support of the urgent

interim relief sought by them in this application.

 [90] For the reasons set out above, I am satisfied that the applicants have

established a strong prima facie right to the interim relief sought for the

grounding and return of the Aircraft to the applicants.

[91] By virtue of the strength of the right on which the applicants rely, the

other requirements for interim relief, namely irreparable harm, balance of

convenience and no other effective remedy assume a subordinate role. I am,

however, satisfied that the applicants have comfortably met the test for these

requirements as well.

[92] In relation to the irreparable harm, I have already found that the

applicants will suffer irreparable harm if the applicants are not, pending the

finalisation of the English proceedings, granted an interim interdict for the

return and storage of the Aircraft.

[93] As to the balance of convenience, little, if any, harm will be caused to

the Gupta respondents if interim relief were to be granted and if the applicants

were to be unsuccessful in the English proceedings. Although the Gupta

respondents will not be able to use the Aircraft during the interim period, they

will also not have to pay rental to Stoneriver.20 The savings from the non-

payment of the rental for leasing the Aircraft, could be used toward buying

first-class tickets on scheduled airlines or to charter another aircraft for the

Gupta respondents. This can hardly be an inconvenience.

[94] Markedly, EDC has tendered to compensate Westdawn for proven and

20
Tshwane City v Afriforum 2016 (6) SA 279 (CC) paras 59 and 63.
 actionable loss suffered by it if interim relief were to be granted and if final

relief were to be refused in the English proceedings. The Gupta respondents

have rejected the tender.

No other remedy
[95] In relation to the last requirement, the applicants have demonstrated

that there is no other satisfactory remedy. The suggestion by the Gupta

Respondents that the applicants’ alternative remedy is to allow Westdawn to

exercise the Call Option is singularly unhelpful as this is no remedy at all,

primarily because the Aircraft can only be purchased in terms of the Call

Option if “no Event of Default is continuing”. That is not the case here though,

since multiple Events of Default were continuing when the Call Option was

purportedly exercised.

[96] I am accordingly satisfied that the applicants have succeeded in

making out a case for interim relief that is directed at grounding the Aircraft

and storing it in a safe location pending the final determination of the English

proceedings.

Order

[97] In the result, I make the following order:

1. this application is enrolled as an urgent application and, insofar as may

be necessary, the forms prescribed by the rules of this Honourable
Court are dispensed with, that this application be heard as one of
urgency under Rule 6(12);
2. pending the final determination of the matter between the first
respondent and the applicants in the High Court of Justice (England
and Wales) under Claim Number BL-2017-000612 (“the interim
period”), ordering that

2.1. within fifteen calendar days of the date of this order, the first
respondent shall deliver the Bombadier Global 6000 with
Serial No 9631 and Registration Mark ZS-OAK (“the
aircraft”), together with appliances, components, parts,
instruments, appurtenances, accessories, furnishings, seats,
and other equipment and additions of wherever nature, into
the first applicant’s, alternatively, second applicant’s, further
alternatively, the first and second applicants’ custody at
Lansaria International Airport, Johannesburg, South Africa,
together with the documentation in Annexure “NM1”;

2.2. the first to fourth respondents are interdicted and restrained from
possessing, disposing of or using the Aircraft except for the
purposes of implementing the order in 2.1 above;

2.3. the first applicant, alternatively, the second applicant, further

alternatively, the first and second applicants, shall store and
maintain the Aircraft during the interim period, but the Aircraft
may not be used, sold or disposed of by the applicants
without the approval of a court of competent jurisdiction;

3. In the event that any of the first to fourth respondents fail to comply with
any parts of the orders in 1 and 2 above, and without prejudice to any
other enforcement (contempt of court or other proceedings which the
applicants may wish to institute), ordering that –

3.1. within three days of receiving notification in writing from the

applicants of the fact that the relevant order of this Court has not
been timeously complied with together with a written request by the
 applicants that the Aircraft registration be cancelled, the fifth
respondent is to cancel the Aircraft’s registration with immediate
effect for the duration of the interim period; and

3.2. the fifth respondent is to deliver to the applicants a certificate of

cancellation evidencing the cancellation of registration of the
Aircraft within five days of cancelling the registration.

4. The first to the fourth respondents are ordered to pay the costs of this
application, including the costs of two counsel.

_____________________________
KATHREE-SETILOANE
JUDGE OF THE HIGH COURT OF SOUTH AFRICA
GAUTENG LOCAL DIVISION,
JOHANNESBURG

Counsel for the Applicants: Mr A Cockrell SC with Ms I Kentridge

Instructed by: Webber Wentzel Attorneys

Counsel for the First and Second Respondents: Mr O Cook with Mr C Bester

Instructed by: Vasco De Oliveira Inc

Counsel for the Third and Fourth Respondents: Mr AR Bhana with Mr K Premhid

Instructed by: Gani Mayet Attorneys

Date of Hearing: 9 March 2018

Date of Judgment: 19 March 2016