Guptas argue SA court lacks power to force return of aircraft

03 May 2018 - 13:53 By Nomahlubi Jordaan
Ajay Gupta and his younger brother Atul.
Ajay Gupta and his younger brother Atul.
Image: MARTIN RHODES

The South Gauteng High Court does not have jurisdiction to hear an application by a Canadian bank to have the Gupta family return an aircraft they bought through it‚ the family argued on Thursday.

The EDC lent the Guptas $41-million to buy their Bombardier jet. The bank had approached the court on an urgent basis‚ asking it to direct that the Bombardier Global 6000 with the tail number ZS-OAK be grounded because the family had defaulted on repayments and to stop it from using the aircraft to commit crimes or flee from justice.

The bank said it feared the aircraft would be seized by the Asset Forfeiture Unit (AFU). The application was brought before Judge Kathree Setiloane in the South Gauteng High Court.

In March‚ Setiloane ordered Westdawn Investments to return the aircraft within 15 days of the date of the order‚ pending the final determination of the case between Westdawn Investments and the EDC in the High Court of Justice in the United Kingdom.

She also interdicted and restrained the companies and the Gupta family from "possessing‚ disposing or using" the aircraft.

Arguing for leave to appeal Setiloane's order‚ Advocate Kameel Premhid‚ representing Atul and Chetali Gupta‚ told the court it did not have the jurisdiction to hear the application.

"The court lacks jurisdiction to entertain the application. The court has no influence over the English court."

Owen Cook SC‚ representing Westdawn Investments and Oakbay‚ said that Setiloane's decision was subject to appeal because "the order to return the aircraft is not the subject of any relief claimed in Wales".

Cook told the court that the family had paid the EDC but the bank chose not to accept the money.

"We submit that there is a basis on which to grant leave to appeal. A full bench will be the appropriate court to hear the appeal."

Cook also argued that in her judgment Setiloane did not address any of the companies' arguments.

"You did not articulate why you rejected our argument."

Setiloane‚ however‚ charged that Cook had not addressed any merits in his heads of argument.

Arguing for EDC‚ Advocate Alfred Cockrell said the court's decision could not be appealed because it was not in the interests of justice to grant leave to appeal.

He described the family's argument that the order was final as "schizophrenic".

"The submission that the order is final is schizophrenia. This is an interim order. The judgment is correct. There is no reasonable prospect that an appeal court will overturn the court order‚" Cockrell argued.

He submitted that the bank was concerned that the aircraft was not being serviced. However‚ Cook assured the court that was not the case‚ as it was carrying passengers.


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