While the South Gauteng High Court in Johannesburg has ordered members of the controversial Gupta family to return an aircraft to a Canadian bank within five days, it has given them a small reprieve.
The court first wants to determine whether they are able to comply with the order, and if not, why their non-compliance was not willful and in bad faith.
It has therefore suspended its order.
Earlier on Friday, the court found that Atul Gupta, his wife Chetali, as well as Westdawn and Oakbay Investments had breached a court order that they return the now infamous Bombadier Global 6000 to Export Development Canada (EDC).
In a previous application lodged by EDC and Stoneriver, Judge Fayeeza Kathree-Setiloane ordered that the aircraft be delivered to Lanseria airport.
However, the case returned to court for a contempt of court application after the jet was not delivered.
On Friday, Kathree-Setiloane said the court had to weigh up a number of issues arising from the previous application, including whether the orders the court had given in the main application were final or provisional, and whether the Gupta respondents were in breach of the judgment and the order in the main application heard in March this year.
“It is common cause on the papers, that the first three requirements for civil contempt in this application have been satisfied in that the order was granted against the respondents and they were served with it by the applicants’ attorneys,” Kathree-Setiloane said.
“It is also common cause that the respondents have not complied with the order.”
Kathree-Setiloane said the Guptas‘ argument that the date of the order became effective after her law clerk sent a revised copy of the judgment a few days later was “ill-founded”.
The judge said the Guptas conceded in their arguments that they hadn‘t delivered the aircraft and that they were under no obligation to do so pending the outcome of an application for leave to appeal they had lodged.
“Therefore, from that moment on, the Gupta respondents were wrong in law and their justification for not being in willful non-compliance of the order was no longer available to them, and they were therefore not acting in good faith,” she said.
“But there have been new developments in the matter. It is common cause that on 13 April 2018, the aircraft arrived at Lanseria Airport, was not delivered to the applicants in compliance with the order, and was subsequently seized by the Asset Forfeiture Unit…”
Kathree-Setiloane said this gave rise to whether the Guptas were able to comply with the court‘s earlier order.
She found that the Guptas were in breach of the order and ruled that they should comply within five days.
However, the court suspended this, pending a determination by the court of whether the Guptas were able to comply with the order, and if not, why their non-compliance was not willful and in bad faith.
Kathree-Setiloane ordered the Guptas to file a supplementary affidavit within 10 days to explain why they were prevented from complying with the court order.
In turn, EDC and Stoneriver have to file an answering affidavit within 10 days after receiving the Guptas‘ affidavit.