About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: North Gauteng High Court, Pretoria
SAFLII
>>
Databases
>>
South Africa: North Gauteng High Court, Pretoria
>>
2010
>>
[2010] ZAGPPHC 80
|
|
Stone Ridge Country Estate Homeowners' Association v Syed and Others (42659/2008) [2010] ZAGPPHC 80 (30 July 2010)
IN THE NORTH GAUTENG HIGH COURT,
PRETORIA (REPUBLIC OF SOUTH
AFRICA)
CASE NUMBER:
42659/2008
DATE:30/07/2010
In the matter between:
STONE RIDGE COUNTRY
ESTATE
HOMEOWNERS' ASSOCIATION Applicant
and
MUJTABA HASSDAN SYED 1
st
Respondent
NASEERA
HASSAN SYED 2
nd
Respondent
ABSA BANK LTD. 3
rd
Respondent
JUDGMENT
GOODEY AJ:
[1]
INTRODUCTION:
1.1 This is
an application for an order in terms whereof the Respondents' joint estate
should be provisionally sequestrated.
1.2 The Applicant obtained leave
from this Court to effect service of the sequestration application by means of
substituted service.
[2]
AD POINTS
IN
LIMINE:
2.1 I have been called on to consider the following
separate issues before turning to the merits. These are:
2.2 e a matter is
decided on exception, there are two relevant considerations
2.2.1 The
Intervening Creditors failure to comply with the Court Order issues on 25
September 2009 and the resultant request for condonation;
2.2.2 The authority
of Mr De Bruyn to represent the Intervening Creditor and the lack of proof that
the Intervening Creditor has authorised
the litigation.
[3]
AD:
CONDONATION:
3.1 On the 25
th
September 2009 the
Intervening Creditor was ordered to file his answering affidavit within 15
days.
3.2 The affidavit was only filed on the 22
nQ
February 2010
-almost 4 months late
1
3.3 The Intervening Creditor advances only
two reasons in this regard:
3.3.1 Page 78 (paragraph 41) of the
papers:
"The reason why the Intervening Creditor was not in a position to
file this opposing affidavit timeously can be ascribed solely to
the fact that
the Intervening Creditor endeavoured to obtain an additional valuation from the
valuator who complied
Annexure
"JH8. During February 2010 it became
apparent that an additional expense of between R8 000,00 to R10 000,00 would
have to be expended
in order to obtain an additional valuation. It was then
decided not to incur such costs and that
Annexure "JH8"
will have to
suffice for present purposes."
3.3.2 On the same page and
paragraph:
"/ respectfully submit that the Intervening Creditor has
presented the Honourable Court with important facts and information which
shall
enable the Court to properly adjudicate the Applicant's application and request
the Honourable Court to take this into account
in considering whether to grant
the intervening Creditor the condonation sought by it."
3.4 As to
the first reason:
How an amount of between R8 000,00 and R10 000,00 can be of
any consideration to the intervening Creditor, taking into account its
size,
boggets the mind.
3.5 As to the second reason:
Although important facts
and information were indeed put forward by the Intervening Creditor, it is
definitely clear that the Intervening
Creditor is over exaggerating its
contribution in this regard.
3.6 In view of the aforegoing, the application
for condonation should be refused. However, I will be applying the utmost
leniency
condone it.
[4]
AD: AUTHORITY OF MR DE
BRUYN:
4.1 Having perused the resolution, it is clear that Mr De
Bruyn has/had the necessary authority.
[5]
RELIEF SOUGHT BY THE
INTERVENING CREDITOR:
5.1 The Intervening Creditor request the Court
to:
1.
Condone the Intervening Creditors late filing of its
Opposing Affidavit.
2. Dismiss the application with costs on a scale
as between attorney and client."
[6]
THE
MERITS:
6.1 For the Applicant to succeed with its application it has
to
convince the Honourable Court that:
6.1.1 its has a claim which
entitles it, in terms of Section 9(1) to apply for the sequestration of the
Respondents' estate;
6.1.2 the Respondents' have committed an act of
insolvency or is factually insolvent;
6.1.3 there is reason to believe that
it will be to the advantage of creditors of the Respondents if their estate is
sequestrated.
6.2 It is trite law that the onus of satisfying these
requirements rests on the shoulders of the Applicant. No more than
prima
facie
proof of these facts needs to be produced for a provisional order to
be granted.
6.3 Applicant argued that it had satisfied these requirements
with reference to the papers and also to the following:
6.3.1 Applicant's
judgment against the Respondents;
6.3.2 The
nulla bona
alternatively
the First Respondent's factual financial position
alternatively
the fact that the Respondents have left South Africa
without provision for the payment of their debts;
6.3.3 The First
Respondent's ownership of the immovable properties.
6.4 Having perused the
papers. I am satisfied that the Applicant made out a
prima facie
case.
[7]
CONCLUSION:
i therefore make the
following order:
1. The Intervening Party's opposition is dismissed with
costs:
2. Prayers 1 and 2 of the notice of motion are made an order of Court
and the return day will be the 21
st
of September 2010;
3. Costs
will be costs in the insolvent estate.
GOODEY AJ