THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Not Reportable
Case no: 386/2023
In the matter between:
LUNESH SINGH APPELLANT
and
THE BODY CORPORATE OF ST TROPEZ RESPONDENT
Neutral citation: Singh v The Body Corporate of St Tropez (Case no 386/2023)
[2024] ZASCA 142 (21 October 2024)
Coram: PONNAN, MOKGOHLOA and KEIGHTLEY JJA and HENDRICKS and
NAIDOO AJJA
Heard: 4 September 2024
Delivered: This judgment was handed down electronically by circulation to the
parties’ representatives by email; publication on the Supreme Court of Appeal website
and released to SAFLII. The time and date for hand -down is deemed to be 11h00 on
the 21 October 2024.
Summary: Provisional order of sequestration – conflict of interest on part of judicial
officer raised ex post facto as ground of appeal – Judicial Conduct Committee
upholding complaint and finding judicial officer ought mero motu to have recused
herself – appeal upheld – provisional sequestration order set aside – application
remitted to high court.
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ORDER
On appeal from: Gauteng Division of the High C ourt, Pretoria (Mokose J, sitting as
court of first instance):
1 The appeal is upheld.
2 The order of the high court dated 22 November 202 1 provisionally
sequestrating the estate of the appellant, Mr Lunesh Singh, is set aside.
3 The application for the sequestration of the estate of the appellant, Mr Lunesh
Singh, is remitted to the high court for consideration by a differently constituted court.
4 The costs of the appeal are reserved for determination by the high court.
JUDGMENT
Keightley JA ( Ponnan and Mokgohloa JJA and Hendricks and Naidoo AJJA
concurring)
[1] On 22 November 202 1, Mokose J in the Gauteng Division of the High Court,
Pretoria (the high court) granted an order , on the application of the respondent, the
Body Corporate of St Tropez (the body corporate) , provisionally sequestrat ing the
estate of the appellant, Lunesh Singh (Mr Singh).
[2] The question in the appeal, with leave of th is Court, is whether , on the facts,
Mokose J was disqualified from presiding in the matter , because of a conflict of
interest, and if so, whether she should mero motu have recused herself. In that event,
the provisional order that issued must, without more, be set aside.
[3] The body corporate applied for Mr Singh’s sequestration in the high court. As
the owner of four units in the St Tropez sectional title scheme, Mr Singh was liable to
pay levies to the body corporate. As a result of his persistent failure to pay levies, the
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body corporate had obtained several judgments against him in the magistrates’ courts.
It averred that all attempts at execution to satisfy the judgment debts had resulted in
nulla bona returns. Based on these alleged acts of insolvency, and on the additio nal
averment that Mr Singh was factually insolvent , the body corporate instituted the
sequestration application.
[4] Although Mr Singh entered an appearance to oppose the sequestration
application, he failed to file an answering affidavit timeously. Conse quently, the
application was enrolled on the unopposed motion court roll for hearing on
22 November 2021. On 29 October 2021, Mr Singh filed a notice (the rule 30 notice)
in terms of rule 30 and/or 30A of the Uniform Rules of Court (the rules). The rule 30
notice was signed by Mr Singh personally. It listed fourteen complaints, ranging from
an alleged failure to comply with rule 6(5), to a complaint about the body corporate’s
lawyer’s alleged lack of experience. The body corporate did not respond to the rule 30
notice. On 18 November 2021 , Mr Singh instituted an application in terms of rule 30
to set aside the sequestration application as an irregular step. The body corporate
opposed the application and filed an answering affidavit in which, among other things,
it averred that the rule 30 n otice, and hence Mr Singh’s application, did not comply
with the rules.
[5] This was how matters stood when the sequestration application was enrolled
for hearing before Mokose J on 22 November 2021 on the unopposed motion court
roll. Mr Singh appeared in person at the hearing . Although there is no judgment
recording what transpired in the hearing, it appears to be common cause that Mr Singh
made submissions in an effort to persuade the court that the matter should not proceed
on an unopposed basis . Unpersuaded, Mokose J granted the provisional
sequestration order on the strength of the unopposed averments in the body
corporate’s founding affidavit.
corporate’s founding affidavit.
[6] The averments in the founding affidavit relevant to this appeal are those dealing
with Mr Singh’s assets and the alleged advantage to creditors in the event of his estate
being sequestrated. The body corporate averred that Mr Singh owned a total of eight
immovable properties. The details of these properties were not contained in the
founding affidavit. However, reference was made to valuation reports, which were
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annexed, for each of the eight properties. One of the annexures was a valuation report
in respect of Unit 17 in a sectional title scheme registered as Upper Houghton 169 (the
Upper Houghton property) . The valuation report reflected that the full name of the
owner of the property was ‘Rajamooni Lunesh’, with identity number 7604085134080.
This is Mr Singh’s identity number.
[7] The founding affidavit listed eight judgments against Mr Singh, identified in an
attached TransUnion Consumer Profile, totalling some R3,9 million. Reference was
also made to the amounts owing to the bondholders in respect of his eight immovable
properties, totalling R2,2 million. As proof of the outstanding bonds, printouts from the
office of the Registrar of Deeds were annexed to the founding affidavit. Included in
them was the deeds record relating to the Upper Houghton property, reflecting once
more that the owner of the property was Rajamooni Lunesh. Ownership was registered
in 2005, with an endorsement in favour of Standard Bank of South Africa Ltd for
R112 000.
[8] The body corporate averred in the founding affidavit that the sequestration of
his estate would be to the advantage of Mr Singh’s creditors in that, given the value of
his immovable properties, the sale would generate sufficient proceeds to pay the
administration and sequestration costs , as well as his creditors , a not insignificant
percentage in the Rand. In addition, Mr Singh had received substantial rental income
from letting out his properties for many years and a trustee would be able to investigate
the whereabouts of, and recover, the rental proceeds. It was further averred that as
Mr Singh had other creditors whom he was unable to pay, the concursus creditorum
established on sequestration would be to their common advantage.
[9] Based on these and the remaining averments in the founding papers, the h igh
court was satisfied that the body corporate had met the requirements for the grant of
court was satisfied that the body corporate had met the requirements for the grant of
a provisional order of sequestration . On 10 December 2021, Mr Singh filed an
application for leave to appeal against the order. He listed several grounds of appeal.
This Court is only concerned with one , this being an averment, for the first time, that
Mokose J had failed to disclose that she had a conflict of interest in the matter and to
recuse herself from the application for his sequestration. The application for leave to
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appeal was heard by Mokose J on 4 October 2022 and dismissed. Again, there is no
judgment setting out the reasons for refusing the application.
[10] The facts giving rise to the conflict of interest alleged by Mr Singh are largely
common cause. The first key fact is his ownership of the Upper Houghton property,
albeit that that property is registered to him under a different name. T he second key
fact is that the Serai Family Trust (the Trust) is the owner of two other units in the same
Upper Houghton sectional title scheme. Critically, Mokose J is a trustee of the Trust .
Moreover, between 2008 and 2016, Mokose J was the Chairperson of the Upper
Houghton Body Corporate . In her role as Chairperson, Mokose J, deposed to a
replying affidavit in high court proceedings in 2016 in which the Upper Houghton Body
Corporate instituted an application against Mr Singh. In those proceedings he was
cited by the name Rajamooni Lunesh.
[11] The final key fact is that after the hearing of the sequestration application
Mr Singh lodged a complaint against Mokose J under s 14(3) of the Judicial Services
Act 9 of 1994 (the JSC Act). The basis of the complaint was the same conflict of
interest allegation relied on by Mr Singh in this appeal. In terms of s 17(1) (b) of the
JSC Act, Victor J was designated to inquire into the merits of the complaint and to
make an appropriate order. Shortly before the appeal was heard and, after this Court
had made inquiries with the Judicial Conduct Committee, a copy of the report by Victor
J (the JCC report) was made available to the Court and to the parties. It records a
finding that Mr Singh’s complaint was well-founded and that a reprimand of Mokose J
by the Chair of the Judicial Conduct Committee is justified.
[12] The question for decision in this appeal is whether , on these facts, Mokose J
ought mero motu to have recused herself. The duty to recuse in a case where a judicial
ought mero motu to have recused herself. The duty to recuse in a case where a judicial
officer has a conflict of interest falls within the realm of the constitutional imperative to
avoid a reasonable apprehension of bias in the dispensing of justice . A reasonable
apprehension of bias may arise when the judicial officer has some attachment to the
case which suggests that she has an interest in the outcome of the litigation.1 This will
1 Bernert v Absa Bank Ltd [2010] ZACC 28; 2011 (4) BCLR 329 (CC); 2011 (3) SA 92 (CC) (Benert)
para 45.
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depend on the particular facts of the case, and the nature and extent of the interest. 2
If an interest is established on the facts, the test is whether, in the mind of a reasonable
litigant in possession of all the relevan t facts, the judicial officer might not bring an
impartial and unprejudiced mind to bear on the resolution of the dispute before the
court.3
[13] Mokose J did not have an obvious, personal, and direct interest in the case
before her or in either of the litigants. She had no link with the body corporate that
applied for Mr Singh’s sequestration. In the Upper Houghton litigation against
Mr Singh, she had signed the replying affidavit in her representative capacity as the
chairperson of that body corporate.
[14] That said, a notable feature of this case is the nature of the relief sought in the
application that served before her. The body corporate applied for Mr Singh’s
sequestration, which required Mokose J to consider whether this would be to the
advantage of creditors. Mokose J is a trustee of the Trust that, like Mr Singh, owns
property in the Upper Houghton sectional title scheme. The Trust is a member of the
Upper Houghton body corpora te, an entity that previously litigated against Mr Singh.
On these facts, the Upper Houghton body corporate potentially falls into the class of
creditors that could possibly benefit from Mr Singh’s sequestration. Consequently, and
considered objectively, it might be said that Mokose J had an interest, albeit not a
direct or personal interest, in the outcome of the sequestration application.
[15] Unfortunately, one of the difficulties of this case , is that the alleged conflict of
interest and recusal application were not dealt with when the matter first came before
Mokose J. We also do not have Mokose J’s reasons for refusing leave to appeal when
the alleged conflict of interest was raised before her for the first time. However, it is
significant that the JCC upheld Mr Singh’s complaint. It found that:
significant that the JCC upheld Mr Singh’s complaint. It found that:
‘The entire conspectus of facts which served before Judge Mokose at the provisional
sequestration hearing should have raised an alarm for Judge Mokose when reading the
2 Benert fn 1 above para 57.
3 Benert fn 1 above para 29, citing President of the Republic of South Africa and Others v South African
Rugby Football Union and Others [1999] ZACC 9; 1999 (4) SA 147 (CC); 1999 (7) BCLR 725 (CC)
paras 36-39 (SARFU II).
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papers and in the court hearing itself. Albeit it that Mr Singh did not seek her recusal at the
hearing, she should mero motu have recused herself.’
[16] It must be emphasised that the correctness of the findings in the JCC report is
not an issue that is before this Court. Those findings, which I understand have not
been challenged to date, remain valid until set aside by a court. 4 As the Constitutional
Court put it in MEC for Health, Eastern Cape and Another v Kirland Investments (Pty)
Ltd, ‘official conduct that is vulnerable to challenge may have legal consequences and
may not be ignored until properly set aside’. 5 In other words, this Court must accept
that the statutory body constitutionally responsible for dealing with complaints about
judicial offi cers has found that Mokose J should have recused herself. We cannot
simply ignore this finding. Moreover, to do so would be to undermine the constitutional
imperative of ensuring that public confidence in our judicial system is maintained.
[17] The JCC report , taken together with the other considerations alluded to, is
sufficient, in my view, to tip the scales in favour of a finding that Mokose J ought not
to have heard the application. When all of the facts are viewed cumulatively it must be
concluded that the reasonable person, with knowledge of them would reasonably
apprehend that Mokose J might not have approached the sequestration application
with an open mind. A case for her recusal is properly established.
[18] This conclusion serves to advance public confidence in the judicial system. At
the same time, it does not result in undue prejudice to the body corporate. This is an
important consideration because the body corporate bears no responsibility for the
events that led to the appeal . Where it is found that a judicial officer ought to have
recused herself , the proceedings before her must be regarded as a nullity. 6
Consequently, the order granted by Mokose J provisionally sequestrating Mr Singh’s
Consequently, the order granted by Mokose J provisionally sequestrating Mr Singh’s
estate falls to be set aside. It follows that the application by the body corporate for the
sequestration of his estate must be remitted for consideration afresh by a different
judge.
4 Oudekraal Estates (Pty) Ltd v City of Cape Town and Others 2004 (6) SA 222 (SCA).
5 MEC for Health, Eastern Cape v Kirland Investments (Pty) Ltd [2014] ZACC 6; 2014 (5) BCLR 547
(CC); 2014 (3) SA 481 (CC) para 103.
6 Moch v Nedtravel (Pty) Ltd t/a American Express Travel Service 1996 (3) SA 1 (A) 9B-G.
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[19] As far as the issue of costs is concerned, Mr Singh has represented himself in
the proceedings to date. His success on appeal wa s not based on the substantive
merits of the sequestration order. The sequestration application is pending and is yet
to be adjudicated afresh on its merits. In any event, the costs, such as they are, will in
all likelihood be costs in the sequestration. That being so, it would be best for the costs
of the appeal to be reserved for determination by the high court.
[20] I make the following order:
1 The appeal is upheld.
2 The order of the high court dated 22 November 2021 provisionally
sequestrating the estate of the appellant, Mr Lunesh Singh, is set aside.
3 The application for the sequestration of the estate of the appellant , Mr Lunesh
Singh, is remitted to the high court for consideration by a differently constituted court.
4 The costs of the appeal are reserved for determination by the high court.
________________________
R M KEIGHTLEY
JUDGE OF APPEAL
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Appearances
For appellant: Appellant representing himself
Instructed by: No attorneys appointed
For respondent: J Vorster SC with N G Louw
Instructed by: Beyers Incorporated Attorneys, Pretoria
Phatshoane Henney Attorneys, Bloemfontein.