2
LIPHOSA, HUMBULANI ROBERT Respondent
____________________________________________________ __________ _____
JUDGMENT
_______________________________________________________________ ____
BARNES A J
[1] This is an application for the rescission of an order for the provisional
sequestration of the Applicant’s estate granted by this Court on 23 January
2023.
[2] The Applicant is an advocate of the High Court of South Africa. The Respondent
is the Body Corporate of Philberta Court, which obtained the provisional
sequestration order against the Applicant . It did so on the basis of two
judgments taken against the Applicant coupled with nulla bona returns
subsequently issued by the sheriff in respect of each.
[3] The Applicant launched his rescission application against the provisional
sequestration order on 24 January 2023.
[4] The Respondent filed a notice of intention to opp ose the recission application
and duly delivered its answering affidavit on 28 February 2023.
[5] The Applicant failed to deliver a replying affidavit.
[6] The Applicant further failed to deliver heads of argument in his recission
application or to take any steps t o set the application down.
[7] The Respondent launched an application to compel the Applicant to file his
3
heads of argument. On 31 January 2024 , this Court, per his Lordship Mr Justice
Senyat si granted an order compelling the Applicant to file his heads of
argument and practice note within ten days of the date of the order. Judge
Senyatsi further granted costs against the Applicant on the attorney and client
scale.
[8] Notwithstanding the above, and in breach of this Court’s order, the Applicant
failed to delive r his heads of argument and practice note within the stipulated
ten days or at all.
[9] The Respondent proceeded to file its heads of argument and to set the
application down for hearing.
[10] On 9 January 202 5, counsel for the Respondent , Ms Putzier, prepared a draft
joint practice note , as required by the Practice Manual in this Division, and e -
mailed it to the Applicant for his input. The Applicant neither acknowledge d
receipt of Ms Putzier’s email , nor provided input in respect of the proposed join t
practice note.
[11] When the rescission application came before me for hearing on 10 February
2025, the Applicant appeared in person and sought leave to make brief
submissions on the merits of his rescission application. In response to
questioning from the C ourt, the Applicant did not deny that he was in breach of
the applicable rules or of the order of Senyatsi J and offered no explanation
therefor. Nevertheless, I permitted the Applicant to make submissions on the
merits of his application.
[12] Having heard b oth parties in respect of the rescission application, it is clear to
the Court that it is fatally defective in at least two fundamental respects.
12.1 First, while it is not clear whether the rescission application is brought in terms
of section 149(2) of the Insolvency Act 24 of 1936 or the common law , it is not
necessary for me to decide this in the circumstances of this case. In either
4
event the Applicant must make out case to satisfy the requirements of
“absence of wilful default ” and “bona fide defence. ” The Applicant’s rescission
application fails to even address these fundamental requirements. The
rescission application is fatally defective for this reason alone.
12.2 Second, the Applicant seeks re scission on the sole basis of a “Notice to
Remove Cause of C omplaint ,” (“the Notice”) which he delivered at the
eleventh hour, shortly before provisional sequestration application was due to
be heard on the unopposed roll on 23 February 2023. (Notably, the
sequestration application was on the unopposed roll because the Ap plicant
had failed to file an answering affidavit ). The Applicant contends that faced
with th e Notice, the Court was obliged to remove the matter from the
unopposed roll , and that its failure to do so entitles him to rescission of the
provisional sequestration order.
12.3 The Applicant is however not correct. Apart from the fact that the Notice deals
with matters which ought to be dealt with by way of Rule 7 of the Uniform
Rules of Court, no provision is made in the Rules for the issuing of a Notice to
Remove Cause of Complaint in application proceedings.
12.4 Thus Uniform Rule 23 affords a party in action proceedings an opportunity to
deliver a Notice to Remove Cause of Complaint failing which an exception
may be taken. However, Uniform Rule 6 , which govern s motion proceedings,
makes no provision for the issuing of a Notice to Remove Cause of
Complaint .1
12.5 The Applicant’s Notice was therefore irregular, and did not constitute a basis
for the removal of the unopposed sequestration application from the roll. Still
less does it constitute a basis for the rescission of the provisional
sequestration order . The Applicant’s rescission application is fatally defective
1 Notably, moreover, Rule 6 specifies which other rules apply to motion proceedings. Uniform Rule
6(12) by way of example provides that “the provisions of Rules 10, 11, 12, 13 and 14 apply to all
applications.”
6
Adv R Putzier , instructed by Loock Du Pisanie Inc