Abader and Another v Gillespie (3525/2011) [2011] ZAECPEHC 53 (2 December 2011)

Abader and Another v Gillespie (3525/2011) [2011] ZAECPEHC 53 (2 December 2011)

The court found that the provisional sequestration order was erroneously sought and granted in the absence of the applicants, despite their timely notice of intention to oppose and the express terms of the notice of motion affording them until 25 November 2011 to file opposing papers. The respondent's counsel failed to draw the presiding Judge's attention to these terms, leading to the order being granted prematurely. The court held that, under Rule 42(1), once it is established that the order was erroneously sought and granted in the absence of the affected party, rescission must follow without the need to show good cause. The application for rescission was inherently urgent, and the...

Citation
[2011] ZAECPEHC 53
Parties
Applicant: Deborah Abader; Applicant: Nasiem Abader; Respondent: Prudence Gillespie
Court
Eastern Cape High Court, Port Elizabeth
Jurisdiction
South Africa
Judgment Date
2 December 2011
Case Number
3525/2011
Procedural Posture
Urgent Application / Application for Rescission of Provisional Sequestration Order Under Rule 42
Outcome
Application for rescission granted; provisional sequestration order rescinded; costs awarded against respondent on attorney and client scale.
Judges
J W Eksteen
Legal Topics
Provisional Sequestration, Rescission of Judgment, Rule 42 Uniform Rules, Urgent Application, Attorney and Client Costs
Civil Procedure Banking and Finance Provisional Sequestration Rescission of Judgment Rule 42 Uniform Rules Urgent Application Attorney and Client Costs

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 4 Authorities cited 8 Party arguments 2
Sign in to unlock

Parties

Deborah Abader

Applicant

Nasiem Abader

Applicant

Prudence Gillespie

Respondent

Procedural Posture

Urgent Application / Application for Rescission of Provisional Sequestration Order Under Rule 42

Legal Issues

  1. 1 Whether the provisional sequestration order granted on 15 November 2011 was erroneously sought or granted in the absence of the applicants.
  2. 2 Whether the applicants are entitled to rescission of the provisional sequestration order under Rule 42(1) of the Uniform Rules of Court.
  3. 3 Whether the application for rescission was properly brought as one of urgency.

Ratio Decidendi

The court found that the provisional sequestration order was erroneously sought and granted in the absence of the applicants, despite their timely notice of intention to oppose and the express terms of the notice of motion affording them until 25 November 2011 to file opposing papers. The respondent's counsel failed to draw the presiding Judge's attention to these terms, leading to the order being granted prematurely. The court held that, under Rule 42(1), once it is established that the order was erroneously sought and granted in the absence of the affected party, rescission must follow without the need to show good cause. The application for rescission was inherently urgent, and the...

Court Disposition

Application for rescission granted; provisional sequestration order rescinded; costs awarded against respondent on attorney and client scale.

Orders

  • The provisional order of sequestration granted on 15 November 2011 is rescinded.
  • The respondent is ordered to pay the applicants' costs of this application on a scale as between attorney and client.