ABSA Bank Limited v Cupido N.O and Another (8898/2023) [2024] ZAWCHC 19 (31 January 2024)

ABSA Bank Limited v Cupido N.O and Another (8898/2023) [2024] ZAWCHC 19 (31 January 2024)

The court found the Trust's explanation for the late answering affidavit unsatisfactory and unsupported by evidence, but condoned the delay as ABSA did not claim prejudice and the interests of justice required consideration of the answering affidavit. On the merits, the court held that ABSA had established a...

Source-derived case information.

Citation
[2024] ZAWCHC 19
Parties
Applicant: ABSA Bank Limited; Respondent: Nigel Oliver Cupido N.O.; Respondent: Theresa Johanna Cupido N.O.
Court
Western Cape High Court, Cape Town
Jurisdiction
South Africa
Judgment Date
31 January 2024
Case Number
8898/2023
Procedural Posture
Urgent Application / Opposed Application for Provisional Sequestration; Condonation for Late Answering Affidavit
Outcome
Provisional sequestration order granted against the respondents' estate.
Judges
Adhikari AJ
Legal Topics
Provisional Sequestration, Condonation, Insolvency Act, Act of Insolvency, Creditor Claims
Civil Procedure Banking and Finance Provisional Sequestration Condonation Insolvency Act Act of Insolvency Creditor Claims

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Parties

ABSA Bank Limited

Applicant

Nigel Oliver Cupido N.O.

Respondent

Theresa Johanna Cupido N.O.

Respondent

Procedural Posture

Urgent Application / Opposed Application for Provisional Sequestration; Condonation for Late Answering Affidavit

Legal Issues

  1. 1 Whether condonation should be granted for the late delivery of the answering affidavit.
  2. 2 Whether ABSA has made out a prima facie case for the provisional sequestration of the TJ & NO Cupido Family Trust.
  3. 3 Whether the Trust has committed an act of insolvency as contemplated by section 8(g) of the Insolvency Act.

Ratio Decidendi

The court found the Trust's explanation for the late answering affidavit unsatisfactory and unsupported by evidence, but condoned the delay as ABSA did not claim prejudice and the interests of justice required consideration of the answering affidavit. On the merits, the court held that ABSA had established a liquidated claim exceeding R100, and the Trust had committed an act of insolvency by offering to pay its debt in instalments, thereby acknowledging its inability to pay the full amount due. The Trust failed to provide evidence of its financial position or demonstrate that its debts would be paid within a reasonable time. The court was satisfied that sequestration would be to the...

Court Disposition

Provisional sequestration order granted against the respondents' estate.

Orders

  • The respondents’ estate is placed under provisional sequestration.
  • A rule nisi is issued calling upon the respondents and all other interested parties to show cause to this Court on a future date why the respondents’ estate should not be placed under final sequestration and why the costs of this application should not be costs in the sequestration of the respondents’ estate.