AES Consulting CC and Others v Malaba ; Tomberry Trading Enterprise CC and Another v AES Consulting CC and Others: In re: AES Consulting CC and Others v Tomberry Trading Enterprise CC and Another (2021/7954; 2019/31650) [2022] ZAGPJHC 834 (26 October 2022)

AES Consulting CC and Others v Malaba ; Tomberry Trading Enterprise CC and Another v AES Consulting CC and Others: In re: AES Consulting CC and Others v Tomberry Trading Enterprise CC and Another (2021/7954; 2019/31650) [2022] ZAGPJHC 834 (26 October 2022)

The court found that Ms Malaba was not properly served with the application, as service was not effected at her nominated domicilium citandi et executandi. The applicants failed to provide proof that the order was brought to her attention, and service by email to Parliament was insufficient given the number of parliamentarians. The court accepted Ms Malaba's explanation for her default and found her defence of duress to be potentially bona fide. Both parties presented versions that were difficult to accept, but the matter could only be resolved at trial. Accordingly, the requirements for rescission under the common law were met, and condonation was granted. As the rescission succeeded,...

Citation
[2022] ZAGPJHC 834
Parties
Applicant: AES Consulting CC; Applicant: LMD Engineering CC; Applicant: Kalarz Hospitality CC; Respondent: Bernice Malaba (nee Swarts); Applicant: Tomberry Trading Enterprise CC; Applicant: Bernice Swarts
Court
South Gauteng High Court, Johannesburg
Jurisdiction
South Africa
Judgment Date
26 October 2022
Case Number
2021/7954; 2019/31650
Procedural Posture
Civil Application / Rescission and Sequestration Applications
Outcome
Rescission granted; provisional sequestration order discharged; costs awarded against the applicants.
Judges
S. Yacoob
Legal Topics
Rescission of Judgment, Sequestration, Service of Process, Acknowledgment of Debt
Civil Procedure Commercial and Corporate Rescission of Judgment Sequestration Service of Process Acknowledgment of Debt

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Parties

AES Consulting CC

Applicant

LMD Engineering CC

Applicant

Kalarz Hospitality CC

Applicant

Bernice Malaba (nee Swarts)

Respondent

Tomberry Trading Enterprise CC

Applicant

Bernice Swarts

Applicant

Procedural Posture

Civil Application / Rescission and Sequestration Applications

Legal Issues

  1. 1 Whether the order granted against Ms Malaba and Tomberry should be rescinded.
  2. 2 Whether the provisional sequestration order against Ms Malaba should be discharged.
  3. 3 Whether service of the original application was properly effected on Ms Malaba.

Ratio Decidendi

The court found that Ms Malaba was not properly served with the application, as service was not effected at her nominated domicilium citandi et executandi. The applicants failed to provide proof that the order was brought to her attention, and service by email to Parliament was insufficient given the number of parliamentarians. The court accepted Ms Malaba's explanation for her default and found her defence of duress to be potentially bona fide. Both parties presented versions that were difficult to accept, but the matter could only be resolved at trial. Accordingly, the requirements for rescission under the common law were met, and condonation was granted. As the rescission succeeded,...

Court Disposition

Rescission granted; provisional sequestration order discharged; costs awarded against the applicants.

Orders

  • The order of this court in case number 2019/31650, granted by Bhoola AJ on 30 October 2019, is set aside.
  • The provisional sequestration order granted on 04 May 2021 in case number 2021/7954 is discharged.