Basson N.O and Another v Orcrest Properties (Pty) Ltd; In re: Basson N.O and Others v Orcrest Properties (Pty) Ltd; In re: Basson N.O and Others v Orcrest Properties (Pty) Ltd (A466/15, A467/15, A468/15) [2016] ZAWCHC 111; [2016] 4 All SA 368 (WCC) (2 September 2016)

Basson N.O and Another v Orcrest Properties (Pty) Ltd; In re: Basson N.O and Others v Orcrest Properties (Pty) Ltd; In re: Basson N.O and Others v Orcrest Properties (Pty) Ltd (A466/15, A467/15, A468/15) [2016] ZAWCHC 111; [2016] 4 All SA 368 (WCC) (2 September 2016)

The court held that the Basson sureties failed to provide a satisfactory explanation for their default in filing a plea and for the delay in bringing the rescission applications. The fraud defence raised in the second rescission application was not supported by sufficient facts and could have been raised earlier, rendering the second application an abuse of process. The cession agreement was found to be genuine and lawful, with Investec having the contractual right to cede its claim to OPPL, which paid the purchase price via a loan from Orcrest. The court found no legal basis to disregard the cession or to infer fraud. The appeals were dismissed, and the sequestration orders and dismissal...

Citation
[2016] ZAWCHC 111
Parties
Appellant: Hendrik Johannes Basson NO; Appellant: Karin Basson NO; Appellant: Fredrik Johannes Basson NO; Appellant: Wilhelm Johannes Basson NO; Appellant: Elizabeth Marlene Basson NO; Appellant: Wilhelm Johannes Basson; Appellant: Hendrik Johannes Basson; Appellant: Karin Basson; Respondent: Orcrest Properties (Pty) Ltd
Court
Western Cape High Court, Cape Town
Jurisdiction
South Africa
Judgment Date
2 September 2016
Case Number
A466/15, A467/15, A468/15
Procedural Posture
Civil Appeal / Appeal Against Final Sequestration Orders and Dismissal of Rescission Applications
Outcome
Appeals dismissed with costs, including costs of two counsel.
Judges
Desai, Rogers, Mantame
Legal Topics
Sequestration, Rescission of Judgment, Suretyship, Cession, Abuse of Process, Contribution Among Sureties
Civil Procedure Commercial and Corporate Sequestration Rescission of Judgment Suretyship Cession Abuse of Process Contribution Among Sureties

Case Brief

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Parties

Hendrik Johannes Basson NO

Appellant

Karin Basson NO

Appellant

Fredrik Johannes Basson NO

Appellant

Wilhelm Johannes Basson NO

Appellant

Elizabeth Marlene Basson NO

Appellant

Wilhelm Johannes Basson

Appellant

Hendrik Johannes Basson

Appellant

Karin Basson

Appellant

Orcrest Properties (Pty) Ltd

Respondent

Procedural Posture

Civil Appeal / Appeal Against Final Sequestration Orders and Dismissal of Rescission Applications

Legal Issues

  1. 1 Whether the Basson sureties provided a satisfactory explanation for their default in filing a plea.
  2. 2 Whether the delay in bringing the rescission applications was reasonable and justified.
  3. 3 Whether the cession agreement relied upon by the respondent was a sham and constituted fraud.

Ratio Decidendi

The court held that the Basson sureties failed to provide a satisfactory explanation for their default in filing a plea and for the delay in bringing the rescission applications. The fraud defence raised in the second rescission application was not supported by sufficient facts and could have been raised earlier, rendering the second application an abuse of process. The cession agreement was found to be genuine and lawful, with Investec having the contractual right to cede its claim to OPPL, which paid the purchase price via a loan from Orcrest. The court found no legal basis to disregard the cession or to infer fraud. The appeals were dismissed, and the sequestration orders and dismissal...

Court Disposition

Appeals dismissed with costs, including costs of two counsel.

Orders

  • The appeals are dismissed with costs, including those attendant on the employment of two counsel.