Botha O.N. v Bassonn N.O and Another (M404/2020) [2021] ZANWHC 31 (8 June 2021)

Botha O.N. v Bassonn N.O and Another (M404/2020) [2021] ZANWHC 31 (8 June 2021)

The respondent failed to provide a full and satisfactory explanation for the delay in filing his answering affidavit, as required for condonation. The delay was substantial and not justified by the respondent's reliance on rule 35(12) or the alleged need for information. The respondent's defences—ownership of the auctioned cattle, res judicata, and bad faith liquidation—are unsupported by facts or law. The funds in question were held to the credit of Mymico Eiendomme CC and, following the lapse of the interim orders, should have been returned to the liquidators. The respondent's continued possession of the funds amounts to impermissible self-help. The application for condonation is...

Citation
[2021] ZANWHC 31
Parties
Applicant: Deon Marius Botha N.O; Applicant: Dedre Basson N.O; Respondent: Deodat Botes
Court
North West High Court, Mafikeng
Jurisdiction
South Africa
Judgment Date
8 June 2021
Case Number
M404/2020
Procedural Posture
Civil Application / Judgment on Condonation and Main Application
Outcome
Application for condonation dismissed with costs; respondent ordered to refund trust funds with interest to the liquidators' account.
Judges
M Z Makoti
Legal Topics
Condonation, Liquidation Proceedings, Trust Funds, Res Judicata, Self Help, Close Corporations Act
Civil Procedure Commercial and Corporate Condonation Liquidation Proceedings Trust Funds Res Judicata Self Help Close Corporations Act

Case Brief

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Parties

Deon Marius Botha N.O

Applicant

Dedre Basson N.O

Applicant

Deodat Botes

Respondent

Procedural Posture

Civil Application / Judgment on Condonation and Main Application

Legal Issues

  1. 1 Whether condonation should be granted for the late filing of the respondent's answering affidavit.
  2. 2 Whether the funds held in trust by the respondent's legal representatives belong to Mymico Eiendomme CC and must be returned to its liquidators.
  3. 3 Whether the respondent's defences of res judicata, ownership of auctioned cattle, and alleged bad faith liquidation are sustainable.

Ratio Decidendi

The respondent failed to provide a full and satisfactory explanation for the delay in filing his answering affidavit, as required for condonation. The delay was substantial and not justified by the respondent's reliance on rule 35(12) or the alleged need for information. The respondent's defences—ownership of the auctioned cattle, res judicata, and bad faith liquidation—are unsupported by facts or law. The funds in question were held to the credit of Mymico Eiendomme CC and, following the lapse of the interim orders, should have been returned to the liquidators. The respondent's continued possession of the funds amounts to impermissible self-help. The application for condonation is...

Court Disposition

Application for condonation dismissed with costs; respondent ordered to refund trust funds with interest to the liquidators' account.

Orders

  • The application for condonation for the late delivery of the respondent's answering affidavit is dismissed with costs.
  • The attachment of R672,863.97 pursuant to the ex parte orders granted by the Vryburg Regional Court under case number NW/VRY/RC72/2018 lapsed on 12 July 2018.