Cloete NO and Others v Basson and Others (61907/09) [2010] ZAGPJHC 87 (4 October 2010)

Cloete NO and Others v Basson and Others (61907/09) [2010] ZAGPJHC 87 (4 October 2010)

The court found that while the original ex parte urgent order was justified by the applicants' allegations of unlawful business practices and the need to protect the estate, the order was too restrictive and impacted the respondents' rights excessively. The respondents were entitled to reconsideration under Rule...

Source-derived case information.

Citation
[2010] ZAGPJHC 87
Parties
Applicant: Cornelia Maria Cloete N.O.; Applicant: Harry Kaplan N.O.; Applicant: Anna Paula De Oliveira N.O.; Applicant: Sophie Mmapula Poopedi N.O.; Respondent: Michael Mattheus Basson; Respondent: Vanessa Maria Julia Basson; Respondent: Ian Bruce Lockyer
Court
South Gauteng High Court, Johannesburg
Jurisdiction
South Africa
Judgment Date
4 October 2010
Case Number
61907/09
Procedural Posture
Urgent Application / Reconsideration of Ex Parte Urgent Order
Outcome
Order amended to allow respondents reasonable access to assets; costs reserved.
Judges
Goodey AJ
Legal Topics
Rule 6 12 C Reconsideration, Mareva Injunction, Audi Alteram Partem, Harmful Business Practices, Banking Regulation
Civil Procedure Commercial and Corporate Rule 6 12 C Reconsideration Mareva Injunction Audi Alteram Partem Harmful Business Practices Banking Regulation

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Summary, issues, holding and outcome

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Parties

Cornelia Maria Cloete N.O.

Applicant

Harry Kaplan N.O.

Applicant

Anna Paula De Oliveira N.O.

Applicant

Sophie Mmapula Poopedi N.O.

Applicant

Michael Mattheus Basson

Respondent

Vanessa Maria Julia Basson

Respondent

Ian Bruce Lockyer

Respondent

Procedural Posture

Urgent Application / Reconsideration of Ex Parte Urgent Order

Legal Issues

  1. 1 Whether the ex parte urgent order granted on 30 August 2010 should be reconsidered and amended.
  2. 2 Whether the original order unduly infringed the respondents' rights and freedoms.
  3. 3 Whether the requirements for urgency and relief under Rule 6(12)(c) were met.

Ratio Decidendi

The court found that while the original ex parte urgent order was justified by the applicants' allegations of unlawful business practices and the need to protect the estate, the order was too restrictive and impacted the respondents' rights excessively. The respondents were entitled to reconsideration under Rule 6(12)(c), and the court exercised its discretion to amend the order to allow respondents reasonable access to their assets for living, legal, and business expenses, subject to the applicants' written consent, which must not be unreasonably withheld. The court reserved costs and amended the order to balance the interests of justice and the rights of both parties.

Court Disposition

Order amended to allow respondents reasonable access to assets; costs reserved.

Orders

  • Paragraphs 3.2.1 and 3.2.2 of the order of 30 August 2010 are replaced to prohibit respondents from selling, alienating, or encumbering significant assets (over R80,000) without prior written consent of the applicants, which shall not be unreasonably withheld.
  • Respondents are entitled to pay reasonable living, legal, and business expenses from their assets in the ordinary course of business.