Diseko v Anthony Berlowitz Attorneys and Others (1580/2020) [2022] ZAFSHC 231 (7 September 2022)

Diseko v Anthony Berlowitz Attorneys and Others (1580/2020) [2022] ZAFSHC 231 (7 September 2022)

The court found that the applicant was properly cited as a party in both the business rescue and leave to appeal applications and had signed a confirmatory affidavit, confirming her participation and legal representation. The applicant's locus standi as an affected person under section 128(1)(a) of the Companies Act was established, and there was no evidence that the mandate of the First Respondent was challenged during the proceedings. The court held that the absence of a mandate was not a fact brought to its attention and, therefore, could not render the orders erroneous. The proceedings were motion proceedings, adjudicated on affidavits, and the applicant was considered present through...

Citation
[2022] ZAFSHC 231
Parties
Applicant: Neo Khumo Diseko; Respondent: Anthony Berlowitz Attorneys; Respondent: Voltex (Pty) Ltd t/a Lighting Structures and Atlas Group; Respondent: ABSA Bank; Respondent: Theresa van der Merwe
Court
Free State High Court, Bloemfontein
Jurisdiction
South Africa
Judgment Date
7 September 2022
Case Number
1580/2020
Procedural Posture
Rescission Application / Judgment
Outcome
Application for rescission dismissed with costs.
Judges
Molitsoane
Legal Topics
Rescission of Judgment, Costs Orders, Rule 42, Locus Standi
Civil Procedure Rescission of Judgment Costs Orders Rule 42 Locus Standi

Case Brief

Summary, issues, holding and outcome

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Parties

Neo Khumo Diseko

Applicant

Anthony Berlowitz Attorneys

Respondent

Voltex (Pty) Ltd t/a Lighting Structures and Atlas Group

Respondent

ABSA Bank

Respondent

Theresa van der Merwe

Respondent

Procedural Posture

Rescission Application / Judgment

Legal Issues

  1. 1 Whether the cost orders granted against the applicant were erroneously sought or granted in her absence.
  2. 2 Whether the applicant had locus standi as an affected person under the Companies Act.
  3. 3 Whether the absence of a mandate to the First Respondent to represent the applicant renders the cost orders erroneous.

Ratio Decidendi

The court found that the applicant was properly cited as a party in both the business rescue and leave to appeal applications and had signed a confirmatory affidavit, confirming her participation and legal representation. The applicant's locus standi as an affected person under section 128(1)(a) of the Companies Act was established, and there was no evidence that the mandate of the First Respondent was challenged during the proceedings. The court held that the absence of a mandate was not a fact brought to its attention and, therefore, could not render the orders erroneous. The proceedings were motion proceedings, adjudicated on affidavits, and the applicant was considered present through...

Court Disposition

Application for rescission dismissed with costs.

Orders

  • The application is dismissed.
  • The applicant is ordered to pay the costs of the First Respondent.