Interwaste (PTY) Ltd and Another v ABSA Bank Ltd and Others (24005/2022) [2022] ZAGPJHC 607 (26 August 2022)

Interwaste (PTY) Ltd and Another v ABSA Bank Ltd and Others (24005/2022) [2022] ZAGPJHC 607 (26 August 2022)

The applicants failed to demonstrate that the funds in the accounts of the tenth and thirteenth respondents are identifiable as proceeds of fraud or theft. The evidence does not establish a quasi-vindicatory claim against these respondents, nor does it show that any amounts in their accounts are part of the stolen funds. The payments received by the tenth and thirteenth respondents were either in the ordinary course of family relationships or as part of a divorce settlement, and cannot be positively identified as stolen. The continued application of the anti-dissipation order to these respondents is unjustified and constitutes an abuse of process. The order must be reconsidered and set...

Citation
[2022] ZAGPJHC 607
Parties
Applicant: Interwaste (PTY) Ltd; Applicant: Green’s Scrap Recycling (PTY) Ltd; Respondent: ABSA Bank Ltd; Respondent: Standard Bank of South Africa; Respondent: Firstrand Limited t/a First National Bank; Respondent: Discovery Bank Limited; Respondent: Capitec Bank Limited; Respondent: Nedbank Limited; Respondent: Thelma Viljoen; Respondent: Charmonique Watson; Respondent: Nadya El-Qaissi; Respondent: Shane Viljoen; Respondent: Maryna Watson; Respondent: Alfonso Samuels; Respondent: Sharne Viljoen
Court
South Gauteng High Court, Johannesburg
Jurisdiction
South Africa
Judgment Date
26 August 2022
Case Number
24005/2022
Procedural Posture
Urgent Application / Reconsideration of Ex Parte Anti Dissipation Order Under Rule 6(12)(c)
Outcome
The reconsideration application is granted; the anti-dissipation order is set aside in respect of the tenth and thirteenth respondents.
Judges
M A Makume
Legal Topics
Anti Dissipation Order, Rule 6 12 C Reconsideration, Quasi Vindicatory Claim, Interdict, Fraudulent Transfer
Civil Procedure Banking and Finance Anti Dissipation Order Rule 6 12 C Reconsideration Quasi Vindicatory Claim Interdict Fraudulent Transfer

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Parties

Interwaste (PTY) Ltd

Applicant

Green’s Scrap Recycling (PTY) Ltd

Applicant

ABSA Bank Ltd

Respondent

Standard Bank of South Africa

Respondent

Firstrand Limited t/a First National Bank

Respondent

Discovery Bank Limited

Respondent

Capitec Bank Limited

Respondent

Nedbank Limited

Respondent

Thelma Viljoen

Respondent

Charmonique Watson

Respondent

Nadya El-Qaissi

Respondent

Shane Viljoen

Respondent

Maryna Watson

Respondent

Alfonso Samuels

Respondent

Sharne Viljoen

Respondent

Procedural Posture

Urgent Application / Reconsideration of Ex Parte Anti Dissipation Order Under Rule 6(12)(c)

Legal Issues

  1. 1 Whether the anti-dissipation order should continue to apply to the tenth and thirteenth respondents.
  2. 2 Whether the applicants have established a quasi-vindicatory claim against the tenth and thirteenth respondents.
  3. 3 Whether the funds in the accounts of the tenth and thirteenth respondents are identifiable as proceeds of fraud.

Ratio Decidendi

The applicants failed to demonstrate that the funds in the accounts of the tenth and thirteenth respondents are identifiable as proceeds of fraud or theft. The evidence does not establish a quasi-vindicatory claim against these respondents, nor does it show that any amounts in their accounts are part of the stolen funds. The payments received by the tenth and thirteenth respondents were either in the ordinary course of family relationships or as part of a divorce settlement, and cannot be positively identified as stolen. The continued application of the anti-dissipation order to these respondents is unjustified and constitutes an abuse of process. The order must be reconsidered and set...

Court Disposition

The reconsideration application is granted; the anti-dissipation order is set aside in respect of the tenth and thirteenth respondents.

Orders

  • The order granted on 13 July 2022 by Manoim J is reconsidered in accordance with Rule 6(12)(c) of the Uniform Rules of Court.
  • Paragraphs 2.1.5 and 2.5.2 of the order are deleted insofar as they relate to the tenth and thirteenth respondents.