Jeewa and Another v Strydom N.O. and Others; In re: Strydom N.O and Others v Jeewa ans Another (55407/15) [2018] ZAGPPHC 259 (25 January 2018)

Jeewa and Another v Strydom N.O. and Others; In re: Strydom N.O and Others v Jeewa ans Another (55407/15) [2018] ZAGPPHC 259 (25 January 2018)

The court found that although the incorrect deed of cession was attached to the founding affidavit in the main sequestration application, the applicants failed to demonstrate good cause for rescission. The first respondent did not deny indebtedness to CMM based on the RMF cession, nor did she state that the order would not have been granted had the correct cession been annexed. The respondents raised different defences at various stages, none of which constituted a bona fide defence to the claim. The absence of the respondents at the return date and their failure to set out a valid defence meant that the requirements for rescission under common law and Rule 42(1)(a) were not met. However,...

Citation
[2018] ZAGPPHC 259
Parties
Applicant: Fatima Bibi Farbarook Jeewa; Applicant: Amjad Mahmood; Respondent: Pieter H Strydom N.O.; Respondent: John RG Polson N.O.; Respondent: Louis Strydom N.O.
Court
North Gauteng High Court, Pretoria
Jurisdiction
South Africa
Judgment Date
25 January 2018
Case Number
55407/15
Procedural Posture
Review Application / Application for Rescission of Final Sequestration Order
Outcome
Application for rescission dismissed with costs as against the first applicant; granted as against the second applicant.
Judges
Nair
Legal Topics
Rescission of Judgment, Sequestration, Rule 42 Uniform Rules, Bona Fide Defence, Community of Property
Civil Procedure Rescission of Judgment Sequestration Rule 42 Uniform Rules Bona Fide Defence Community of Property

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 5 Authorities cited 11 Party arguments 2 Amounts and remedies 3
Sign in to unlock

Parties

Fatima Bibi Farbarook Jeewa

Applicant

Amjad Mahmood

Applicant

Pieter H Strydom N.O.

Respondent

John RG Polson N.O.

Respondent

Louis Strydom N.O.

Respondent

Procedural Posture

Review Application / Application for Rescission of Final Sequestration Order

Legal Issues

  1. 1 Whether the final sequestration order should be rescinded due to an erroneous attachment of the deed of cession.
  2. 2 Whether the applicants have shown good cause and a bona fide defence for rescission under common law and Rule 42(1)(a).
  3. 3 Whether the absence of the respondents at the return date justifies the confirmation of the sequestration order.

Ratio Decidendi

The court found that although the incorrect deed of cession was attached to the founding affidavit in the main sequestration application, the applicants failed to demonstrate good cause for rescission. The first respondent did not deny indebtedness to CMM based on the RMF cession, nor did she state that the order would not have been granted had the correct cession been annexed. The respondents raised different defences at various stages, none of which constituted a bona fide defence to the claim. The absence of the respondents at the return date and their failure to set out a valid defence meant that the requirements for rescission under common law and Rule 42(1)(a) were not met. However,...

Court Disposition

Application for rescission dismissed with costs as against the first applicant; granted as against the second applicant.

Orders

  • In respect of the First Applicant, the application is dismissed with costs including costs of counsel.
  • In respect of the Second Applicant, the application is granted and the sequestration order granted on 27 October 2016 as against the Second Applicant only is rescinded.