Limbada and Another v Aurora Empowerment Systems (Pty) Ltd and Others; In re: Aurora Empowerment Systems (Pty) Ltd v Limbada and Others (50016/2012) [2015] ZAGPPHC 652 (8 September 2015)
The court found that the applicants were represented at the hearing and that the judgment was not granted in their absence, thus Rule 31(2)(b) and Rule 42(1)(a) do not apply. The applicants failed to show good cause for rescission of the entire judgment, as their explanation for default was insufficient and they admitted receiving the payments. However, the court accepted that the applicants had repaid R1 million each, which was not disclosed in the liquidators' affidavits and was undisputed. Accordingly, the court exercised its discretion to grant partial rescission of the judgment to the extent of the repayments made, reducing the amounts owed and adjusting the interest rates. Each...
- Citation
- [2015] ZAGPPHC 652
- Parties
- Applicant: Mohamed Firoze Limbada; Applicant: Zeenat Ebrahim Laher; Respondent: Aurora Empowerment Systems (Pty) Ltd (in liquidation); Respondent: Faizel Bhana; Respondent: Sulliman Bhana
- Court
- North Gauteng High Court, Pretoria
- Jurisdiction
- South Africa
- Judgment Date
- 8 September 2015
- Case Number
- 50016/2012
- Procedural Posture
- Rescission Application / Application for Rescission of Judgment Following Default Judgment and Refusal of Leave to Appeal
- Outcome
- Application for rescission of judgment granted in part; judgment reduced to reflect repayments made by applicants; each party to pay its own costs.
- Judges
- E Bertelsmann
- Legal Topics
- Rescission of Judgment, Insolvency Act Section 26, Undue Preference, Collusive Dealing, Common Law Fraud, Partial Rescission
Case Brief
Summary, issues, holding and outcome
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Parties
Mohamed Firoze Limbada
Applicant
Zeenat Ebrahim Laher
Applicant
Aurora Empowerment Systems (Pty) Ltd (in liquidation)
Respondent
Faizel Bhana
Respondent
Sulliman Bhana
Respondent
Procedural Posture
Rescission Application / Application for Rescission of Judgment Following Default Judgment and Refusal of Leave to Appeal
Legal Issues
- 1 Whether the applicants have shown good cause for rescission of the judgment granted against them.
- 2 Whether the judgment was granted in error or on incorrect facts, justifying rescission.
- 3 Whether partial repayment by the applicants entitles them to partial rescission of the judgment.
Ratio Decidendi
The court found that the applicants were represented at the hearing and that the judgment was not granted in their absence, thus Rule 31(2)(b) and Rule 42(1)(a) do not apply. The applicants failed to show good cause for rescission of the entire judgment, as their explanation for default was insufficient and they admitted receiving the payments. However, the court accepted that the applicants had repaid R1 million each, which was not disclosed in the liquidators' affidavits and was undisputed. Accordingly, the court exercised its discretion to grant partial rescission of the judgment to the extent of the repayments made, reducing the amounts owed and adjusting the interest rates. Each...
Court Disposition
Application for rescission of judgment granted in part; judgment reduced to reflect repayments made by applicants; each party to pay its own costs.
Orders
- The judgment of 26 August 2014 is rescinded to the extent that interest on the sum of R1,000,000 is awarded at 15.5% per annum until 31 July 2014 and 9% per annum from 1 August 2014, from dates of payment to the first respondent as listed in Schedule A.
- The figure of R7,100,000 in paragraph 3 of the order is substituted with R6,100,000.
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