Makgoba and Others v Klopper and Others (81488/15) [2019] ZAGPPHC 190 (29 April 2019)

Makgoba and Others v Klopper and Others (81488/15) [2019] ZAGPPHC 190 (29 April 2019)

The court found that the applicants failed to provide credible evidence that the eviction order was not granted on 30 January 2017 or that the postponement order was valid. The eviction order was the only order registered on the court system and was acted upon by the sheriff. The applicants did not establish any uncertainty as to its status. The allegations of fraud, dishonesty, and conflict of interest against the first respondent were unsupported by evidence. The dual role of trustee and business rescue practitioner did not, in itself, constitute a disqualifying conflict of interest under the Insolvency Act, especially as there was only one proven creditor. No misconduct or undue...

Citation
[2019] ZAGPPHC 190
Parties
Applicant: Hendrick Khalime Makgoba; Applicant: Lerato Joyce Eleanor Makgoba; Applicant: Occupants of Erf 3709 Atteridgeville; Respondent: Johanned Frederick Klopper; Respondent: Phahlaphahlahumphreylebede; Respondent: Aviwe Ntandazo Ndyamara NO (in her capacity as the duly appointed Trustee of the HK and LJE Family Trust)
Court
North Gauteng High Court, Pretoria
Jurisdiction
South Africa
Judgment Date
29 April 2019
Case Number
81488/15
Procedural Posture
Review Application / Application for Rescission of Eviction Order
Outcome
Application for rescission dismissed with costs.
Judges
AE Andrews
Legal Topics
Rescission of Judgment, Eviction, Conflict of Interest, Trusteeship in Insolvency, Condonation, Fraud and Dishonesty
Civil Procedure Land and Property Rescission of Judgment Eviction Conflict of Interest Trusteeship in Insolvency Condonation Fraud and Dishonesty

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Parties

Hendrick Khalime Makgoba

Applicant

Lerato Joyce Eleanor Makgoba

Applicant

Occupants of Erf 3709 Atteridgeville

Applicant

Johanned Frederick Klopper

Respondent

Phahlaphahlahumphreylebede

Respondent

Aviwe Ntandazo Ndyamara NO (in her capacity as the duly appointed Trustee of the HK and LJE Family Trust)

Respondent

Procedural Posture

Review Application / Application for Rescission of Eviction Order

Legal Issues

  1. 1 Whether the eviction order granted on 30 January 2017 should be rescinded and set aside.
  2. 2 Whether condonation for late filing of the rescission application should be granted.
  3. 3 Whether the applicants have established fraud, dishonesty, or conflict of interest sufficient to justify rescission.

Ratio Decidendi

The court found that the applicants failed to provide credible evidence that the eviction order was not granted on 30 January 2017 or that the postponement order was valid. The eviction order was the only order registered on the court system and was acted upon by the sheriff. The applicants did not establish any uncertainty as to its status. The allegations of fraud, dishonesty, and conflict of interest against the first respondent were unsupported by evidence. The dual role of trustee and business rescue practitioner did not, in itself, constitute a disqualifying conflict of interest under the Insolvency Act, especially as there was only one proven creditor. No misconduct or undue...

Court Disposition

Application for rescission dismissed with costs.

Orders

  • The application for rescission of the eviction order is dismissed.
  • The applicants are ordered to pay the costs of the application.