Marishane and Another v Body Corporate of Mont Rouge A1 (78076/2015) [2018] ZAGPPHC 736 (29 March 2018)

Marishane and Another v Body Corporate of Mont Rouge A1 (78076/2015) [2018] ZAGPPHC 736 (29 March 2018)

The court found that service of the provisional sequestration order on SARS was effected, as evidenced by the reference number and signature of a SARS official, despite the stamp being unclear. The requirements of rule 11(2A)(c) of the Insolvency Act were satisfied. The court held that the appropriate procedure for challenging the order was rescission, not appeal, as the order was not erroneously granted and was susceptible to being revisited. The applicants failed to meet the threshold for leave to appeal under Section 17 of the Superior Courts Act, as there was no reasonable prospect of success or compelling reason for the appeal. The application for leave to appeal was dismissed. The...

Citation
[2018] ZAGPPHC 736
Parties
Applicant: Mamorongwa Clara Marishane; Applicant: Tsogwane Ovid Marishane; Respondent: Body Corporate of Mont Rouge A1
Court
North Gauteng High Court, Pretoria
Jurisdiction
South Africa
Judgment Date
29 March 2018
Case Number
78076/2015
Procedural Posture
Leave to Appeal / Application for Leave to Appeal Against Confirmation of Final Sequestration Order
Outcome
Application for leave to appeal dismissed with costs.
Judges
Kooverjie
Legal Topics
Sequestration Procedure, Service of Process, Leave to Appeal, Costs Orders
Civil Procedure Sequestration Procedure Service of Process Leave to Appeal Costs Orders

Case Brief

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Parties

Mamorongwa Clara Marishane

Applicant

Tsogwane Ovid Marishane

Applicant

Body Corporate of Mont Rouge A1

Respondent

Procedural Posture

Leave to Appeal / Application for Leave to Appeal Against Confirmation of Final Sequestration Order

Legal Issues

  1. 1 Whether the provisional sequestration order was properly served on SARS as required by rule 11(2A)(c) of the Insolvency Act and the Practice Directive.
  2. 2 Whether failure to serve SARS constitutes fatal non-compliance justifying leave to appeal.
  3. 3 Whether the appeal procedure was appropriate or whether rescission should have been sought first.

Ratio Decidendi

The court found that service of the provisional sequestration order on SARS was effected, as evidenced by the reference number and signature of a SARS official, despite the stamp being unclear. The requirements of rule 11(2A)(c) of the Insolvency Act were satisfied. The court held that the appropriate procedure for challenging the order was rescission, not appeal, as the order was not erroneously granted and was susceptible to being revisited. The applicants failed to meet the threshold for leave to appeal under Section 17 of the Superior Courts Act, as there was no reasonable prospect of success or compelling reason for the appeal. The application for leave to appeal was dismissed. The...

Court Disposition

Application for leave to appeal dismissed with costs.

Orders

  • The application for leave to appeal is dismissed with costs, which costs the applicants are ordered to pay jointly and severally, the one paying and the other to be absolved.