Murray NO v Ramphele (25067/2020) [2021] ZAGPPHC 615 (27 September 2021)

Murray NO v Ramphele (25067/2020) [2021] ZAGPPHC 615 (27 September 2021)

The court found that the provisional order of sequestration did not lapse merely because the matter was heard two days after the return date. The opposed motion roll operates as a continuous judicial process, and the matter was properly enrolled and before the court on the return date, merely standing down to the allocated hearing date. Even if the rule nisi had technically lapsed, the court exercised its discretion to revive it, as the matter remained res integra and there was no fault on the part of the applicant. On the constitutional argument, the court held that the respondent failed to provide factual evidence supporting the viability of less restrictive means, such as execution...

Citation
[2021] ZAGPPHC 615
Parties
Applicant: Cloete Murray N.O.; Respondent: Tshepiso David Humphrey Ramphele
Court
North Gauteng High Court, Pretoria
Jurisdiction
South Africa
Judgment Date
27 September 2021
Case Number
25067/2020
Procedural Posture
Sequestration Application / Final Order Hearing
Outcome
Final order of sequestration granted against the respondent's estate.
Judges
Sawma
Legal Topics
Final Sequestration, Rule Nisi Lapse, Judicial Discretion, Act of Insolvency, Constitutional Limitation
Civil Procedure Commercial and Corporate Final Sequestration Rule Nisi Lapse Judicial Discretion Act of Insolvency Constitutional Limitation

Case Brief

Summary, issues, holding and outcome

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Parties

Cloete Murray N.O.

Applicant

Tshepiso David Humphrey Ramphele

Respondent

Procedural Posture

Sequestration Application / Final Order Hearing

Legal Issues

  1. 1 Whether the provisional order of sequestration (rule nisi) had lapsed due to the matter being heard after the return date.
  2. 2 Whether the court should exercise its discretion to refuse a final sequestration order in favour of less restrictive means, considering constitutional principles.

Ratio Decidendi

The court found that the provisional order of sequestration did not lapse merely because the matter was heard two days after the return date. The opposed motion roll operates as a continuous judicial process, and the matter was properly enrolled and before the court on the return date, merely standing down to the allocated hearing date. Even if the rule nisi had technically lapsed, the court exercised its discretion to revive it, as the matter remained res integra and there was no fault on the part of the applicant. On the constitutional argument, the court held that the respondent failed to provide factual evidence supporting the viability of less restrictive means, such as execution...

Court Disposition

Final order of sequestration granted against the respondent's estate.

Orders

  • The estate of the respondent is placed under final sequestration.
  • The costs of this application are to be costs in the sequestration.