Plumb on Plumbers v Lauderdale and Another (8331/12) [2012] ZAKZDHC 62; 2013 (1) SA 60 (KZD) (15 October 2012)

Plumb on Plumbers v Lauderdale and Another (8331/12) [2012] ZAKZDHC 62; 2013 (1) SA 60 (KZD) (15 October 2012)

The court found that the founding affidavit in the present application, as well as those in numerous other sequestration matters from the same firm of attorneys, contained identical allegations and documents, some of which were not supported by the instructions to counsel. The similarities and use of precedents undermined the reliability of the evidence, and the court had no confidence that the affidavit contained entirely accurate allegations. The practice amounted to an abuse of process, particularly in the context of friendly sequestrations. The requirements set out in Mthimkhulu v Rampersad and Another were not followed. Accordingly, the court refused to confirm the rule nisi and...

Citation
[2012] ZAKZDHC 62
Parties
Applicant: Plumb on Plumbers; Respondent: Trevor Lauderdale; Respondent: Natasha Katherine Lauderdale
Court
Kwazulu-Natal High Court, Durban
Jurisdiction
South Africa
Judgment Date
15 October 2012
Case Number
8331/12
Procedural Posture
Civil Application / Return Day of Provisional Sequestration Order
Outcome
The rule nisi issued on 20 August 2012 is discharged. The matter is referred to the Law Society and the Society of Advocates for further investigation. The applicant is not to bear any costs in relation to the application prior to the withdrawal of its erstwhile attorneys.
Judges
Lopes
Legal Topics
Sequestration, Friendly Sequestration, Affidavit Evidence, Abuse of Process
Civil Procedure Sequestration Friendly Sequestration Affidavit Evidence Abuse of Process

Case Brief

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Parties

Plumb on Plumbers

Applicant

Trevor Lauderdale

Respondent

Natasha Katherine Lauderdale

Respondent

Procedural Posture

Civil Application / Return Day of Provisional Sequestration Order

Legal Issues

  1. 1 Whether the founding affidavit in the present application contains allegations which are entirely accurate and reliable.
  2. 2 Whether the practice of using identical allegations and documents across multiple sequestration applications constitutes an abuse of process.
  3. 3 Whether the requirements set out in Mthimkhulu v Rampersad and Another were followed in the preparation of the affidavits.

Ratio Decidendi

The court found that the founding affidavit in the present application, as well as those in numerous other sequestration matters from the same firm of attorneys, contained identical allegations and documents, some of which were not supported by the instructions to counsel. The similarities and use of precedents undermined the reliability of the evidence, and the court had no confidence that the affidavit contained entirely accurate allegations. The practice amounted to an abuse of process, particularly in the context of friendly sequestrations. The requirements set out in Mthimkhulu v Rampersad and Another were not followed. Accordingly, the court refused to confirm the rule nisi and...

Court Disposition

The rule nisi issued on 20 August 2012 is discharged. The matter is referred to the Law Society and the Society of Advocates for further investigation. The applicant is not to bear any costs in relation to the application prior to the withdrawal of its erstwhile attorneys.

Orders

  • The rule nisi issued on 20 August 2012 is discharged.
  • This judgment, the affidavits furnished by the applicant’s erstwhile attorney, and the matters referred to above are referred to the Law Society and the Society of Advocates for further investigation and for the taking of whatever steps those organisations may deem appropriate.