Pollock N.O and Others v Makhavhu (1812/2022) [2024] ZALMPTHC 14 (16 February 2024)

Pollock N.O and Others v Makhavhu (1812/2022) [2024] ZALMPTHC 14 (16 February 2024)

The court found that Vele Investments was insolvent at all relevant times and that the payments made to the Respondent were dispositions without value under section 26(1) of the Insolvency Act. The Respondent failed to provide evidence of services rendered to Vele Petroport or any legal basis for Vele Investments to assume Vele Petroport's obligations. The Respondent's explanations regarding the relationship between Vele Investments and Vele Petroport were inconsistent and unsupported. The Respondent did not discharge the onus to prove that Vele Investments was solvent after each payment. The application for postponement was refused as it was not made timeously or bona fide, and the...

Citation
[2024] ZALMPTHC 14
Parties
Applicant: Richard Keay Pollock N.O; Applicant: Nurjehan Abdool Gafaar Omar N.O; Applicant: Oscar Jabulani Sithole N.O; Applicant: Ignatius Clement Mikateko Shirilele N.O; Applicant: Michelle Schutte N.O; Applicant: Vele Investments (Pty) Limited (in liquidation); Respondent: Paul Makhavhu
Court
Limpopo High Court, Thohoyandou
Jurisdiction
South Africa
Judgment Date
16 February 2024
Case Number
1812/2022
Procedural Posture
Civil Application / Judgment After Opposed Motion
Outcome
Application granted. The payments made by Vele Investments to the Respondent are declared dispositions without value and set aside. The Respondent is ordered to repay the amounts with interest and pay costs including costs of two counsel.
Judges
IM Khosa
Legal Topics
Insolvency Act Section 26, Dispositions Without Value, Liquidation, Unjustified Enrichment, Postponement, Non Joinder
Banking and Finance Civil Procedure Insolvency Act Section 26 Dispositions Without Value Liquidation Unjustified Enrichment Postponement Non Joinder

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Parties

Richard Keay Pollock N.O

Applicant

Nurjehan Abdool Gafaar Omar N.O

Applicant

Oscar Jabulani Sithole N.O

Applicant

Ignatius Clement Mikateko Shirilele N.O

Applicant

Michelle Schutte N.O

Applicant

Vele Investments (Pty) Limited (in liquidation)

Applicant

Paul Makhavhu

Respondent

Procedural Posture

Civil Application / Judgment After Opposed Motion

Legal Issues

  1. 1 Whether the payments made by Vele Investments to the Respondent are dispositions without value under section 26(1) of the Insolvency Act and liable for repayment.
  2. 2 Whether the Respondent was unjustly enriched at the expense of Vele Investments, warranting repayment.
  3. 3 Whether the application for postponement should be granted.

Ratio Decidendi

The court found that Vele Investments was insolvent at all relevant times and that the payments made to the Respondent were dispositions without value under section 26(1) of the Insolvency Act. The Respondent failed to provide evidence of services rendered to Vele Petroport or any legal basis for Vele Investments to assume Vele Petroport's obligations. The Respondent's explanations regarding the relationship between Vele Investments and Vele Petroport were inconsistent and unsupported. The Respondent did not discharge the onus to prove that Vele Investments was solvent after each payment. The application for postponement was refused as it was not made timeously or bona fide, and the...

Court Disposition

Application granted. The payments made by Vele Investments to the Respondent are declared dispositions without value and set aside. The Respondent is ordered to repay the amounts with interest and pay costs including costs of two counsel.

Orders

  • The application for postponement is refused with costs.
  • The point in limine of non-joinder of Vele Petroport is dismissed.