Pollock N.O and Others v Nesane and Others [2023] ZAGPPHC 430; 2020/56445 (18 May 2023)

Pollock N.O and Others v Nesane and Others [2023] ZAGPPHC 430; 2020/56445 (18 May 2023)

The application for postponement was dismissed because it was not bona fide, lacked a full and satisfactory explanation, and failed to address essential requirements such as prospects of success and merits. The respondents did not provide affidavits in support of their postponement application, and the time used for the postponement could have been used to file answering affidavits. The main application under section 31 of the Insolvency Act was unopposed, and the applicants had complied with all statutory requirements. The court set aside the dispositions made by Vele Investments (in liquidation) to the respondents, ordered repayment of the amounts, imposed penalties under section 31(2),...

Citation
[2023] ZAGPPHC 430
Parties
Applicant: Richard Keay Pollock N.O.; Applicant: Nurjehan Abdool Gafmr Omar N.O.; Applicant: Oscar Jabulani Sithole N.O.; Applicant: Ignatious Clement Mikateko Shirelele; Applicant: Mitchele Schutte N.O.; Applicant: Vele Investments (Pty) Ltd (in liquidation); Respondent: Thifhelimbilu Ernest Nesane; Respondent: Rudzani Morris Nndwammbi; Respondent: Parallel Property Holdings (Pty) Ltd; Respondent: Tshianne Onica Nesane; Respondent: Azimbo Lodge Close Corporation; Respondent: Paul Magula; Respondent: Hekima Capital (Pty) Ltd; Respondent: Investar Connect Holdings (Pty) Ltd
Court
North Gauteng High Court, Pretoria
Jurisdiction
South Africa
Judgment Date
18 May 2023
Case Number
2020/56445
Procedural Posture
Insolvency Application / Unopposed Motion Roll; Application for Postponement Dismissed; Main Application Decided
Outcome
Application for postponement dismissed with costs; main application granted in favour of applicants.
Judges
Mokose
Legal Topics
Insolvency Act Section 31, Setting Aside Dispositions, Joint and Several Liability, Penalty Award, Costs on Attorney and Own Client Scale
Civil Procedure Commercial and Corporate Insolvency Act Section 31 Setting Aside Dispositions Joint and Several Liability Penalty Award Costs on Attorney and Own Client Scale

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Parties

Richard Keay Pollock N.O.

Applicant

Nurjehan Abdool Gafmr Omar N.O.

Applicant

Oscar Jabulani Sithole N.O.

Applicant

Ignatious Clement Mikateko Shirelele

Applicant

Mitchele Schutte N.O.

Applicant

Vele Investments (Pty) Ltd (in liquidation)

Applicant

Thifhelimbilu Ernest Nesane

Respondent

Rudzani Morris Nndwammbi

Respondent

Parallel Property Holdings (Pty) Ltd

Respondent

Tshianne Onica Nesane

Respondent

Azimbo Lodge Close Corporation

Respondent

Paul Magula

Respondent

Hekima Capital (Pty) Ltd

Respondent

Investar Connect Holdings (Pty) Ltd

Respondent

Procedural Posture

Insolvency Application / Unopposed Motion Roll; Application for Postponement Dismissed; Main Application Decided

Legal Issues

  1. 1 Whether the disposition of funds by Vele Investments (in liquidation) to the respondents should be set aside under section 31 of the Insolvency Act.
  2. 2 Whether the respondents are jointly and severally liable to repay the amounts received and pay a penalty under section 31(2) of the Insolvency Act.
  3. 3 Whether the application for postponement by the first to fifth respondents should be granted.

Ratio Decidendi

The application for postponement was dismissed because it was not bona fide, lacked a full and satisfactory explanation, and failed to address essential requirements such as prospects of success and merits. The respondents did not provide affidavits in support of their postponement application, and the time used for the postponement could have been used to file answering affidavits. The main application under section 31 of the Insolvency Act was unopposed, and the applicants had complied with all statutory requirements. The court set aside the dispositions made by Vele Investments (in liquidation) to the respondents, ordered repayment of the amounts, imposed penalties under section 31(2),...

Court Disposition

Application for postponement dismissed with costs; main application granted in favour of applicants.

Orders

  • The disposition of R5,600,000.00 from Vele Investments (in liquidation) to any one or more of the first to fifth respondents is set aside under section 31 of the Insolvency Act.
  • The first to fifth respondents shall, jointly and severally, pay R5,600,000.00 to the applicants.