Shackleton Credit Management (Pty) Ltd v Mashabane and Another (17571/2015) [2016] ZAGPPHC 635 (4 March 2016)

Shackleton Credit Management (Pty) Ltd v Mashabane and Another (17571/2015) [2016] ZAGPPHC 635 (4 March 2016)

The court found that the applicant had locus standi to bring the sequestration application without formal substitution, as the cession of judgment did not amount to a change of status requiring substitution under Rule 15. The points in limine regarding execution against the co-defendant and non-joinder of Harraxel Enterprises CC were dismissed, as the applicant was entitled to pursue any co-debtor for the joint debt. The master's certificate had in fact been filed, and the point was abandoned. The defence based on the Matrimonial Property Act was rejected, as the suretyship was signed in the ordinary course of business and BMW Financial Services could not reasonably have known that...

Citation
[2016] ZAGPPHC 635
Parties
Applicant: Shackleton Credit Management (Pty) Ltd; Respondent: Rexon Khegele Mashabane; Respondent: Bongeka Adelaide Mashabane
Court
North Gauteng High Court, Pretoria
Jurisdiction
South Africa
Judgment Date
4 March 2016
Case Number
17571/2015
Procedural Posture
Sequestration Application / Final Order
Outcome
Final sequestration order granted against both respondents.
Judges
SA Thobane
Legal Topics
Sequestration, Act of Insolvency, Cession of Judgment, Suretyship, Matrimonial Property Act, Advantage to Creditors
Civil Procedure Banking and Finance Sequestration Act of Insolvency Cession of Judgment Suretyship Matrimonial Property Act Advantage to Creditors

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Parties

Shackleton Credit Management (Pty) Ltd

Applicant

Rexon Khegele Mashabane

Respondent

Bongeka Adelaide Mashabane

Respondent

Procedural Posture

Sequestration Application / Final Order

Legal Issues

  1. 1 Whether the applicant had locus standi to bring the sequestration application without formal substitution after cession of judgment.
  2. 2 Whether the applicant was required to execute against the co-defendant or join Harraxel Enterprises CC.
  3. 3 Whether the applicant complied with section 9 of the Insolvency Act regarding the master's certificate.

Ratio Decidendi

The court found that the applicant had locus standi to bring the sequestration application without formal substitution, as the cession of judgment did not amount to a change of status requiring substitution under Rule 15. The points in limine regarding execution against the co-defendant and non-joinder of Harraxel Enterprises CC were dismissed, as the applicant was entitled to pursue any co-debtor for the joint debt. The master's certificate had in fact been filed, and the point was abandoned. The defence based on the Matrimonial Property Act was rejected, as the suretyship was signed in the ordinary course of business and BMW Financial Services could not reasonably have known that...

Court Disposition

Final sequestration order granted against both respondents.

Orders

  • The four points in limine are dismissed.
  • A final sequestration order is granted in respect of Rexon Khegele Mashabane and Bongeka Adelaide Mashabane.