Theba and Others; Bhana and Others; Essay and Others; Bhana and Others v Aurora Empowerment Systems (Pty) Ltd and Others (73173/2014; 73174/2014; 73175/2014; 73763/2014) [2015] ZAGPPHC 695 (7 September 2015)

Theba and Others; Bhana and Others; Essay and Others; Bhana and Others v Aurora Empowerment Systems (Pty) Ltd and Others (73173/2014; 73174/2014; 73175/2014; 73763/2014) [2015] ZAGPPHC 695 (7 September 2015)

The applicants failed to provide any explanation for their default in the principal applications and did not establish a bona fide defence. The only issue pursued was the alleged lack of proof of insolvency, but the evidence presented by the liquidators was not seriously challenged and demonstrated that Aurora Empowerment Systems (Pty) Ltd was insolvent at all relevant times. The applicants had received substantial payments from Aurora, which had no capital or profits to lawfully make such payments. The factual assertions of insolvency were supported by admissible evidence from insolvency inquiries. The applicants' technical objections and defences were abandoned or not persisted in...

Citation
[2015] ZAGPPHC 695
Parties
Applicant: Yaseen Ashraf Theba; Applicant: Fazel Suliman Bhana; Applicant: Suliman Ahmed Bhana; Applicant: Ferosa Suliman Bhana; Applicant: Shamila Suliman Essay; Applicant: Zobeida Bhana; Respondent: Aurora Empowerment Systems (Pty) Ltd; Respondent: Christiaan Frederik De Wet; Respondent: Irene Susan Ponnen; Respondent: Pamodzi Gold East Rand (Pty) Ltd; Respondent: Nigel Gold Mining Co (Pty) Ltd; Respondent: Consolidated Modderfontein Mines Ltd; Respondent: Consolidated Modderfontein Mines 1979 (Pty) Ltd; Respondent: Grootvlei Proprietary Mines (Pty) Ltd; Respondent: Pamodzi Gold Orkney (Pty) Ltd; Respondent: Solidarity; Respondent: National Union of Mineworkers; Respondent: United Association of South Africa; Respondent: The Master of the High Court of South Africa, Gauteng Local Division, Johannesburg; Respondent: Gauteng Provincial Division, Pretoria; Respondent: The Sheriff of the High Court of South Africa for the District of Johannesburg North; Respondent: Simone Liesel Magardie
Court
North Gauteng High Court, Pretoria
Jurisdiction
South Africa
Judgment Date
7 September 2015
Case Number
73173/2014;73174/2014;73175/2014;73763/2014
Procedural Posture
Rescission Application / Judgment on Rescission Applications
Outcome
All rescission applications are dismissed with costs, including costs of two counsel, payable jointly and severally by the relevant applicants.
Judges
E Bertelsmann
Legal Topics
Insolvency, Rescission of Judgment, Dispositions Without Value, Undue Preference, Collusive Dealing, Common Law Fraud
Civil Procedure Commercial and Corporate Insolvency Rescission of Judgment Dispositions Without Value Undue Preference Collusive Dealing Common Law Fraud

Case Brief

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Parties

Yaseen Ashraf Theba

Applicant

Fazel Suliman Bhana

Applicant

Suliman Ahmed Bhana

Applicant

Ferosa Suliman Bhana

Applicant

Shamila Suliman Essay

Applicant

Zobeida Bhana

Applicant

Aurora Empowerment Systems (Pty) Ltd

Respondent

Christiaan Frederik De Wet

Respondent

Irene Susan Ponnen

Respondent

Pamodzi Gold East Rand (Pty) Ltd

Respondent

Nigel Gold Mining Co (Pty) Ltd

Respondent

Consolidated Modderfontein Mines Ltd

Respondent

Consolidated Modderfontein Mines 1979 (Pty) Ltd

Respondent

Grootvlei Proprietary Mines (Pty) Ltd

Respondent

Pamodzi Gold Orkney (Pty) Ltd

Respondent

Solidarity

Respondent

National Union of Mineworkers

Respondent

United Association of South Africa

Respondent

The Master of the High Court of South Africa, Gauteng Local Division, Johannesburg

Respondent

Gauteng Provincial Division, Pretoria

Respondent

The Sheriff of the High Court of South Africa for the District of Johannesburg North

Respondent

Simone Liesel Magardie

Respondent

Procedural Posture

Rescission Application / Judgment on Rescission Applications

Legal Issues

  1. 1 Whether the applicants are entitled to rescission of judgments granted against them in the principal insolvency applications.
  2. 2 Whether there was sufficient proof that Aurora Empowerment Systems (Pty) Ltd was insolvent at the time payments were made to the applicants.
  3. 3 Whether the applicants provided a valid explanation for their failure to oppose the principal applications.

Ratio Decidendi

The applicants failed to provide any explanation for their default in the principal applications and did not establish a bona fide defence. The only issue pursued was the alleged lack of proof of insolvency, but the evidence presented by the liquidators was not seriously challenged and demonstrated that Aurora Empowerment Systems (Pty) Ltd was insolvent at all relevant times. The applicants had received substantial payments from Aurora, which had no capital or profits to lawfully make such payments. The factual assertions of insolvency were supported by admissible evidence from insolvency inquiries. The applicants' technical objections and defences were abandoned or not persisted in...

Court Disposition

All rescission applications are dismissed with costs, including costs of two counsel, payable jointly and severally by the relevant applicants.

Orders

  • Each and every application for rescission is dismissed with costs.
  • Costs are to be paid by the relevant applicants jointly and severally, the one to pay, the other to be absolved.