Khambule and Another v Registrar of Banks; In Re: Registrar of Banks v Khambule and Others (256007/14) [2017] ZAGPJHC 432 (17 November 2017)

Khambule and Another v Registrar of Banks; In Re: Registrar of Banks v Khambule and Others (256007/14) [2017] ZAGPJHC 432 (17 November 2017)

The court found that the final sequestration order was not granted by default, as the applicants had filed opposing papers and the matter was heard on an opposed basis. The absence of the applicants and their counsel did not constitute an error as envisaged by rule 42(1), nor did it fall within the ambit of rule 31(2)(b) or the common law. The rescission application was brought out of time and was incompetent. The applicants' attorney repeatedly disregarded court rules and directives, and the application appeared intended to frustrate the Registrar and the victims of the unlawful pyramid scheme. The court held that the conduct of the applicants' attorney warranted a punitive costs order...

Citation
[2017] ZAGPJHC 432
Parties
Applicant: Fudi Abram Khambule; Applicant: Happy Nombulele Khambule; Respondent: Registrar of Banks; Respondent: TVI Travel and Marketing Agency CC
Court
South Gauteng High Court, Johannesburg
Jurisdiction
South Africa
Judgment Date
17 November 2017
Case Number
256007/14
Procedural Posture
Urgent Application / Application for Rescission of Final Sequestration Order
Outcome
Application dismissed with punitive costs de bonis propriis against the applicants' attorneys of record.
Judges
L.T. Modiba
Legal Topics
Sequestration, Rescission of Judgment, Unlawful Deposit Taking, Pyramid Scheme, Variation of Order, Punitive Costs
Banking and Finance Civil Procedure Sequestration Rescission of Judgment Unlawful Deposit Taking Pyramid Scheme Variation of Order Punitive Costs

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Parties

Fudi Abram Khambule

Applicant

Happy Nombulele Khambule

Applicant

Registrar of Banks

Respondent

TVI Travel and Marketing Agency CC

Respondent

Procedural Posture

Urgent Application / Application for Rescission of Final Sequestration Order

Legal Issues

  1. 1 Whether the final sequestration order granted in the absence of the applicants is rescindable under rule 42(1) of the Uniform Rules of Court.
  2. 2 Whether the applicants have established grounds for rescission under rule 31(2)(b) or the common law.
  3. 3 Whether the conduct of the applicants' attorney warrants a punitive costs order de bonis propriis.

Ratio Decidendi

The court found that the final sequestration order was not granted by default, as the applicants had filed opposing papers and the matter was heard on an opposed basis. The absence of the applicants and their counsel did not constitute an error as envisaged by rule 42(1), nor did it fall within the ambit of rule 31(2)(b) or the common law. The rescission application was brought out of time and was incompetent. The applicants' attorney repeatedly disregarded court rules and directives, and the application appeared intended to frustrate the Registrar and the victims of the unlawful pyramid scheme. The court held that the conduct of the applicants' attorney warranted a punitive costs order...

Court Disposition

Application dismissed with punitive costs de bonis propriis against the applicants' attorneys of record.

Orders

  • The application is dismissed with costs de bonis propriis against the applicant’s attorneys of record on the attorney and client scale.
  • The costs shall include the costs of two counsel where so employed.