Unlimited Group (Pty) Ltd v Mamogale (D13829/2023) [2025] ZAKZDHC 14 (30 April 2025)

Unlimited Group (Pty) Ltd v Mamogale (D13829/2023) [2025] ZAKZDHC 14 (30 April 2025)

The applicant failed to establish any fraud or present new evidence that would justify rescission of the previous judgment dismissing the sequestration application. The respondent had disclosed the existence of the insurance policy, and the applicant possessed the policy document on the day of the hearing. The additional documents were irrelevant, as there was no evidence that the policy was utilised, that a cession had occurred, or that FNB had paid the respondent's costs. The doctrine of res inter alios acta rendered the policy irrelevant to the costs order, which was made in favour of the respondent, not FNB. The applicant misunderstood the requirements for rescission and the legal...

Citation
[2025] ZAKZDHC 14
Parties
Applicant: The Unlimited Group (Pty) Ltd; Respondent: Kgothatso Barrel Mamogale
Court
Kwazulu-Natal High Court, Durban
Jurisdiction
South Africa
Judgment Date
30 April 2025
Case Number
D13829/2023
Procedural Posture
Review Application / Application for Rescission of Judgment Following Dismissal of Sequestration Application
Outcome
Application for rescission dismissed with costs.
Judges
Mossop
Legal Topics
Sequestration, Fraud in Motion Proceedings, Rescission of Judgment, Insurance Policy Relevance, Costs Orders
Civil Procedure Banking and Finance Sequestration Fraud in Motion Proceedings Rescission of Judgment Insurance Policy Relevance Costs Orders

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Parties

The Unlimited Group (Pty) Ltd

Applicant

Kgothatso Barrel Mamogale

Respondent

Procedural Posture

Review Application / Application for Rescission of Judgment Following Dismissal of Sequestration Application

Legal Issues

  1. 1 Whether the applicant established fraud by the respondent or his legal representatives in the sequestration application.
  2. 2 Whether newly discovered documents justify rescission of the previous judgment.
  3. 3 Whether the existence and terms of the respondent's insurance policy with FNB affected the costs orders and set-off.

Ratio Decidendi

The applicant failed to establish any fraud or present new evidence that would justify rescission of the previous judgment dismissing the sequestration application. The respondent had disclosed the existence of the insurance policy, and the applicant possessed the policy document on the day of the hearing. The additional documents were irrelevant, as there was no evidence that the policy was utilised, that a cession had occurred, or that FNB had paid the respondent's costs. The doctrine of res inter alios acta rendered the policy irrelevant to the costs order, which was made in favour of the respondent, not FNB. The applicant misunderstood the requirements for rescission and the legal...

Court Disposition

Application for rescission dismissed with costs.

Orders

  • The applicant’s application for an adjournment is refused with costs, such to be taxed on scale B.
  • The application is dismissed with costs, such to be taxed on scale B.