Venter NO and Others v Mjongile (6435/2007, 2192/2008) [2013] ZAWCHC 160 (28 October 2013)

Venter NO and Others v Mjongile (6435/2007, 2192/2008) [2013] ZAWCHC 160 (28 October 2013)

The court found that the plaintiffs, as joint trustees, proved that the payments made by Kebble and the KebbleBuitendag Investment Trust to the defendant were dispositions not made for value within two years of the respective sequestrations. The defendant, having failed to appear or lead evidence, did not discharge the burden of proving that the insolvent's assets exceeded liabilities immediately after the dispositions. The requirements of section 26(1)(b) of the Insolvency Act were satisfied, and the court exercised its limited discretion to set aside the dispositions and order repayment with interest and costs. The defendant's counterclaim was dismissed for lack of evidence.

Citation
[2013] ZAWCHC 160
Parties
Plaintiff: Anna Francina Venter N.O.; Plaintiff: Rainotes Bantubonke Nduna N.O.; Plaintiff: Johannes Frederick Klopper N.O.; Plaintiff: Jurgens Johannes Steenkamp N.O.; Plaintiff: Hassan Kajie N.O.; Defendant: Songezo Benton Mjongile
Court
Western Cape High Court, Cape Town
Jurisdiction
South Africa
Judgment Date
28 October 2013
Case Number
6435/2007 & 2192/2008
Procedural Posture
Civil Trial / Default Judgment After Consolidation of Two Actions
Outcome
Judgment granted in favour of plaintiffs; dispositions set aside; defendant ordered to pay specified amounts with interest and costs; counterclaim dismissed.
Judges
K M Savage
Legal Topics
Insolvency Act Section 26, Dispositions Not for Value, Trustee Claims, Default Judgment
Land and Property Civil Procedure Insolvency Act Section 26 Dispositions Not for Value Trustee Claims Default Judgment

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Parties

Anna Francina Venter N.O.

Plaintiff

Rainotes Bantubonke Nduna N.O.

Plaintiff

Johannes Frederick Klopper N.O.

Plaintiff

Jurgens Johannes Steenkamp N.O.

Plaintiff

Hassan Kajie N.O.

Plaintiff

Songezo Benton Mjongile

Defendant

Procedural Posture

Civil Trial / Default Judgment After Consolidation of Two Actions

Legal Issues

  1. 1 Whether the dispositions made by Kebble and the KebbleBuitendag Investment Trust to the defendant within two years of sequestration were made for value.
  2. 2 Whether the defendant proved that immediately after the dispositions, the insolvent's assets exceeded liabilities.
  3. 3 Whether the plaintiffs discharged the onus under section 26(1)(b) of the Insolvency Act to set aside the dispositions.

Ratio Decidendi

The court found that the plaintiffs, as joint trustees, proved that the payments made by Kebble and the KebbleBuitendag Investment Trust to the defendant were dispositions not made for value within two years of the respective sequestrations. The defendant, having failed to appear or lead evidence, did not discharge the burden of proving that the insolvent's assets exceeded liabilities immediately after the dispositions. The requirements of section 26(1)(b) of the Insolvency Act were satisfied, and the court exercised its limited discretion to set aside the dispositions and order repayment with interest and costs. The defendant's counterclaim was dismissed for lack of evidence.

Court Disposition

Judgment granted in favour of plaintiffs; dispositions set aside; defendant ordered to pay specified amounts with interest and costs; counterclaim dismissed.

Orders

  • The dispositions of R50,000.00, R46,493.40, R40,000.00, and R78,100.00 made by Kebble to the defendant are set aside under section 26(1)(b) of the Insolvency Act.
  • Defendant to pay the sums of R50,000.00, R46,493.40, R40,000.00, and R78,100.00 to the plaintiffs.