Aboo v Ally

• Jurisdiction: South Africa
• Judge: Landman J
• Judgment Date: 28 June 2007
• Docket Number: 607/04
• Court: Bophuthatswana High Court
• Hearing Date: 14 June 2007
• Citation: 2007 JDR 0717 (B)

Landman J:

[1]

The applicant, Mr Ashraf Alii Aboo, applied on 20 May 2004 for the sequestration of the estate of Mr Ahmed Ally, the respondent.

[2]

On 24 May 2004, Gura AJ (as he then was) granted a provisional order of sequestration returnable on 3 June 2004.

[3]

On 11 August 2004 the Master appointed Ms Lilly Mampina Malatsi-Teffo of Boitshepo Trustees CC and Mr Mohamed Waheed Essop of Abbizah (Trust CC) to be the provisional trustees of the respondent's estate.

2007 JDR 0717 p2

Landman J

[4]

The Rule Nisi was extended from time to time. As there was no appearance for the applicant on 25 October 2005, I struck the application from the roll. This had the effect of discharging the Rule.

[5]

On 8 June 2007 a notice of motion purportedly signed by "the applicant's attorney" i.e Mr Ashraf Alii Aboo was filed. The following relief is sought:

"1.

That the non compliance with the rules and practice of this Honourable Court concerning forms and time periods for applications be condoned and that this matter be heard [as] one of urgency as envisaged in Rule 6(12) of the Uniform Rules;

2.

Placing the estate of the First Respondent under final sequestration;

3.

Directing that the costs of this Application be costs in the sequestration;

4.

Granting the Applicant further and/or alternative relief as this Honourable Court deems fit."

[6]

The application is supported by affidavits by the two provisional trustees.

[7]

The attorney, purportedly acting for the applicant, had the papers served upon the two trustees, the applicant, the respondent and the Master.

[8]

Attached to the application is a document signed by the respondent withdrawing his opposition in the matter. It is dated 11 June 2007.

[9]

Mr Essop's founding affidavit states that:

"I confirm we were never removed from the Master of the High Court Bophuthatswana under no circumstances till date and urge the Court to please condone and place back on the Roll and issue the final order in this regards as we are acting in the best interest of creditors.

The estate has two properties in this regards and I declare that

2007 JDR 0717 p3

Landman J

this estate is hopelessly insolvent.

I accordingly respectfully pray for an order in terms of the affidavit."

[10]

A report by the provisional trustees to the Master is attached. It states:

"At this stage the Trustees hands are tied as final order has not been granted. The property is deteriorating and is still in the hands of the Insolvent who is not paying any rent as we do not have full control or power over the properties and cannot appoint auctioneers to help in the sale of the properties.

Both liquidators are handling the day-to-day administration of the estate."

[11]

The assets of the estate are estimated at R885 000 and the liabilities R 1 388 909.93...