Singh v The Body Corporate of St Tropez

The Body Corporate of St Tropez applied in the Gauteng Division of the High Court, Pretoria, for the provisional sequestration of the estate of Mr Lunesh Singh due to his failure to pay sectional title levies. Several magistrates’ court judgments had been obtained against Mr Singh, and attempts at execution resulted in nulla bona returns. The body corporate alleged acts of insolvency and factual insolvency, relying on Mr Singh’s ownership of multiple immovable properties to show advantage to creditors. Mr Singh entered an appearance to oppose but failed to file an answering affidavit timeously, resulting in the matter being heard as unopposed. Mokose J granted a provisional sequestration order on 22 November 2021. After the order, Mr Singh raised, for the first time, an allegation that Mokose J had a conflict of interest, as she was a trustee of a trust owning property in a sectional title scheme where Mr Singh also owned property, had previously been chairperson of that body corporate, and had been involved in litigation against him. A complaint to the Judicial Conduct Committee was upheld, finding that Mokose J should have recused herself mero motu.

The appeal was upheld; the provisional sequestration order dated 22 November 2021 was set aside; the sequestration application was remitted to the High Court for reconsideration by a differently constituted court; and the costs of appeal were reserved for determination by the High Court.

The case reaffirms the constitutional imperative of judicial impartiality and the duty of judges to recuse themselves mero motu where a reasonable apprehension of bias arises, even if no recusal application is brought at the hearing. It underscores the legal effect of findings by the Judicial Conduct Committee and confirms that proceedings tainted by a failure to recuse are a nullity.