A DURBAN woman has denied claims that she could not be found after the court ordered her to pay back her sister the inheritance from their late parents estate.
Attorney Lauren Ganasen, acting on behalf of Bhavana Badassey, said following the Verulam Regional Court judgment on September 29, 2023, they had filed a notice of appeal in October of the same year.
Last Wednesday, it was reported on Zaaria Omarsaib’s (Swastika Badassey) claim that her sister, Bhavana Badassey, who was ordered to pay her over R730 000 with interest and legal fees could not be found.
“Woman wins inheritance battle against sister, but now she can’t find her”, the POST, March 12-16, refers.
According to the judgment, Omarsaib had approached the court with claims that Badassey had failed to account to her as to how her inheritance had been utilised over the years. Omarsaib, Badassey and another sister, each received monies after their parents died in separate motor vehicle accidents in July 2008 and September 2010.
An amount of R1 286 900.22 was paid out to Omarsaib. In August 2011, Badassey was appointed the legal guardian of Omarsaib who was 11 years old at the time.
At the time the magistrate said in the absence of any cogent documentary evidence from Badassey as to how she managed monies that were meant exclusively for Omarsaib, it could not be that all the monies she received were accounted for.
“I am satisfied that the defendant received the monies as reflected in the evidence tendered in court and utilised only a portion towards the plaintiff’s upkeep and is consequently liable for the balance as claimed by the plaintiff.”
The magistrate ordered a payment of R732 137.73.
On Monday, Badassey via Ganasen of Camille & Co, said they were appealing the entire judgment. Among the grounds upon which the appeal is based was that the magistrate had failed to deal with the issue of prescription raised by Badassey.
“In this regard the letter from the defendant’s (Badassey) attorney dated July 16, 2020, is not an express or tacit acknowledgement of liability of all the causes of action relied upon by the plaintiff (Omarsaib).”
In addition, the appeal notice read that the magistrate failed to have regard to the concession made by Omarsaib in the written argument submitted on her behalf as to the amount she claimed.
“The magistrate found that the plaintiff was ‘liable for the sum claimed on the summons’, but then granted judgment for the amount of R732 137.73 (which is not the total amount claimed by the plaintiff) without giving any indication as to which amounts he found had been proved and which amounts comprised the total he awarded,” it read.
Furthermore, the appeal notice read that the magistrate recorded submissions made on behalf of Badassey that she and her witnesses were credible, but did not thereafter make any finding on their credibility or demeanor.
“He erred by not accepting their evidence,” it further read.
According to the appeal notice, the magistrate had erred in finding that Badassey was not entitled to claim the amount spent on medical costs because of there being medical aid and gap cover. However, the evidence was that such medical costs were not covered by medical aid and gap cover.
According to the appeal notice, the magistrate had also erred in rejecting the bank statements produced by Badassey as proof of what had been expended on behalf of Omarsaib. It also read that the magistrate incorrectly rejected the evidence of Badassey regarding the need for motor vehicles to be purchased and for ancillary expenses.
“Similarly he failed to have regard to the fact that the pets were family pets and that the plaintiff (Omarsaib) was clearly a part of the family”, it read.
According to the appeal notice, the magistrate had also incorrectly rejected the evidence of Badassey that at the commencement of her guardianship she herself was suffering from fairly extensive injuries sustained in the motor vehicle collision, that she was still of a young age and that she relied upon the advice given to her by financial advisors.
“Further, he erred in finding that merely because she was in her third year of studies at university, it must have been clear to her that she was required to give an account at the end of the guardianship,” it read.
It further read that having found that Badassey had utilised “a portion” of the monies received towards Omarsaib’s upkeep, the magistrate erred in not setting out what “portion” he found to have been proved and how this affected the quantum claimed by Omarsaib.
“It is accordingly submitted that judgment of the magistrate should be set aside on appeal and substituted by an order dismissing the plaintiff’s claim with costs including the costs of the appeal”, it read.
Speaking to the POST on Monday, Badassey said she had been residing in Durban, with no change to her contact details.
“Sister didn’t lose the battle as an appeal has been applied for. Further, I am right here. My attorney has been in consistent communication with the plaintiff’s attorney providing them with updates regarding the appeal.”
Ganasen provided the POST with email correspondence between herself and Omarsaib’s legal representatives.
“My place of work, as well as my everyday activities primarily take place in Durban in which I proceed as per normal. However, being appointed as the legal guardian of my minor sister Swastika, little did I know that this letter I was requested to sign would turn my life into a nightmare, resulting in my character being questioned, humiliated, and defamed among other things,” she said.
Badassey added that no monies were swindled or used for her selfish gain.
“It was used for my family, home and sisters. Upon leaving all funds were divided among my siblings and myself. All decisions were made for the best interest of Swastika. The only thing I failed at was raising a good human who is honest, respectful and with integrity.
“I will fight tooth and nail to prove my innocence. However, if the article was true regarding her emotional suffering due to betrayal in her childhood, I hope she is able to receive appropriate medical care,” she said.