A Durban woman, who successfully challenged her sister in court after she swindled her inheritance from their late parents' estate, has been dealt a second blow.
In the Verulam Regional Court, Bhavana Badassey, was ordered to pay her younger sister Zaaria Omarsaib (Swastika Badassey), 25, of Newlands West, over R730 000 with interest and legal fees.
Omarsaib said judgment was handed down more than 18 months ago, and her sister could not be found since then.
According to the judgment handed down in September 2023, after their parents died in separate motor vehicle accidents in July 2008 and September 2010, monies were paid to Omarsaib, Badassey and their sister, who is not part of the action.
An amount of R1 286 900.22 was paid out to Omarsaib.
This comprised payments from the Road Accident Fund, pension from Sanlam, an investment from Cadiz Asset Management, and the proceeds from the sale of their late mother's vehicle.
According to the court papers, in August 2011, Badassey was appointed by the courts as the legal guardian of Omarsaib, who was a minor at the time.
Omarsaib told the court that when she became an adult in 2018, Badassey failed to account to her as to how her monies had been utilised over the years.
In her evidence, she said Badassey had put all of the monies belonging to her (Omarsaib) into one bank account, which her sister had sole control over.
She further testified that she was 11-years-old when Badassey was appointed as her legal guardian and as a result, she could not have consented as to how the monies were spent.
She said it was the duty of Badassey, as her legal guardian, to manage her money in accordance with the duty of care and accountability.
Omarsaib testified that on the different instances her monies were utilised by Badassey for purposes other than what they were meant for.
She said, for example, Badassey used her money to buy a motor vehicle and registered it in her (Badassey’s) name.
She further testified that Badassey had invested her money in Carmol Distributors company, which later collapsed, and she lost almost the entire investment, except for about R27 000 that was paid to her by the liquidators.
Omarsaib further testified that for a long time in her household, after the death of their parents, there were more people staying in the house besides her siblings. It was her grandmother, her uncle and his daughter as well as at some point, Badassey’s husband.
Her evidence was that whatever expenses were incurred in the household during that period, should have considered the additional people she had resided with.
Badassey, on the other hand, submitted that the monies were spent in the best interests of Omarsaib.
She gave evidence as well as their sister, and a financial advisor, who had assumed the role while their father was still alive and continued even after his death.
According to the court papers, all the three witnesses testified that due to Badassey’s young age and the fact that she was also dealing with her injuries sustained in the same accident where their mother died, it was agreed that all the funds received by the three siblings be put into Badassey’s account, so that all the expenses would be paid from that same account.
Badassey also gave evidence that she was asked by the executors to apply to be a legal guardian of Omarsaib and that she was not knowledgeable about what her role as a legal guardian entailed, as she was merely a university student at the time.
She testified that she was not aware that at the end of the guardianship, she was supposed to give an account of how she had spent the money on behalf of Omarsaib.
According to the court papers, Badassey was adamant that an amount of R901 602 was the total amount she spent in paying for the expenses of Omarsaib.
According to her, Omarsaib lived a luxurious lifestyle, was properly taken care of and lacked nothing in life.
During further submissions to the court, Omarsaib’s legal representative said not only did Badassey fail to account for the monies at the end of the guardianship period, she also utilised them for purposes not intended to benefit her.
It was submitted that Badassey failed to keep proper records of how monies were spent and that as someone who was already in her third year level at university, it could not be an excuse that she did not know how she was supposed to administer the affairs of Omarsaib.
Badassey’s attorney on the other hand made submissions that Omarsaib had failed to prove her case on the balance of probabilities, that her sister did not administer her affairs for her benefit.
Her attorney further submitted that the witnesses for Badassey were credible in that they gave their evidence honestly and openly and were not evasive, in that they were able to furnish information required of them.
According to the judgment, the magistrate said while a lot of bank statements were produced by Badassey as proof of what was expended on behalf of Omarsaib, it did not reflect what exactly was bought, other than just the amounts paid and places of purchases.
The magistrate said expenditure schedules reflecting Omarsaib’s portion of monthly expenses had items that could not be justified having been for her benefit.
These expenses included motor vehicle maintenance, instalments, and disk, as well as pet food, vet bills, and homeowner’s insurance.
“Even medical costs that have been included by the defendant (Badassey), when it is clear from the evidence that there was sufficient medical aid cover as well as gap cover over the period in question, could not be regarded as reasonable and necessary for plaintiff’s (Omarsaib) upkeep. It seems, from the evidence, that the plaintiff's monies were used to pay for household expenses, not exclusively necessary for her maintenance…”
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.
“Other than bank statements, the defendant had not produced any form of proof of how she managed the monies entrusted to her on behalf of the plaintiff, over the guardianship period. In the circumstances, 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, as well as interest on the amount calculated at the rate applicable at the time, from the date of service of summons to Badassey on August 11, 2021, until the date of final payment. It was further ordered that Badassey pay the costs of the legal suit.
Speaking to the POST this week, Omarsaib said she had not only suffered financially but emotionally, "carrying the weight of the betrayal since childhood".
“At a time when I needed love, protection, and guidance, she instead took advantage of me in the worst way possible. For years, I struggled, not fully understanding what had happened. As a child, I trusted my sister, believing she had my best interests at heart.
“But as I grew older and started uncovering the truth, I realised she had taken everything that was meant to secure my future. I am hoping, even after a great deal of disappointment, that she will come forward to propose payment. However, this is not just about the money, it is about accountability, justice and closure.”