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[2015] ZASCA 166
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Breda NO v The Master of the High Court, Kimberley (20537/2014) [2015] ZASCA 166 (26 November 2015)
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THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Case
No: 20537/2014
DATE:
26 NOVEMBER 2015
Reportable
In
the matter between:
LANEL
BREDA
NO
..........................................................................................................
APPELLANT
And
THE
MASTER OF THE HIGH COURT,
KIMBERLEY
..............................
FIRST
RESPONDENT
NOMZI
KHUMALO
NO
.............................................................................
SECOND
RESPONDENT
PETRUS
ARNOLDUS
ELS
...............................................................................
THIRD
REPONDENT
Neutral
citation
:
Breda
NO v The Master of the High Court, Kimberley
(20537/2014)
[2015] ZASCA 166
(26 November 2015)
Coram
:
Maya DP, Theron, Wallis, Swain and Mathopo JJA
Heard
:
9 November 2015
Delivered:
26 November 2015
Summary:
Proof of creditor’s claims in
terms of
s 44
of the
Insolvency Act 24 of 1936
– ex facie
documents claim possibly prescribed – provisional admission of
claim – final determination falling
within trustees functions
and powers – commissioning by attorney of affidavit in support
of claim – falls within exemption
contained in item 1
(b)
of Schedule to Regulations Governing the Administering of an Oath or
Affirmation, promulgated in terms of the Justices of the Peace
and
Commissioners of Oaths Act 16 of 1963 – attorney having an
interest in the matter – not precluded from commissioning
affidavit.
Order
On
appeal from: Northern Cape Division of the High Court, Kimberley
(Kgomo JP and Williams J, sitting as court of first instance).
The
appeal is dismissed with costs.
Judgment
Swain
JA
(Maya
DP, Theron, Wallis and Mathopo JJA concurring):
[1]
The appellant, Lanel Breda NO in her
capacity as the executrix in the insolvent estate of her late husband
Sarel Johannes Breda
(the deceased), unsuccessfully sought an order
in terms of s 151 of the Insolvency Act 24 of 1936 (the Act), before
the Northern
Cape Division of the High Court, Kimberley, reviewing
and setting aside a decision made by the second respondent, Ms Nomzi
Khumalo
NO, in her capacity as the Assistant Master (Kimberley) on 27
February 2013.
That decision was taken at
the first meeting of creditors in the insolvent estate of the
deceased. It admitted the claim of the
third respondent, Petrus
Arnoldus Els, in the amount of R3 569 678.97.
[2]
The first respondent is the Master of the
High Court, Kimberley under whose auspices and control the second
respondent performed
her functions. The first and second respondents
took no part in the proceedings before the court a quo, save for the
furnishing
of a Master’s report by the second respondent.
[3]
The challenge by the appellant as
applicant, before the court a quo, against the decision of the second
respondent, was advanced
on two grounds:
(a)
The documents lodged with the affidavit in support of the claim of
the third respondent, were premised upon various loans to
the
deceased, during his lifetime in the period 6 December 2006 to 25
August 2008. It was submitted that ex facie these documents,
the
claim of the third respondent had prescribed.
(b)
The affidavit submitted by the third respondent in support of his
claim did not comply with the provisions of reg 4(2) of the
Regulations Governing the Administering of an Oath or Affirmation, GN
R1258,
GG
3619, 21 July 1972 (the regulations) promulgated in
terms of s 10 of the Justices of the Peace and Commissioners of Oaths
Act 16
of 1963. It was alleged that the commissioner of oaths who
commissioned the affidavit had failed to set out his prescribed
details
and this rendered the affidavit invalid. The second
respondent was accordingly not entitled to admit the claim.
[4]
The court a quo (Kgomo JP and Williams J)
rejected these submissions. It held that the details of the
commissioner of oaths were
fully set out in the original affidavit
produced by the second respondent at the hearing, although the stamp
setting out these
details on the copy provided to the appellant, was
practically illegible. As regards the claim of prescription the court
a quo
held that payment of an amount of R1 300 000 on 30 June
2009, interrupted the running of prescription, with the result that
the debts had not prescribed. The application was accordingly
dismissed with costs.
[5]
An application for leave to appeal to this
court was subsequently granted by the court a quo on two grounds:
(a)
On being provided with the original affidavit at the hearing before
the court a quo, and having had an opportunity to examine
the
affidavit after the hearing, the appellant alleged that the
commissioner of oaths who had commissioned the affidavit, had an
interest in the matter and was precluded from administering the oath
in terms of reg 7(1) of the regulations. If this was the case
the
affidavit was invalid as s 44(4) of the Act, which requires the
production of an affidavit by the claimant in proof of the
claim, had
not been complied with and the claim had wrongly been admitted to
proof. The court a quo noted that this aspect had
not been brought to
its attention during the hearing.
(b)
The nature of the documents supporting the claim by the third
respondent were unusual and regard being had to the claim of
prescription, there was a reasonable possibility that another court
might find that the second respondent should
mero motu
have
invoked her powers under s 44(7), and/or s 44 (8) of the Act, and
directed that the third respondent submit to interrogation
on these
issues.
[6]
Before dealing with the challenges raised
by the appellant to the admission of the third respondent’s
claim, it is necessary
to set out the historical background to place
the disputes in context. This is necessary because the relief claimed
by the appellant,
namely the review and setting aside of the decision
of the second respondent to admit the claim of the third respondent,
in reality
has as its objective, a far greater goal, namely the
removal of the duly appointed trustees from the administration of the
insolvent
estate. The evidence reveals a great deal of distrust
between the appellant and the third respondent, which in the case of
the
appellant also includes the roles played by the trustees and the
second respondent, in the administration of the insolvent estate.
As
will be seen, this distrust has resulted in challenges being raised
by the appellant to the conduct of the second respondent
as well as
the trustees, unsupported by any evidence.
[7]
The deceased died on 3 March 2009. The
appellant was appointed by the first respondent as the executrix on
26 April 2011 after she
objected to the way in which the estate was
being administered by the original executor. The third respondent as
applicant, was
however successful, despite opposition by the
appellant, in obtaining the provisional sequestration of the deceased
estate on 14
May 2012, and thereafter its final sequestration on 21
September 2012. The Northern Cape Division of the High Court,
Kimberley
(Lacock J) granted the final order on the basis that it was
in the interest of creditors to do so. Lacock J found that prima
facie
it appeared there had been a possible diminution, or alienation
of assets in the estate by the appellant. In addition, he regarded
as
suspicious the secrecy of the appellant, in her unwillingness to
disclose the assets and liabilities of the estate. He concluded
that
the appellant had an interest in the estate and it was questionable
whether she could objectively administer it.
[8]
As regards the claims of the third
respondent upon which the sequestration was based (being the claims
in issue in the present proceedings)
Lacock J remarked that at the
very least they appeared peculiar and not in accordance with normal
business practice. The claims
were said to be loans made to the
deceased by the third respondent of millions of rands, which were
solely evidenced by handwritten
‘IOU’s’. He found
that it was understandable why the appellant did not wish to accept
the claims and questioned
the bona fides of the third respondent.
Accordingly, the issue of whether these claims had prescribed, or
whether the running of
prescription had been interrupted, as well as
the validity of the claims themselves, were all issues to be
objectively investigated
by a duly appointed trustee.
[9]
Messrs Venter & Tau were thereafter
appointed as trustees of the deceased’s insolvent estate, by
the second respondent,
on 26 March 2013. This occurred as a result of
the nomination by the third respondent of Mr Venter, at the first
meeting of creditors,
after the admission by the second respondent of
the disputed claim of the third respondent.
[10]
However, when the appellant launched the
present review proceedings, neither the trustees nor the third
respondent were joined as
respondents, despite their clear interest
in the relief sought. The appellant steadfastly maintained this
stance in the face of
the Master’s report in which it was
correctly stated that the trustees, as well as the third respondent,
should have been
cited as interested parties. The third respondent
was accordingly obliged to intervene in the proceedings.
[11]
The intentional non-joinder of the trustees
by the appellant is surprising in light of the statement made before
this court by counsel
for the appellant, that the object of the
application was the removal of the trustees from the administration
of the estate. This
was to be achieved by the review and setting
aside of the decision of the second respondent to admit the claim of
the third respondent.
In the absence of an admitted claim, the third
respondent was not entitled to nominate the duly appointed trustees.
[12]
Despite the fact that the conduct of the
trustees was not in issue before the court a quo and they had not
been joined, submissions
were made in the appellant’s heads of
argument to justify the trustees’ removal. These were that the
trustees were
appointed as a result of their nomination by the third
respondent and ‘no evidence is available to conclude that any
investigation
took place as to the claim by the third respondent, or
that such a trustee invoked the provisions of s 45 of the [Act]’.
Section 45 places a duty upon a trustee to examine all proved claims
and decide whether the estate owes the claimant the amount
claimed.
In argument, counsel for the appellant repeated this submission, but
when asked whether he was suggesting impropriety
in the conduct of
the trustees, and was reminded of the seriousness of such an
accusation, he did not persist with this submission.
[13]
The paucity of evidence as to the trustees’
conduct in the discharge of their obligations is accordingly
understandable as
their conduct was never directly challenged. This
is highlighted by the statement in the Master’s report dated 7
October
2013, that an interrogation was scheduled to be held before
the second respondent on 16-18 October 2013. The report stated that
the presiding officer, trustee and any creditor who has proved a
claim against the estate could interrogate the third respondent
with
regard to his claim. Counsel for the appellant was unable to say
whether the third respondent had been interrogated. However,
as at
the date of appellant’s replying affidavit, 25 February 2014,
it was alleged that ‘to date the third respondent’s
claim
has not been subjected to an insolvency inquiry’. Counsel for
the appellant correctly conceded that it was the appellant’s
obligation to place evidence before the court a quo, concerning the
scheduled interrogation. It may have been adjourned in the
light of
these proceedings but there is no indication, if that is the case,
that it will not take place at some time.
[14]
However, the appellant’s ulterior
objective to remove the trustees, and the allegations made by
appellant’s counsel
in appellant’s heads of argument and
before this court, in pursuit of this objective, cannot obscure the
true nature of the
present inquiry. It is simply this: did the second
respondent err in admitting the claim of the third respondent without
interrogating
him as to whether the claims had prescribed? In
addition, did the second respondent err in admitting the claim of the
third respondent,
if the attorney who commissioned the third
respondent’s affidavit in proof of the claim, represented the
third respondent
for this purpose and was accordingly disqualified
from performing this function? It is to these issues that I now turn.
[15]
In
Marendaz v
Smuts
1966 (4) SA 66
(T) at 72C-E the
exercise of a discretion by a presiding officer to interrogate a
claimant was described as follows:
‘
The
decided cases referred to show, in my view, that each case must be
decided on its own merits and that no hard and fast rule
can be laid
down as to when a presiding officer ought to be satisfied with the
proof of a claim as provided for in sec. 44 (3)
of the Act, or as to
when he should resort to the calling of evidence as provided for in
sec. 44 (7).’
[16]
In
Cachalia v
De Klerk NO and Benjamin NO
1952 (4) SA
672
(T) at 675E-F the following was stated concerning the functions
of a presiding officer in deciding whether to admit a claim:
‘
The
admission of a claim by the presiding officer is in a sense only
provisional, because under sec. 45 (3) the trustee may dispute
the
claim notwithstanding its admission by the presiding officer.
Furthermore, the presiding officer does not adjudicate upon the
claim
as if he were a court of Law; he is not required to examine the claim
too critically (
Hassim Moti & Co v
Insolvent Estate Joosub & Co
1927
TPD 778
at p 781), or to require more than
prima
facie
proof (
Aspeling
v Hoffman’s Trustee
1917 TPD 305
at p 307).’
[17]
The second respondent in her report pointed
out that the third respondent’s claim had to be proved to her
satisfaction, in
terms of s 44(3) of the Act. She stressed the
provisional nature of her determination, as the trustees were obliged
to ascertain
whether the estate owed the amount claimed by the
creditor and dispute the claim if necessary. She added that the
scheduled interrogation
would assist the trustees to decide on the
validity of the claim. There is no evidence to suggest that the
second respondent failed
to properly fulfil her function.
[18]
As pointed out however, the main challenge
to the second respondent’s decision to admit the claim, was
that whether the claim
had prescribed, should have been investigated
by the second respondent by subjecting the third respondent to
interrogation in terms
of s 44(7). The manner in which a presiding
officer should assess a claim which ex facie the documents submitted
in proof of the
claim may have prescribed, accordingly requires
examination.
[19]
In
Aspeling &
another v Hoffman’s Trustee
1917
TPD 305
at 307 the following was stated:
‘
The
wording of the law is that the claim must be “proved to the
satisfaction of the presiding officer, who shall admit or
reject the
same.” I think that that means that when a debt, for instance,
is proved before him, and it appears
ex
facie
the documents that the debt is
prescribed, he should reject it, because a prescribed debt cannot be
proved against an insolvent
estate.’
At
309 Gregorowski J however more accurately described the debts as
being prima facie prescribed.
[20]
The decision in
Aspeling
was followed in
Ilsley v De Klerk NO &
another
1934 TPD 55
at 56-57 in which
Solomon J stated:
‘
Now
it appears to be the law that at the first meeting of creditors the
presiding officer must see that
prima
facie
proof of the various claims is
produced and if that
prima facie
proof is not produced in respect of a particular claim he must reject
it. This principle appears from the cases cited by Mr Heather,
namely,
Aspeling and another v Hoffman’s
Trustee
1917 TPD 305
and
Peach
v Stewart NO and another
1929 WLD 228.
But unless the claim is on the face of it bad – for example, it
may ex facie be prescribed – the presiding officer,
in my
opinion, should not reject it without hearing the creditor’s
evidence under sec. 42 (5). . . .’
[21]
Mars
The Law of Insolvency in South Africa
[1]
citing
Ilsley
states that ‘if on the face of it the claim is bad, eg if the
documents show that the debt is prescribed, [the presiding
officer]
should reject the claim without calling the creditor to give
evidence.’ P M Meskin et al
[2]
citing
Aspeling
adopts a similar view subject to the proviso that, if the creditor
intends to rely on the fact that prescription was interrupted,
he
should set forth the facts in this regard in the affidavit for proof.
Catherine Smith,
[3]
although
stating that the view that the claim should be rejected is generally
accepted, is of the view that it is doubtful if this
is correct. The
learned author states:
‘
The
presiding officer’s refusal to admit a claim which appears to
have become prescribed may well be met with the explanation
that
prescription has been interrupted. It is suggested that prima facie
the debt is due and that the claim should be provisionally
admitted.’
[22]
The
need to allow a claimant an opportunity to raise the issue of the
delay or interruption of the running of prescription underlies
the
provisions of
s 17
of the
Prescription Act 68 of 1969
. This section
provides that a court shall not of its own motion take notice of
prescription. A party to litigation who invokes
prescription must do
so ‘by way of a plea or special plea and not by way of
exception. The reason is that the plaintiff may
have a valid answer
(such as delay or interruption) to the plea of prescription, which
may be raised in replication.’
[4]
[23]
The rejection of a claim by a presiding
officer in terms of
s 44(3)
on the basis that prima facie it is
prescribed, denies a creditor the right to furnish an answer to this
conclusion. The presiding
officer does not adjudicate upon the claim
as a court of law, is not required to examine the claim too
critically and only has
to be satisfied that the claim is prima facie
proved. The view of Catherine Smith that the claim is prima facie due
and should
provisionally be admitted affords this opportunity to the
creditor. The appropriate stage to determine whether the claim is
prescribed
is when the trustee examines the claims proved against the
estate. The trustee is obliged to examine all books and documents in
order to determine whether the estate owes the amount claimed. This
would encompass any documents relevant to the issue of whether
the
running of prescription was delayed or interrupted. The trustee can
of course ask for a creditor to be interrogated if the
claim is
questionable. In addition, in terms of s 45(3) of the Act if the
trustee disputes the claim, he is obliged to inform the
Master in
writing and include his reasons for doing so. The Master may only
disallow the claim after having afforded the claimant
an opportunity
to substantiate his claim. It is therefore clear that the
determination of whether a creditor’s claim has
prescribed,
more appropriately falls within the powers and functions of the
trustee. The furnishing of an affidavit by the creditor
to the
presiding officer as the basis for a claim that the running of
prescription has been delayed or interrupted, as suggested
by Meskin,
falls beyond the circumscribed functions of the presiding officer and
should more appropriately be furnished to the
trustee.
[24]
Although the claims of the third respondent
ex facie the documents submitted to proof may have prescribed, as the
last loan to the
deceased was made on 25 August 2008, the third
respondent relies ex facie on a letter dated 20 December 2007 as
proof of an obligation
to make payment, which was then allegedly made
on 30 June 2009 in part payment of the loans. This was accepted by
the court a quo
which found that the running of prescription was
interrupted and the claims had not prescribed. There is no evidence
to suggest
that the second respondent failed properly to examine
whether the claim had prescribed, nor that she erred in this regard
in finding
that the claim had prima facie been proved to her
satisfaction.
[25]
I turn to consider the challenge that the
affidavit filed by the third respondent in proof of his claim, was
commissioned by an
attorney who held an interest in the matter, in
contravention of the prohibition contained in reg 7(1) of the
regulations. In accordance
with the decision in
Noordkaaplandse
Ko-op Lewendehawe Agentskap Bpk v Van Rooyen & others
1977 (1) SA 403
(NC) at 407, it was argued that the second respondent
was not entitled to admit the claim.
[26]
Although it was submitted in third
respondent’s heads of argument that this challenge was not
raised before the court a quo
and the appellant should be precluded
from raising it for the first time on appeal, no argument was
advanced by counsel for the
third respondent in support of this
contention. This concession was correct because the failure of the
appellant to raise this
argument before the court a quo, was solely
caused by the failure of the second respondent to provide a legible
copy of the relevant
affidavit to the appellant before the hearing.
Counsel for the third respondent did however submit that the
appellant had placed
no evidence before the court a quo, to prove
that the attorney who had commissioned the affidavit represented the
third respondent
in submitting the claim and therefore held a
disqualifying interest in the matter. It appeared to be common cause
that the attorney,
Mr Engelbrecht, had acted for the third respondent
during the sequestration proceedings and continued to act for him
during the
review proceedings. Be that as it may, in the light of the
conclusion I have reached on the validity of the legal challenge to
the commissioning of the affidavit, it becomes unnecessary to
consider any evidential basis for this challenge.
[27]
The statutory foundation for the relevant
regulations is found in ss 7 and 10(1) of the Justices of the Peace
and Commissioners
of Oaths Act 16 of 1963 which read as follows:
‘
7.
Powers of commissioners of oaths
Any
commissioner of oaths may, within the area for which he is a
commissioner of oaths, administer an oath or affirmation to or
take a
solemn or attested declaration from any person: Provided that he
shall not administer an oath or affirmation or take a solemn
or
attested declaration in respect of any matter in relation to which he
is in terms of any regulation made under section ten prohibited
from
administering an oath or affirmation or taking a solemn or attested
declaration, or if he has reason to believe that the person
in
question is unwilling to make an oath or affirmation or such a
declaration.
.
. .
10.
Regulations
(1)
The Minister may make regulations –
.
. .
(c) prescribing the
circumstances under which commissioners of oaths shall be prohibited
from administering an oath or affirmation
or taking a solemn or
attested declaration; . . . .’
[28]
The regulations made in terms of s 10, the
Regulations Governing the Administering of an Oath or Affirmation, GN
R1258,
GG
3619, 21 July 1972, provided that:
‘
7
(1) A commissioner of oaths shall not administer an oath or
affirmation relating to a matter in which he has an interest.
(2) Subregulation
(1) shall not apply to an affidavit or a declaration mentioned in the
Schedule.’
[29]
The relevant portion of the schedule read
as follows:
‘
SCHEDULE
AFFIDAVITS
AND DECLARATIONS EXEMPTED FROM THE PROVISIONS OF REGULATION 7(1)
1.
Any affidavit or declaration taken by an attorney and required-
.
. .
(b) for record in
any office of the Government of the Republic, a provincial
administration or . . . .’
[30]
Before its amendment, the relevant portion
of the schedule provided that an affidavit taken by an attorney and
required ‘for
record in any office of the Government of the
Republic. . .’ was exempt from the prohibition contained in reg
7(1). The decision
in
Noordkaaplandse
Ko-op
, which concerned the validity of
an affidavit submitted in terms of s 44(4) of the Act, followed the
reasoning in
Nochomowitz v Bellville
Liquor Licensing Board & another
1956 (2) SA 228
(C) at 234F-H and
Royal
Hotel, Dundee & others v Liquor Licensing Board Area No 26
;
Durnacol Recreation Club v Liquor
Licensing Board Area No 26
1966 (2) SA
661
(N) at 670A-C. These cases concerned the validity of affidavits
submitted in support of applications for liquor licences in terms
of
the (now repealed) Liquor Act 30 of 1928.
[31]
In
Noordkaaplandse
Ko-op
the argument that the affidavit
required in terms of s 44(4) of the Act was simply required for
record in an office of the Government
was rejected. It was held that
because the commissioner held an interest in the matter, within the
meaning of reg 7(1), the affidavit
was invalid and the provisions of
s 44(4) of the Act were not complied with. The rejection of this
argument was based upon the
reasoning in
Nochomowitz
,
that although the affidavit in support of the application for a
liquor licence would inevitably be filed in an office in the
Government, that was not its purpose. Its true purpose was to inform
the Liquor Licensing Board of certain particulars which were
regarded
as information to be placed before the Board, when it came to its
decision upon the application for a licence. The documents
to be
exempted in terms of the schedule, were those required for record
purposes of a more or less formal nature, dealing with
formal
matters.
[32]
In
Royal Hotel
at 670B-D the same reasoning was followed. It was pointed out that
the Liquor Licensing Board was not an ‘office of the
Government’, but a quasi-judicial body and the affidavits were
required for the purpose of informing it of certain information,
to
enable it to come to a decision on the application before it. This
was part of the process of placing evidence before the Board
and was
by no means a formality. In addition, the affidavits were to inform
possible objectors and the police of that information,
so that they
could make representations to the Board.
[33]
Consequently, an affidavit commissioned by
an attorney with an interest in the matter, before the amendment of
the schedule, in
proof of a claim in terms of s
44(4) of the Act was invalid.
[34]
By GN R1428,
GG
7119, 11 July 1980, the schedule was however substituted by a new
schedule, which reads as follows:
‘
SCHEDULE
DECLARATIONS
EXEMPTED FROM THE PROVISIONS OF REGULATION 7 (1)
1.
A declaration taken by an attorney which-
.
. .
(b)
should be furnished to a Minister or an administrator or an officer
in the service of the State. . . .’
The
substituted schedule accordingly exempts an affidavit taken by an
attorney with an interest in the matter from the restriction
contained in reg 7(1) where ‘the affidavit should be furnished
to. . .an officer in the service of the State’.
[35]
The interpretation of the amendment to the
schedule by the courts, in connection with the submission of
affidavits in support of
applications for liquor licences in terms of
s 37 of the (also now repealed) Liquor Act 87 of 1977, has resulted
in a reversal
of the decisions in
Nochomowitz
and Royal Hotel
that an affidavit
commissioned by an attorney with an interest in the matter is
prohibited. It is therefore necessary to consider
these subsequent
decisions, before determining the validity of the third respondent’s
affidavit.
[36]
In
East Cape
Consumers Co-operative Ltd v National Liquor Board & another
1986
(4) SA 612
(E) at 614E-I it was held that:
‘
What
is relevant to the present problem is para 1
(b)
and in particular the words “a declaration taken by an attorney
which should be furnished to a Minister or an administrator
or an
officer in the service of the State”. The word “should”
would seem to be inappropriate. What is presumably
meant is a
declaration which is required to be furnished to a Minister or an
Administrator or an officer in the service of the
State. Compare the
Afrikaans wording “verstrek moet word”.
Mr
Whitehead
, on behalf of the applicant, has argued that the
affidavit in question is a declaration which is required to be
furnished to the
Minister or to an officer in the service of the
State and that the affidavit is accordingly exempt from the
provisions of reg 7(1).
An
application in terms of the Liquor Act such as the present one is
made to the Minister of Justice by lodging the same with the
magistrate who in turn transmits the application to the Liquor
Licensing Board for its consideration and recommendation. (See s
37
of Act 87 of 1977). It would accordingly seem to be correct to say
that such applications, and therefore the affidavits accompanying
them, are documents required to be furnished to a Minister or to an
officer in the service of the State. See the remarks made in
the case
of
Nochomowitz v Bellville Liquor Licensing Board and Another
(
supra
at 234E).’
[37]
This decision was followed in
Drop-Inn
Group of Liquor Supermarkets (Pty) Ltd v Chairman, Liquor Board &
another
1986 (4) SA 1042
(C) at 1046H-I
where the following was stated:
‘
It
was further submitted by Mr
Selikowitz
that the affidavits and declarations envisaged by the schedule are
documents of a more or less formal kind which solely concern
the
Minister or Administrator or officer of the State to whom they are
furnished and not affidavits in Liquor Board applications
which
concern the Liquor Board, the police and opposing parties, although
they are formally addressed to the Minister. I do not
agree. In terms
of s 37 of the Liquor Act 87 of 1977 an application for a licence is
made to the Minister and he decides whether
it should be granted or
not.’
[38]
I agree with the reasoning and conclusion
in these cases. Consequently, the purpose in furnishing the requisite
affidavit, is no
longer a relevant consideration in deciding whether
the affidavit falls within the exemption contained in the amended
schedule.
All that is required is an obligation to furnish an
affidavit to ‘a Minister or an administrator or an officer in
the service
of the State’. The reason why the affidavit is
required by any of these officials is irrelevant to a determination
of whether
the exemption applies to the commissioning of a particular
affidavit.
[39]
The inquiry therefore is whether the
affidavit which a claimant is obliged to deliver to the presiding
officer in terms of s 44(4)
of the Act in proof of a claim, is
furnished to ‘an officer in the service of the State’.
Section 39(2) of the Act
provides that:
‘
All
meetings of creditors held in the district wherein there is a
Master’s office shall be presided over by the Master or
an
officer in the public service, designated either generally or
specially, by the Master for that purpose. Meetings of creditors
held
in any other district shall be held in accordance with the direction
of the Master and shall be presided over by the magistrate
of the
district, or by an officer in the public service, designated either
generally or specially, by the Magistrate for that purpose.’
[40]
It is therefore clear that the presiding
officer is ‘an officer in the service of the State’.
Where a magistrate acts
as the presiding officer the following
conclusion in
President of the Republic
of South Africa & others v Reinecke
[2014] ZASCA 3
;
2014 (3) SA 205
(SCA) para 15 is relevant:
‘
All
these are indicia that, notwithstanding their whole or partial
detachment from the public service, magistrates have not ceased
to be
employees of the State.’
Consequently
where a magistrate performs the function of a presiding officer at a
meeting of creditors, he or she acts as an ‘officer
in the
service of the State’ within the meaning of that term contained
in the schedule to the regulations. If this were not
so, it would
mean that the validity of an affidavit submitted in proof of a claim
in terms of s 44 of the Act, would be dependent
upon whether the
meeting of creditors was held in a district where there is a Master’s
office, or not. Such an interpretation
of the schedule would lead to
an insensible or unbusinesslike result and would undermine the
apparent purpose of the amended schedule
to the regulations.
[5]
[41]
In the result, an affidavit commissioned by
an attorney with an interest in the matter furnished in proof of a
claim to a presiding
officer in terms of s 44(4) of the Act is
furnished to ‘an officer in the service of the State’ and
accordingly does
not fall within the prohibition contained in reg
7(1). Consequently in the present case it matters not that Mr
Engelbrecht may
have represented the third respondent and may have
held an interest in the proof of the third respondent’s claim,
at the
time he commissioned the third respondent’s affidavit.
[42]
I make the following order:
The
appeal is dismissed with costs.
K
G B Swain
Judge
of Appeal
Appearances:
For
the Appellant: P Zietsman SC
Instructed
by:
Weavind & Weavind Inc c/o
Mervyn
Joel Smith, Kimberley
Matsepes,
Bloemfontein
For the Third
Respondent: J W Olivier SC
Instructed
by: Engelsman Magabane Inc, Kimberley
Kramer
Weihmann & Joubert, Bloemfontein
[1]
E
Bertelsmann and others
Mars
The
Law of Insolvency in South Africa
9 ed (2008) at 409.
[2]
P
M Meskin et al
Insolvency
Law and its Operation in Winding Up
,
Service Issue 44 (June 2015) para 9.2.5.
[3]
Catherine
Smith
The
Law of Insolvency
3 ed (1988) at 222 n 61.
[4]
LTC
Harms
Amler’s
Precedents of Pleadings
8 ed (2015) at 312-313.
[5]
Natal
Joint Municipal Pension Fund v Endumeni Municipality
[2012] ZASCA 13
;
2012 (4) SA 593
(SCA) para 18.