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[2020] ZAGPJHC 306
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Klein NO and Others v Levick and Others; In Re Levick and Another v Master of the High Court, Johannesburg and Others (40681/2019; 41368/2019; 526/2020; 13811/2020; 12492/2020) [2020] ZAGPJHC 306 (23 November 2020)
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, JOHANNESBURG
CASE
NUMBER: 40681/2019
CASE
NUMBER: 41368/2019
CASE
NUMBER: 526/2020
CASE
NUMBER: 13811/2020
CASE
NUMBER: 12492/2020
In
the matter between
KLEIN,
NORMAN
N.O
1
st
Applicant
VAN
DER MERWE, LIEBENBERG
DAWID
RYK
N.O
2
nd
Applicant
NIEZEL,
TARYN JANE
N.O
3
rd
Applicant
NDYAMARA,
AVIWE NTANDAZO N.O
4
th
Applicant
NDUNA,
SIBUSISO
N.O
5
th
Applicant
And
LEVICK,
LEIGH
ANNE
1
st
Respondent
LEVICK,
TANNAH
2
nd
Respondent
THE
MASTER OF THE HIGH COURT,
JOHANNESBURG
3
Rd
Respondent
NETSHITAHAME,
NTUWISENI N.O
4
th
Respondent
In
re
the various applications between: -
LEVICK,
LEIGH
ANNE
1
st
Applicant
LEVICK,
TANNAH
2
nd
Applicant
And
THE
MASTER OF THE HIGH COURT,
JOHANNESBURG
1
st
Respondent
NETSHITAHAME,
NTUWISENI N.O
2
nd
Respondent
KLEIN,
NORMAN
N.O
3
rd
Respondent
VAN
DER MERWE, KIEBENBERG
DAWID
RYK
N.O
4
th
Respondent
NIEZEL,
TARYN JANE
N.O
5
th
Respondent
NDYAMARA,
AVIWE NTANDAZO N.O
6
th
Respondent
NDUNA,
SIBUSISO
N.O
7
th
Respondent
JUDGMENT
DIPPENAAR
J
:
Delivered:
This judgment was prepared and authored by the Judge whose name
is reflected and is handed down electronically by circulation to
the
parties’ legal representatives by e-mail. The date and time for
hand-down is deemed to be 10h00 on the 23
rd
November 2020.
[1]
The
applicants, the joint provisional trustees (“the trustees”
or “the provisional trustees”) of the insolvent
estate of
Mr Martin Ashley Levick (“the insolvent”), seek authority
under s18(3) of the Insolvency Act
[1]
(“the Act”) to litigate in five pending review
applications and any other litigation that may take place between the
applicants and the first and second respondents (collectively
referred to as “the witnesses”) in relation to their
attendance at an enquiry under s152(2) of the Act into the
insolvent’s affairs (“the enquiry”). The first
respondent
is the wife of the insolvent and the second respondent is
his daughter. Both opposed the application. The Master has not
opposed
the application.
[2]
The background to the application is not contentious. The insolvent’s
estate was sequestrated, provisionally on 23 April
2019 and finally
on 4 June 2019. The provisional trustees were appointed on 3 May
2019. Pursuant to a request by two creditors
of the insolvent, the
Master convened the s152 enquiry on 27 May 2019 and on 7 June 2019,
issued summonses requiring the witnesses
to attend the enquiry.
[3]
The Master extended the trustees’ powers on 16 August 2019 in
terms of s73(1) of the Act to “
obtain legal services as per
paragraph 7 of the application
”. I interpret that to mean
the power to engage the services of legal representatives. As the
full application to the Master
has not been placed before me and the
majority of the application has been redacted, it cannot be
ascertained what paragraph 7
of the application referred to.
[4]
Various challenges were made by the witnesses regarding their
attendance at the enquiry, resulting in the Master making various
rulings. Pursuant thereto, the five pending review applications were
launched by the witnesses challenging various decisions made
by the
Master’s representative, the fourth respondent, in relation to
their attendance at the enquiry. In the last review
application,
launched on 26 June 2020 under case number 12492/2020, the witnesses
seek, inter alia, to review and set aside the
entire enquiry and a
declaratory order that consequent thereupon the meetings which were
convened and held in relation to the enquiry
are invalid and of no
legal force and effect.
[5]
The trustees are cited in respondents in all the review proceedings.
In the review applications under case number 41368/2019,
the trustees
have launched a counter application aimed at securing the appearance
and co-operation of the witnesses at the enquiry
(“the counter
application”). The witnesses have challenged the authority of
the trustees in all the pending main applications,
resulting in the
launching of the present application.
[6]
The
central issue to be determined is whether the trustees have made out
a proper case for the granting of authority. It was common
cause that
the onus rested on the trustees and that a court may grant authority
to the trustees ex post facto and after commencement
of their
participation in the proceedings.
[2]
[7]
The trustees’ case was that good cause had been shown for the
granting of authority to them to oppose the various review
proceedings and institute the counter application, whereas the
witnesses contended that no good cause was established. The trustees
challenged the locus standi of the witnesses to oppose the
application. A debate also ensued between the parties regarding the
purpose of s18(3) and what the consequences would be if authority was
not granted to the trustees.
[8]
The starting point is s18(3) of the Act, the relevant portion of
which provides:
“
A
provisional trustee shall have the powers and duties of a trustee, as
provided in this Act, except that without the authority
of the court
or for the purpose of obtaining such authority he shall not bring or
defendant any legal proceedings …”.
[9]
It
has not strenuously been disputed that the main purpose of s18(3) is
to protect creditors against liability for costs incurred
and
dissipation of assets caused by a trustee’s ill-conceived
litigation
[3]
. It was common
cause that authority can be granted after the commencement of the
trustees’ participation in the litigation,
thus ex post
facto
[4]
.
[10]
Both
parties relied on the judgment of Van Oosten J in this division in
Warricker
and Another NNO v Liberty Life Association of Africa Ltd
[5]
(“Warricker”),
where
provisional trustees of an insolvent estate sought leave under s18(3)
of the Act to institute proceedings against an insurance
company to
claim the death benefits of three life insurance policies issued to
the insolvent. Regarding s18(3), Van Oosten J held
[6]
:
“
The
main aim of this provision has been described by Van Zyl in Lane and
Another NNO v Dabelstein and Others (Lane and Another NNO
Intervening) 1999 (3) SA 150 (C
[7]
)
at 163B as ‘probably to protect creditors against liability for
costs incurred and dissipation of assets caused by a trustee’s
ill-conceived litigation’. The subsection, clearly, was enacted
to protect the interests of creditors of the insolvent estate.
It
does not afford an applicant an open sesame to the relief provided
for. An applicant seeking the authority of the Court in terms
of the
subsection must satisfy the Court, on good cause shown, that a
departure from the normal course of events provided for in
the Act is
warranted. Where the institution of proceedings to enforce a claim is
contemplated, to be entitled to an order the applicant
must satisfy
the Court, first, that some degree of urgency exists; secondly, that
the cause of action which is to become the subject
matter of the
proceedings is prima facie enforceable; and, thirdly, that the
interests
of creditors in the insolvent estate will not be prejudiced by the
earlier institution of proceedings”
[8]
[11]
This
dictum was cited with approval by Binns-Ward J in
Van
Zyl NNO v Kaye NO and Others
[9]
(“Van
Zyl”)
.
In both
Warricker
and
Van
Zyl
,
the central issue to be determined was whether the provisional
trustees had illustrated an enforceable cause of action and leave
was
sought to institute proceedings against third parties. Both
applications were dismissed based on the trustees’ failure
to
establish a prima facie enforceable claim.
[12]
Prior
to considering the central issue of good cause, it is apposite to
deal with the trustees’ challenge to the locus standi
of the
witnesses to oppose this application. This challenge was predicated
on an argument pertaining to the purpose of s18(3) and
the
consequences of a failure by provisional trustees to obtain
authority, which, it was contended, resulted in the trustees being
personally exposed to the litigation costs. Reliance was placed on
Patel
v Paruk’s Trustee
[10]
(“
Patel”
)
wherein Tindall JA held, in relation to s73(1) of the Act, that the
provision prohibiting a trustee from initiating or defending
any
legal proceedings without the prescribed consent, was enacted as
between the trustee and the creditors, in order to protect
the estate
from being dissipated in litigation. It was argued that on this
basis, the witnesses, who were not creditors of the
insolvent estate,
lacked locus standi to oppose the trustees in seeking authority.
[13]
I agree with the argument advanced by the witnesses that Patel is
distinguishable as it pertained to trustees who were finally
appointed rather than provisional trustees and considering the
differences in language in the provisions of s73(1) and 18(3) of
the
Act. S18(3) specifically requires the sanction of a court and thus
judicial oversight. Moreover, in both
Warricker
and
Van
Zyl
, it was accepted that it was open to third parties who were
not creditors of the insolvent estate, but rather potential debtors,
to oppose provisional trustees’ request for authority under
s18(3), although it appears that their locus standi to do so
was not
expressly challenged in those proceedings.
[14]
Considering the challenges raised by the witnesses in the main review
proceedings to the authority of the provisional trustees,
in my view
they have a sufficient interest in the present application to oppose
it. It follows that the trustees’ challenge
to their locus
standi in this application must fail.
[15]
Returning to whether the trustees have established good cause for the
authority sought, the question here is what would constitute
good
cause in the context, not only of the institution of legal
proceedings by the introduction of a counter claim, but also in
the
context of opposing review proceedings instituted against provisional
trustees wherein they are cited as parties. I intend
to apply the
requirements enunciated in
Warricker
adapted, where necessary,
to fit the present context. The present application must be
considered in the context of all its peculiar
facts and taking into
consideration all relevant facts and factors which contribute to a
proper exercise of the discretion afforded.
[16]
I
am fortified in this view by the approach adopted by our courts in
the context of illustrating “good cause” for purposes
of
condonation under uniform r27 in consistently refraining from
attempting to formulate an exhaustive definition of what constitutes
“good cause” because to do so would unnecessarily hamper
the exercise of the wide discretion afforded to a court.
[11]
[17]
This application arises in circumstances where the trustees have not
sought to enforce claims of the insolvent estate against
third
parties, but where witnesses summonsed to an enquiry convened by the
Master have sought to review various decisions made
by the Master in
relation thereto, including the setting aside of the entire enquiry.
From the witnesses’ perspective, the
proceedings are aimed at
excusing their attendance from the enquiry. From the perspective of
the trustees, their opposition to
the review applications and their
counter application are aimed at securing the witnesses’
attendance and co-operation at
the enquiry. It was undisputed that
the evidence of the witnesses would be relevant to an investigation
of the insolvent’s
affairs.
[18]
The review proceedings were instituted at a time when only
provisional trustees had been appointed and no first meeting of
creditors has been held. It is common cause that such meeting is to
be convened by the Master. The trustees have explained the
reasons
why it has not been possible for the first meeting of creditors to be
held, despite some fourteen attempts on their behalf
to prevail on
the Master to convene such meeting. The delays which occurred were
occasioned by errors and problems at the Master’s
office and
delays attributable to the consequences of the National State of
Disaster due to the COVID 19 pandemic. The witnesses
have not
strenuously challenged these averments or produced cogent evidence
controverting the trustees’ evidence. At present,
there is no
clarity regarding when the first meeting of creditors will be held
and final trustees appointed.
[19]
There is further merit in the trustees’ contention that if
authority is not granted, the review applications may proceed
on a
default basis, more so as the Master has in the reports filed of
record indicated that he will abide the court’s decision.
[20]
On the facts, I am satisfied that the trustees have illustrated a
necessary degree of urgency and it cannot be said that in
these
circumstances the trustees should wait until trustees are finally
appointed before steps are taken in relation to the pending
review
proceedings.
[21]
The next issue which requires consideration is “prima facie
enforceability”. Related thereto is a consideration
of whether
the interests of creditors would not be prejudiced by the earlier
institution of the proceedings. It is necessary to
adapt the criteria
enunciated in
Warricker
to match the present factual matrix.
Here, there are five pending review proceedings and one counter
application in which the trustees
seek to obtain novel relief
invoking ss165 and 166 of the Constitution to obtain judicial
oversight as a process in aid to ensure
the witnesses’
attendance and co-operation at the enquiry.
[22]
The merits and demerits of the various applications will be fully
canvassed and determined in the main review proceedings and
it would
be inappropriate to predetermine such issues in the present
application. In the present proceedings, this court has not
had the
benefit of the substantial affidavits filed in the main review
applications, nor of full argument on all the issues raised
therein.
What must be determined is whether the trustees have illustrated,
prima facie, that they have reasonable grounds for their
opposition
of the review proceedings and a justifiable basis for their
counterapplication with some prospects of success.
[23]
The trustees argued that they have met this threshold. The witnesses
on the other hand argued that the trustees have not illustrated
any
good cause for their opposition and no prospects of success in
relation to their counterclaim.
[24]
The witnesses’ argument pertaining to the trustees’
opposition of the review proceedings was predicated on the
contention
that the nature of the enquiry under s152 was a Master’s
enquiry, who controls, regulates and conducts it. It
was argued that
it was incumbent on the Master to defend the review proceedings, with
the trustees having no place in doing so
as the review applications
did not pertain to their conduct, but rather to the conduct and
rulings of the Master. It was argued
that the roll of the trustees
was thus limited to interrogating witnesses after the Master had
completed his examination of the
witnesses and thus there could not
be any good reason or good cause for the trustees to oppose the
review proceedings and it could
not be in the interest of the
insolvent estate to do so.
[25]
The
decisions under review were made by the Master after due
consideration of the facts and are valid until set aside
[12]
.
Prima facie, it cannot be stated on the facts that those decisions
are invalid and the trustees have reasonable grounds to oppose
the
setting aside of the Master’s decisions and the costs orders
sought against the insolvent estate.
[26]
An important consideration is that the review proceedings were
initiated, not by the trustees, but by the witnesses. The witnesses
recognised that the trustees may have an interest in the review
proceedings and cited them as respondent parties therein.
[27]
In three of the review proceedings, substantive relief in the form of
certain costs orders were sought against the insolvent
estate. The
witnesses belatedly and after full opposition by the trustees,
shortly before the present hearing sought to abandon
the costs order
sought in the application under case number 40681/2019. I agree with
the trustees that this belated abandonment
of one of the costs orders
does not assist the witnesses.
[28]
As
parties to the application the trustees are further entitled to
participate in the review proceedings. As stated by the Supreme
Court
of Appeal in
Van
Staden NO v Pro- Wiz (Pty) Ltd
[13]
:
“
Furthermore,
as a matter of principle, where a party is cited in legal proceedings
it is entitled without more to participate in
those proceedings. The
fact that it was cited as a party gives it that right. Here the
liquidators were cited and decided to resist
the application. They
were entitled to do so by the mere fact of their joinder as parties”.
[29]
There is merit in the argument advanced by the witnesses that the
right to participate in the review proceedings does not automatically
clothe the trustees with the authority to do so or excuse them from
obtaining the requisite authority. Their participation must
however
be effective.
[30]
These are weighty factors requiring consideration in determining
whether authority to oppose the proceedings should be granted.
It is
not for present purposes necessary to determine whether these are
self-standing factors requiring consideration or whether
they form
part of the enquiry pertaining to the “prima facie enforcement”
criteria enunciated in
Warricker
.
[31]
In terms of s152(4) of the Act, the trustees or their agents are
authorised to interrogate a person summonsed in regard to
any matter
relating to the insolvent or his estate or the administration of the
estate. It matters not whether such entitlement
arises after any
interrogation by the Master of such witness. The trustees thus have a
statutory entitlement to interrogate the
witnesses.
[32]
Moreover, in terms of s151 of the Act any persons whose interests are
affected by review proceedings are entitled to notice.
Notice to the
trustees is deemed to be notice to all creditors of the estate. The
trustees are enjoined to protect the interests
of the body of
creditors of the insolvent estate. The trustees thus have an interest
in the review proceedings and prima facie
in the interrogation of the
witnesses, factors which operate in favour of granting the authority
sought.
[33]
Turning to whether the creditors of the insolvent estate would be
prejudiced by the opposition of the review proceedings, there
is
merit in the trustees’ contention that their opposition to the
review proceedings advanced the interests of the insolvent
estate’s
body of creditors, considering the wide range of relief sought in the
various review applications, aimed at shielding
the witnesses from
the enquiry and the setting aside of the entire enquiry and all which
occurred in relation thereto.
[34]
The witnesses further objected to the granting of authority to
conduct further litigation aimed at securing their attendance
at the
enquiry on the basis that was too wide and constituted an “open
sesame” for relief, warned against by Van Oosten
J in
Warricker
. In my view, the argument lacks merit.
[35]
The authority sought by the trustees is not open ended and is
exclusively aimed at any litigation pertaining to the attendance
of
the witnesses at the enquiry. Considering the undisputed facts and
the history of litigation between the parties, I am persuaded
that it
would be in the interests of the insolvent estate’s body of
creditors to grant the relief sought as ultimately the
costs of any
further applications for authority would affect their interests.
[36]
For these reasons I am persuaded that the trustees have shown good
cause for the authority sought to oppose the review proceedings.
[37]
The authority sought to institute the counter application under case
number 41368/2019 stands on a slightly different footing.
Therein,
the trustees raise novel and complex issues invoking constitutional
principles in order to secure the attendance and cooperation
of the
witnesses at the enquiry and seek to invoke the provisions of ss165
and 166 of the Constitution.
[38]
The
witnesses argued that the counter application had no prospects of
success and that the trustees could not seek, nor a court
grant, the
relief sought therein as no provision of the Insolvency Act or the
common claw empowered the trustees to seek the relief
claimed.
Reliance was placed on
Schulte
v Van den Berg and Others NNO
[14]
in arguing that no prima facie enforceable case was made out by the
trustees.
[39]
On this basis the witnesses sought not only refusal of the authority
sought but also dismissal of the counter application,
which it was
argued “were consequences which flow naturally from a refusal
of the authority sought”. This relief was
raised for the first
time in the heads of argument filed on behalf of the witnesses and
was not raised or foreshadowed in their
answering papers, enabling
the trustees to respond thereto.
[40]
The approach adopted by the witnesses by belatedly and unexpectedly
seeking dismissal of the counter application in the present
proceedings is inappropriate and the contention that it should follow
as a “natural consequence” of a refusal of authority,
lacks merit. Refusal of authority in the present application, would
not be dispositive of the counter application. Authority may
be
obtained in due course once a first meeting of creditors is held and
trustees are finally appointed. Moreover, a dismissal of
the counter
application at this stage would effectively result in a piecemeal
determination of those review proceedings and a final
determination
on important issues without any consideration of the application
papers filed in the main review proceedings.
[41]
I turn to a consideration of whether authority for the institution of
the counter application should be granted. There is merit
in the
trustees’ contention that it would be convenient to deal with
the counter application that is directed at securing
the witnesses’
attendance and cooperation at the enquiry as part of the main review
proceedings. For reasons already stated,
I am satisfied that the
trustees have illustrated the requisite urgency. The issue is whether
the trustees have illustrated sufficient
prima facie prospects of
success.
[42]
Whilst there is merit in the legal arguments advanced by the
witnesses pertaining to the common law and the provisions of the
Act,
the issues which arise in the counter application are not “ordinary”
in the sense of simple legal issues, a concept
to which I later
return.
[43]
The
trustees’ case is that they have made out a prima facie case
with some prospects of success as they seek relief in circumstances
where the presiding officer at the enquiry is not a judicial officer
and cannot issue a warrant of committal in terms of s66(2)
as read
with s152(6) of the Act. The Master ruled that one of the witnesses,
Mrs Levick failed to attend the enquiry on 20 November
2019 without a
reasonable excuse. That ruling is the subject matter of one of the
review applications. No warrant of committal
was issued as it would
have been constitutionally invalid. The trustees placed reliance on
the recognition by the Constitutional
Court in
De
Lange v Smuts NO
[15]
(“De
Lange”)
that
a committal to prison in terms of s66 is a legitimate form of process
in aid to ensure that the legitimate goals of insolvency
laws are
achieved and creditors protected.
[16]
Reliance was further placed on the finding of the majority in
De
Lange
that
the issue of a warrant would not unconstitutionally infringe a
witnesses’ substantive right of freedom and security of
person
under s12 of the Constitution, but that the procedural protection
afforded by the right to freedom, which guarantees in
s12(1)(b) that
there be no detention without a fair trial, required that the
presiding officer who issued the warrant be a judicial
officer so
that judicial oversight could be exercised.
[17]
The trustees argued that it is not only a magistrate who would be
able to issue a warrant of committal but that the High Court
can be
approached to perform the judicial oversight necessary to achieve the
procedural protection guaranteed in s12(1)(b of the
Constitution by
way of due process. The counter application is aimed at such relief
as a process in aid.
[44]
It is thus clear that the counter application raises complex and
novel issues which require a full and nuanced debate before
its
merits can be properly determined, with the benefit of all the papers
filed of record.
[45]
It
is apposite to refer to the approach adopted by Malan J (as he then
was) in
Johannesburg
Municipal Pension Fund v City of Johannesburg
[18]
wherein,
[19]
albeit in the context of interim interdictory relief pending review
proceedings adopted the following reasoning
[20]
:
“
All
the issues referred to involve difficult questions of law and none of
them can be described as ordinary. Nor is it desirable
to rule at
this interim stage that there is no prospect of success on any of
these bases of review. The issues are simply too involved
(‘a
serious question to be tried’) and of such gravity that they
cannot be, and should not be, disposed of in these
interim
proceedings”
.
[46]
Although the relief presently sought is not interim, the principles
are apposite in considering whether the authority sought
should be
granted. It cannot be concluded that the counter application has no
prospects of success. What can be safely concluded
is that the
counter application is not frivolous or vexatious and that there is a
serious question to be tried. In my view, the
trustees have met the
threshold of showing a prima facie enforceable claim, at the very
least on the basis of it constituting a
triable issue, although its
ultimate prospects of success can only be determined in the main
review proceedings.
[47]
I am further persuaded that the interests of creditors of the
insolvent estate will not be prejudiced by the institution of
the
counter application. Prima facie their interests would be advanced if
the witnesses’ attendance and cooperation at the
enquiry is
obtained. Although the granting of authority would shield the
trustees from personal liability for costs, an appropriate
costs
order
de bonis propriis
may be granted in the main review
proceedings if it is appropriate to do so. When considered in the
context of the main aim of s18(3)
of the Act, being to protect
creditors against liability for costs and the dissipation of assets
caused by a trustee’s ill-conceived
litigation, such aim will
not be thwarted by the granting of authority to institute the counter
application. Considering that the
Act was enacted well before the
Constitution, it would not be in the interests of justice to deprive
the trustees from authority
to pursue relief which would advance the
interests of the body of creditors of the insolvent’s estate.
[48]
For these reasons I am persuaded that the trustees have shown good
cause for the granting of the authority sought. It follows
that the
application must succeed.
[49]
In light of the conclusion reached it is not necessary to determine
the remaining issues raised, which only required consideration
in the
event that the authority was refused.
[50]
Albeit that the witnesses’ opposition to the application was
unsuccessful, it would not be appropriate to direct them
to pay the
costs of opposition, as sought by the trustees, considering that the
trustees’ challenge to their locus standi
was unsuccessful. In
my view, the costs of the application should be costs in the cause in
the various review applications.
[51]
I grant the following order:
[1]
The applicants are authorised in terms of
s18(3)
of the
Insolvency
Act, 24 of 1936
, as amended, to have litigated and to continue to
litigate in the legal proceedings under case numbers 40681/2019,
41368/2019,
526/2020, 13811/2020 and 12492/2020 and such other
litigation that may take place between the applicants and the first
and/or second
respondents in relation to the attendance of the first
and/or second respondents at the inquiry into the affairs of Martin
Ashley
Levick (Master’s Reference G474/2019) and any related or
ancillary litigation.
[2]
The costs of the application are to be costs in the cause in the main
proceedings under the above case numbers.
EF
DIPPENAAR
JUDGE
OF THE HIGH COURT
GAUTENG
DIVISION OF THE HIGH COURT
JOHANNESBURG
Electronically
submitted therefore unsigned
APPEARANCES
DATES
OF HEARING
:
19 November 2020
DATE
OF JUDGMENT
:
23 November 2020
APPLICANT’S
COUNSEL
:
Adv. BM Gilbert
APPLICANT’S
ATTORNEYS:
:
Fluxmans Inc
1
st
and 2
nd
RESPONDENT’S COUNSEL
: Adv. L.
Hollander
1
st
and 2
nd
RESPONDENT’S
ATTORNEYS
: Joseph John
Finlay Cameron
[1]
24 of 1936, as amended
[2]
Van Zyl and Another NNO v Kaye NO and Others
2014 (4) SA 452
(WCC)
para 46; Kessack’s Provisional Trustee v Kessack and Kessack
1919 WLD 31
at 33; Murray NO and Another v Rayman and Others [2016]
ZAGPPHC 459 (3 May 2016) para 35
[3]
Lane and Another NNO v Dabelstein and Others (Lane and Another
intervening)
1999 (3) SA 150
(C) at 163D; see also Kessack’s
Trustee supra 32-33, where in the context of the similarly worded
provision of
s57(3)
of the previous
Insolvency Act 3, it
was held
that the purpose of the provision is “to protect creditors
against the dissipation of assets and to guard against
defendants or
respondents being involved in litigation with an insolvent estate
from which they cannot recover costs if they
are successful”.
[4]
Van Zyl supra para 46; Kassack’s Trustee supra at 33
[5]
2003 (6) SA 272
(W) at 277H-J, approved in Van Zyl supra para 47
[6]
Para 5
[7]
Although the judgment, which dealt with the setting aside of
voidable dispositions, was overturned on appeal in Dabelstein v
Lane
& Fey NNO
[2000] ZASCA 156
;
2001 (1) SA 1222
(SCA), it was not on this point.
[8]
At 277H-I
[9]
2014 (4) SA 452
(WCC) para 47
[10]
1944 AD 469
a
[11]
Silber v Ozen Wholesalers (Pty) Ltd
1954 (2) SA 345
(A) at 353A;
Ford v Groenewald
1977 (4) SA 224
(T) at 225E-G
[12]
Oudekraal Estates (Pty) Ltd v City of Cape Town and Others
2004 (6)
SA 222
(SCA)
[13]
2019 (4) SA 532
(SCA) at para 13
[14]
1990 (1) SA 500 (C)
[15]
De Lange v Smuts NO 1998 (3) SA 785 (CC)
[16]
De Lange supra para 33
[17]
DE Lange supra paras 57 and 61
[18]
2005 (6) SA 273
(W) at paras 8-9
[19]
Relying on the dictum of Heher J in Ferreira v Levin No and others;
Vryenhoek and Others v Powell NO and Others
1995 (2) SA 813
(W) at
824I-825D who cited with approval the approach adopted in American
Cyanamid Company v Ethion Ltd [1975] 1 All SA ER 504
(HL) that an
applicant for interim relief should show that ‘the claim is
not frivolous or vexatious; in other words that
there is a serious
question to be tried.
[20]
At para 9 282I-283A