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[2010] ZAGPPHC 32
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Strydom v Additional Magistrate Kempton Park and Others (9208/08) [2010] ZAGPPHC 32 (16 April 2010)
IN
THE HIGH COURT OF SOUTH AFRICA
/ES
(
NORTH
GAUTENG HIGH COURT. PRETORIA
)
CASE
NO: 9208/08
DATE:
16/04/2010
IN
THE MATTER BETWEEN
JUAN
LATEGAN STRYDOM APPLICANT
AND
ADDITIONAL
MAGISTRATE KEMPTON PARK 1
st
RESPONDENT
PETRUS
JACOBUS MARYN VAN STADEN N.O. 2
nd
RESPONDENT
NAKEDI
MATHEWS PHOSA N.O. 3
rd
RESPONDENT
THE
MASTER OF THE HIGH COURT 4
Tii
RESPONDENT
GERINGS
ATTORNEYS 5
th
RESPONDENT
JUDGMENT
MAKGOBA.
J
[l]
The applicant is an unrehabilitated insolvent. The second and third
respondents are the appointed trustees in the applicant's
insolvent
estate. The second and third respondents requested the fourth
respondent to authorise the holding of an enquiry in terms
of
section
152
of the
Insolvency Act no 24 of 1936
for investigation of certain
affairs of the insolvent estate. The fourth respondent did authorise
and in fact held the said insolvency
enquiry. However, at a certain
stage the fourth respondent ordered that the enquiry should proceed
before the first respondent,
a magistrate of Kempton Park.
[2]
The present application is aimed at reviewing and setting aside the
decision of the fourth respondent in authorising the insolvency
enquiry to proceed before the first respondent. The applicant calls
for a review and setting aside of the following:
the
order by the fourth respondent in terms whereof an insolvency
enquiry-is to proceed before the first respondent;
the
whole of the proceedings of the insolvency enquiry which proceeded
before the first respondent; all witness subpoenas issued
by the
first respondent;
all
directions given by the first respondent pursuant to the subpoenas
issued as well as the evidence given in terms thereof:
the
warrants for arrest pursuant to the alleged non-compliance with the
aforesaid directions;
in
addition hereto the applicant claims costs
de
bonis propriis
against
the second, third and fifth respondents.
[3]
The fifth respondent is the second and third respondents' attorneys
of record. It is not understood why the applicant chose
to cite the
fifth respondent in these proceedings and more so why a special order
of costs is sought against the fifth respondent.
In my view the
circumstances of this case do not justify the inclusion of the fifth
respondent as a party to these proceedings.
[4]
As pointed out above the nature of the proceedings are to review and
set aside the decision of the Master of the High Court
(fourth
respondent) to order that the insolvency enquiry be proceeded with
before the magistrate of Kempton Park (first respondent).
The legal
question which immediately comes to mind is whether such a decision
of the Master is reviewable or not. Counsel for the
applicant,
apparently realising the difficulty he is facing as to whether the
decision is reviewable, argued that the decision
to be reviewed is
not the decision to hold an enquiry
simpliciter,
but
the review of the decision to hold the enquiry in a particular
manner, ie before the first respondent.
[5]
The relevant portion of
section 152(2)
of the
Insolvency Act. no 24
of 1936
. reads as follows:
"If
at any time after the sequestration of the estate of a debtor ... the
Master is of the opinion that the insolvent ... is
able to give any
information which the Master considers desirable to obtain ... he may
by notice in writing delivered to the insolvent
... summon him to
appear before the Master or before a magistrate or an officer in the
public service mentioned in such notice
... and to furnish the Master
or the officer before whom he is summoned to appear with all the
information within his knowledge
concerning the insolvent or
considering the insolvent's estate or the administration of the
estate."
[6]
It has been held that the decision to make enquiries (or to hold an
enquiry) is simply an investigative procedure and therefore
not an
"administrative act" which affects the rights of parties
and which is therefore, not reviewable. See
Nedbank
Ltd
v
The
Master of the High Court, Wirwatersrand Local Division, and Others
2009
3 SA 403
(WLD).
In
Roux
v
Die
Meester en 'n Ander
1997
1 SA 815
(T) at 824B-C the court reiterated that an enquiry under
section 152
of the
Insolvency Act, 1936
was purely investigative in
nature and did not envisage a finding determining or detrimentally
affecting a person's rights and
consequently a constitutional
principle providing for the right to procedurally fair administrative
action where a person's rights
or legitimate expectations were
affected or threatened, could not be applicable and thus could not
help the applicant.
[7]
In
Podlas
v
Cohen
& Bryden NNO and Others
1994
4 SA 662
(T) SPOELSTRA. J. in dealing with the issue of
constitutionality of an enquiry stated the following:
"The
Master's decision to hold an enquiry and to issue the notices to
persons who might be called to testify did not prejudicially
affect
the witnesses' liberty or property or any other existing right that
would require the Master to apply the
audi
alteram partem
rule.
This notices are simply subpoenas. A person who is subpoenaed to give
evidence before any legally constituted tribunal empowered
to
subpoena witnesses is. generally speaking, obliged to obey it. This
seems to be so because he or she is called upon to perform
what may
be described as a public duty
[Van
Aswegen
v
Lombard
1965
3 SA 613
(A) at 623E].
Personal
freedom, therefore, becomes subordinate to the public interest."
[8]
Counsel for the applicant argued further that the present case is to
be distinguished from the abovementioned cases in that,
in the
present case, the decision which the applicant seeks to attack, goes
beyond the mere decision to hold an enquiry. That it
is a decision to
transfer an enquiry from where it had begun before the Master to the
first respondent, being a magistrate in a
different magisterial
jurisdiction. I shall provide an answer to this argument when 1 later
deal with the question as to whether
the applicant was prejudiced by
the transfer and subsequent holding of the insolvency enquiry in
Kempton Park.
[9]
The Master has an unfettered discretion to order an enquiry in terms
of
section 152(2)
of the
Insolvency Act to
be held either before
himself or a magistrate or an officer in the public service. No
particular circumstances are required to
exist for an enquiry to be
held before a magistrate or officer in the Public Service as opposed
to an enquiry to be held before
the Master. The witnesses have no
right to claim that the enquiry should be held before the Master and
not before a magistrate
or any other officer in the Public Service.
In my view no rights of any of the witnesses including that of the
applicant have been
prejudicially affected by the Master's decision
to hold the enquiry before a magistrate. See
Roux
v
Die
Meester en 'n Ander, supra.
[10]
The applicant goes further to attack the Master's decision to hold
the enquiry before a magistrate on a point of jurisdiction.
Counsel
argues that the decision resulted in the "transfer" of a
previously closed enquiry to a magistrate in a jurisdiction
where the
insolvent was not residing, neither at the time nor at the time of
the sequestration and to a district from which none
of the witnesses
were from. That it involved costs, inconvenience, the difficulty in
obtaining legal representation and the whole
of the disputes
regarding the issues of subpoenas.
[11]
This ground of objection based on jurisdiction is ill-founded. The
insolvency proceedings before a magistrate are not held
in terms of
the Magistrates' Courts Act or the Rules of that court. It is
proceedings in terms of
section 152(2)
of the
Insolvency Act. No
witness
and neither the insolvent can object to a particular
magistrate conducting the enquiry on the grounds that he is not
resident within
the jurisdiction of that magistrates court.
[12]
An important consideration that may play a role is whether the
location where the enquiry is to be held will impose undue
inconvenience on the witness summoned to appear before the
magistrate. In my view no undue inconvenience will be caused by
holding
the enquiry in Kempton Park taking into account the distance
between Kempton Park and Pretoria and/or Johannesburg. If for
instance
the Master ordered the enquiry to be held before a
magistrate in Durban, it will be a clear case where witnesses and the
insolvent
will be unduly inconvenienced and required to incur
unnecessary additional costs to attend the enquiry.
[13]
In
casu
the
magistrate's court in Pretoria was not available to hold the enquiry.
The nearest magistrate's court to where the applicant
was resident
and which was prepared to accommodate the insolvency enquiry was
magistrate's court of Kempton Park.
[14]
It should be pointed out that the best opportunity for the applicant
to have brought the present review proceedings was before
the enquiry
commenced before the first respondent. It is common cause that the
applicant has already attended the enquiry on several
occasions,
allowed the enquiry to be conducted and gave evidence at the enquiry.
Only when the shoe starts to pinch because there
are orders made
against him (amongst others, order to produce documents and warrant
of arrest) the applicant now turns around and
object to the enquiry
being continued with.
[15]
It is common cause that the first respondent issued a subpoena for
the applicant's initial appearance before him.
Section 152(2)
requires any subpoena to be issued by the Master. The second and
third respondents concede that the first respondent had no authority
to issue a subpoena. Counsel for the respondents argued that the fact
that the subpoena to secure the applicant's attendance at
the enquiry
by the first respondent is a formal defect or irregularity does not
taint the legality of the proceedings already held
thus far. He
further submitted that the applicant has failed to show that he has
suffered substantial injustice thereby and accordingly
has not shown
why the subpoena should be set aside.
[16]
I agree with counsel's above submission. The applicant has complied
with the subpoena and has attended the enquiry. On subsequent
sittings of the enquiry he was warned to appear and he complied. The
applicant cannot after he has attended the enquiry pursuant
to the
irregular subpoena apply for the subpoena to be set aside. The
question whether the subpoena was validly issued has now
become
academic and of no consequence. In any event the time to object to an
invalid subpoena is before you comply with it and
not after you have
complied with it.
[17]
It is only the initial subpoena issued in terms of
section 152(2)
of
the
Insolvency Act that
is required to be issued by the Master. In
terms of
section 152(3)
the first respondent had the authority to
issue a written notice to the applicant to appear before him again
and require him to
submit any further information or any book or
documents specified in such notice.
[18]
The orders and directions given to the applicant to produce documents
at the enquiry were given by a validly constituted tribunal
in the
applicant's presence. The applicant has not complied with the orders
and has not provided an acceptable excuse for his failure
to do so.
The first respondent was accordingly entitled to issue a warrant of
arrest for the applicant.
[19]
It is regrettable to note that the applicant has steadfastly refused
to comply with the orders and directions of the first
respondent. All
that the applicant has to do to escape his arrest and incarceration
is to comply with the orders. The choice is
his. The present
application by the applicant is clearly just an effort to delay and
frustrate the second and third respondents
in the execution of their
duties as trustees of the applicant's insolvent estate.
[20]
The application is accordingly dismissed with costs.
EMMAKGOBA
JUDGE
OF THE NORTH GAUTENG HIGH COURT
HEARD
ON: 29 MARCH 2010 FOR APPLICANT: N DAVIS SC
INSTRUCTED
BY: STRYDOM & BREDENKAMP ATTORNEYS FOR 2
nd
,
3
rd
AND 5
th
RESPONDENTS: J F STEYN INSTRUCTED BY: GERINGS ATTORNEYS
c/o
HENDRIETTE MULLER ATTORNEYS