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[2010] ZAGPPHC 599
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Ex parte: Opperman (59461/2009) [2010] ZAGPPHC 599 (5 May 2010)
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IN THE HIGH COURT
OF SOUTH AFRICA
(NORTH GAUTENG
HIGH COURT, PRETORIA)
CASE NO:
59461/2009
DATE: 5 MAY 2010
In
the ex
parte
application
of:
OPPERMAN
JOHANNES
MARTHINUS
........................................................................................
Applicant
(Identification
Number 6[...])
For voluntary
surrender of his estate
JUDGMENT
MAKGOKA, J
[1] This is an
application by the applicant for the surrender of his estate in terms
of section 4 of the Insolvency Act 24 of 1934.
When the matter was
mentioned on 19 March 2010, two creditors appeared through counsel,
objecting to the relief sought by the applicant,
on a simple basis
that the applicant had failed to disclose certain material facts
pertinent to the application. I stood the matter
down and allowed
counsel to file heads of argument on limited issues, which I would
deal with in a moment.
[2] The two
objecting parties are, on one hand, Mr and Mrs Van der Heyde (“the
van Heydes"), and Firstrand Bank, on the
other. The Van der
Heyde’s basis of objection is the failure by the applicant to
disclose that they had, on 17 March 2010,
obtained judgment against
the applicant in an amount of R625 000.00. (The judgment was pending
on the date on which the applicant’s
affidavit was signed).
[3]Firstrand
Bank is a secured preferrent creditor in respect of a mortgage bond
granted in its favour by the applicant. It opposes
the application on
the basis that should the judgment obtained by the Van der Heydes be
taken into consideration in calculating
the dividend, the benefit to
creditors would be significantly be smaller. Secondly, the objection
is that the applicant failed
to display utmost good faith required in
ex
parte
applications.
I am grateful to counsel for their helpful written arguments in this
regard.
[4] After hearing
brief argument by all three counsel I stood the matter down and
requested counsel to submit written argument,
limited to the
following questions: First, what effect does publication has on
pending litigation and secondly, what effect does
the judgment
obtained by the Van Heydes have on the present application.
[5] With regard to
the first question, it is clear from the unambiguous provisions of
section 5(1) of the Act that what is halted,
is the execution
process, and not the litigation itself. As to what effect the
judgment has on the present application, it is significant
to note
the following: although the judgment had not been granted as at the
date of the signature of the founding affidavit in
the present case,
the applicant was well aware of the debt that later gave rise to the
judgment. That the applicant failed to disclose
the said debt as a
contingent debt, must be viewed in very dim light.
[6]
In addition, it emerged after this application was set down that one
of the companies which the applicant stated his shareholding
therein
as one of his assets in his balance sheet, Redlex 315 (Pty) Ltd, had
been in voluntary liquidation since 14 October 2009.
This aspect too,
was not disclosed in his application. It has been repeated that in ex
parte
applications,
a full and frank disclosure of all facts is expected of applicants.
See
Schlesinger v
Schlesinger
1979
(4) SA 342
(W).
[7]
The failure of the applicant to disclose the very material facts as
discussed above, erodes considerably, in my view, the
bona
fides
of
the applicant. I would therefore dismiss the application on this
basis alone.
[8]
There is another basis on which the application should be refused.
That relates to the valuation of the immovable properties.
In
Ex
Parte SA Obunjala & Five Similar Applications
(Case
No.: 53146/2009, Gauteng North, Pretoria, unreported), Bertelsman J
comprehensively dealt with the aspect, and how valuations
in these
circumstances should be carried out. The valuation method used in
this application is far short of the requirements set
out in the said
case.
[9] For this
additional reason the application should be dismissed. The
intervening creditors are entitled to their costs. Their
intervention
assisted in placing the true facts before court. The applicant must
bear their costs.
[10] I therefore,
make the following order:
1. The application
for voluntary surrender is refused.
2.
The
applicant is ordered to pay the costs of both the first and second
intervening parties.
T. M. MAKGOKA
JUDGE OF THE HIGH
COURT
Date of hearing :
24 March 2010
Judgment
Delivered : 5 May 2010
For the Applicant
: Adv. A. J. Swanepoel
Instructed
by :
M. Jordaan Attorneys,
Pretoria
For the
Intervening Party: Adv. A. Van der Westhuizen
Instructed by :
(Attorney’s name not supplied)
For the Second
Intervening Party: Adv. M. Basson
Instructed by :
(Attorney’s name not supplied)