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[2011] ZAGPPHC 97
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Firstrand Bank Limited v Tonkin and Another (42034/2010) [2011] ZAGPPHC 97 (20 May 2011)
NOT
REPORTABLE
IN
THE NORTH GAUTENG HIGH COURT
PRETORIA
(REPUBLIC OF SOUTH AFRICA)
Case
No:42034/2010
Date:
20/05/2011
FIRSTRAND
BANK
LIMITED
........................................................................................
Applicant
v
WILLIAM
PETER
TONKIN
................................................................................
1ST
Respondent
ALIDA
TONKIN
...................................................................................................
2nd
respondent
Return
day of provisional order of sequestration. Intervention
Coram:
Sapire AJ
JUDGMENT
This
was the return day of a provisional order of sequestration in terms
of which William Peter Tonkin and his wife, Alida Tonkin
were
provisionally sequestrated.
B
J K Property Group (Pty) Ltd has appeared to intervene and to seek
the discharge of the provisional order.
The
basis of the opposition is as follows:
(a)
The intervening party is in terms of a Deed of Sale the purchaser of
the main asset in the estate of the Respondents namely
Plot 179,
Leeuwfontein, Pretoria.
(b)
The intervening creditor claims that it will be severely prejudiced
if the Respondents are placed in final sequestration. This
it is said
gives the intervening party the necessary locus standi to bring the
application.
(c)
The contract in terms of which the intervening creditor purchased the
property from the Respondents is an agreement in terms
of the
alienation of Land Act, No 68 of 1981. The intervening creditor
claims a vested interest and/or a substantial or direct
interest in
the proceedings before the Court.
The
basis of the opposition is that the intervening party seeks to
demonstrate that the advantage to creditors on which the Applicant
relies is illusory. The valuation by the Applicant of the property is
Rl 800 000, 00. This the intervening party says is incorrect
and a
more probable value is Rl 500 000, 00 and could be as low as Rl 000
000,00 in the current recess period.
The
contention is that based on the independent valuation by the
intervening party that there will be no dividend paid to concurrent
creditors.
It
is common cause that the Respondents have not been completely
truthful in compiling their state of affairs presented in an earlier
application for the surrender of their estate.
The
Applicant which seeks confirmation of the Rule has indicated that the
advantage to creditors is not confined to the dividend
which may be
expected to accrue. What is of importance is that the trustee would
be able to investigate the affairs of the Respondents
and explore the
possibility that other assets should be included in the insolvent
estate.
What
is required is that the Court should be satisfied that there is a
reasonable prospect not necessarily likelihood but a prospect
which
is not too remote that some pecuniary benefit will result to
creditors. The circumstances surrounding the insolvency and
the sale
of the property bear investigation.
The
strange thing about the sale is that it was on terms but the
Respondents had the right to remain in occupation paying a rental
of
such a magnitude that the instalments of the purchase price would
never be completed.
In
any event the intervening creditor has its remedy in terms of the Act
applicable to its purchase and there is no reason why it
should not
avail itself of those provisions.
Accordingly,
there is no reason why the provisional order should not be confirmed
and the order of the Court is:
The
provisional order is confirmed.
SAPIRE
AJ
APPLICANT'S
ATTORNEY :RORICH. WOLMARANS & LUDERITZ INC
Block
C, Equity Park
Brooklyn
Road BROOKLYN PRETORIA
Ref:
R MEINTJESjes/b3/f302910
APPLICANT'S
COUNSEL: ADV L MEINTJIES
INTERVENING
CREDITOR: B1 KRUGER INCORPORATED
31
Lynburn Avenue LYNNWOOD M.ANOR PRETORIA
B
J KRUGERTON002
COUNSEL
FOR INTERVENING CREDITOR:ADV K ALHEIT