About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Eastern Cape High Court, Port Elizabeth
SAFLII
>>
Databases
>>
South Africa: Eastern Cape High Court, Port Elizabeth
>>
2011
>>
[2011] ZAECPEHC 53
|
|
Abader and Another v Gillespie (3525/2011) [2011] ZAECPEHC 53 (2 December 2011)
IN
THE HIGH COURT OF SOUTH AFRICA NOT REPORTABLE
EASTERN
CAPE, PORT ELIZABETH
Case
No.: 3525/2011
Date
Heard: 1 December 2011
Date
Delivered: 2 December 2011
In
the matter between:
DEBORAH
ABADER
….......................................................
First
Applicant
NASIEM
ABADER
….....................................................
Second
Applicant
and
PRUDENCE
GILLESPIE
….....................................................
Respondent
JUDGMENT
EKSTEEN J:
[1] This is an application in terms
of Rule 42 of the Uniform Rules of Court for the rescission of a
provisional order of sequestration
granted on 15 November 2011.
[2] The undisputed facts are that
the respondent herein (the applicant in the main application to whom
I shall refer herein as the
respondent) caused an application for the
sequestration of the applicants (the respondents in the main
application to whom I shall
refer to herein as the applicants) to be
issued. The notice of motion commenced by giving notice to the
respondent that an application
would be made to this court on 15
November 2011 for the relief set out in the notice of motion. The
relief the respondent sought
in terms of the notice of motion was a
provisional order of sequestration of the applicants’ estate
and a rule
nisi
calling upon parties to show cause on the
stipulated return day why such order should not be made final. The
notice of motion concludes
in the following terms:
“
TAKE
NOTE THAT
if you wish to oppose this application you must notify the
Applicant’s attorney, by no later than
12h30
,
on
FRIDAY
11 NOVEMBER 2011
of your intention and thereafter file such opposing papers as you may
wish to file by no later than
12h30
on
FRIDAY
25 NOVEMBER 2011
.”
[3] The notice of motion was duly
served on the applicants on 7 November 2011. The applicants consulted
Attorney Randell and notice
of their intention to oppose the relief
sought in the notice of motion was timeously given by filing in the
court file a notice
of intention to defend and faxing a copy thereof
to the respondent’s attorney. In these circumstances Attorney
Randell advised
the applicants that it was not necessary for them to
attend court on 15 November 2011.
[4] Notwithstanding the notification
of their intention to oppose the relief sought in the notice of
motion and the invitation extended
to the applicants to file their
opposing papers by 25 November 2011 the respondent nevertheless
sought and obtained a provisional
sequestration order of the estates
of the first and second applicants herein on 15 November 2011. A
transcript of the proceedings
on 15 November 2011 is annexed to the
applicants’ papers. The following exchange is reflected
therein:
“
COURT
There is a notice of opposition that has been filed here on 11
th
of November.
COUNSEL
I believe that is correct M’Lady. In any event M’Lady I
believe there is no appearance here today and there has been
no
further papers filed with regard to that notice of opposition and
M’Lady. I would submit that in the circumstances the
statutory
requirements regarding service had been complied with. That a
prima
facie
case has been made out which would satisfy Your Ladyship
that a provisional order would be justified in the circumstances and
if
Your Ladyship is satisfied, I would move M’Lady for an order
in terms of paragraphs 1, 2, 3 and 4 of the notice of motion
before
Your Ladyship …”
[5] In this manner the order was
obtained in the absence of the applicants.
[6] On the same day the granting of
the order came to the notice of Attorney Randell. Attorney Randell
immediately contacted the
respondent’s attorney of record. The
respondent’s attorney informed Attorney Randell that he
believed that the matter
could have proceeded in court because there
was no appearance on behalf of the applicants. Attorney Randell, on
behalf of the applicants,
requested of the respondent’s
attorney to agree that they return forthwith to court to inform the
presiding Judge that the
order had been granted in error.
Respondent’s attorney undertook to consult with his counsel and
later reverted to Attorney
Randell stating that the respondent would
not agree to return to the court. He advised Attorney Randell that if
he wished to reverse
the order he should bring a substantive
application.
[7] The applicants now contend that
the order was erroneously sought and/or granted as the process was
tainted by irregularity.
On behalf of the respondent it is argued
that no irregularity has occurred, the matter was correctly enrolled,
the presiding Judge
was apprised of the notice of opposition and the
order was properly granted. He argues that an order for the
provisional sequestration
may, on the authority of the Insolvency
Act, 24 of 1936 (herein referred to as “the
Insolvency Act&rdquo
;)
be sought
ex parte
. Rule 6(5) of the Uniform Rules does
therefore not, so the argument runs, apply to an application of this
nature. The notice of
motion, it is argued, notifies that a
provisional order would be sought on the 15
th
of November
and therefore, because the applicants had not appeared nor filed
opposing papers prior to the 15
th
the court was entitled
to grant the order.
[8]
Section 10
of the
Insolvency Act
provides
that the court to which a petition for the sequestration of
an estate has been presented may grant such an order if it is of the
opinion that prima facie – “(a) the petitioning creditor
has established against the debtor a claim such as is mentioned
in
subsection (1) of
section 9
; and (b) the debtor has committed an act
of insolvency or is insolvent; and (c) there is reason to believe
that it will be to the
advantage of creditors of the debtor if his
estate is sequestrated.” Such a provisional order is granted
along with a rule
nisi
in respect of the envisaged final
order. The Act does not deal, however, with the procedures relating
to its enrolment.
[9] Rule 6 of the Uniform Rules
provides for two kinds of applications –
ex parte
applications and applications which are not brought
ex parte.
Rule 6(4) provides for applications brought
ex parte
to be as
near as may be in accordance with Form 2 of the first Schedule to the
Rules. All other applications must, in terms of
Rule 6(5), be as near
as may be in accordance with Form 2(a) of the Schedule. The essential
difference between the two is that
Form 2 does not provide for an
opportunity to oppose the application nor for the filing of opposing
papers prior to the granting
of the relief. That is because the
application is brought
ex parte
. All other applications are
brought on notice. The purpose of notice is, of course, to provide to
the respondents an opportunity
to oppose the granting of the relief
sought in the notice of motion. For that reason Form 2(a) is so
structured as to notify a
respondent in such an application of the
time frames which he must comply with if he wishes to oppose the
granting of the order.
[10] The
Insolvency Act does
not
require an application for provisional sequestration to be brought on
notice, however, in terms of the Eastern Cape Rules of
Practice
notification is required in certain limited circumstances.
[11] The phrase “
ex parte
application” is undefined. It has however repeatedly been held
that an “
ex parte
application” in our practice is
simply an application of which notice was as a fact not given to the
person against whom
some relief is claimed in his absence. See for
example
Simross Vintners (Pty) Ltd v Vermeulen
;
VRG
Africa (Pty) Ltd v Walters t/a Trend Litho; Consolidated Credit
Corporation (Pty) Ltd v Van der Westhuizen
1978 (1) SA 779
(T) at 783A;
Chesterfin (Pty) Ltd v Contract Forwarding (Pty)
Ltd and Others
2002 (1) SA (T) 155 at 165E-F; see also
Sizwe
Development v Auditor General, Transkei
1991 (1) SA 291
(Tk)
at 292I.
[12] It has, however, also been
repeatedly held that an application for a rule
nisi
is in
essence an
ex parte
application, with or without prior notice.
(Compare
Turquoise River Incorporated v McMenamin and Others
1992 (3) SA 653
(D&CLD) at 657D.) I am prepared to accept this
view to be correct. The effect thereof is that the
dies induciae
set out in section 27 of the Supreme Court Act 59 of 1959 and rule
6(5) do not apply. An application for a rule
nisi
can
accordingly be brought in terms of the provisions of rule 6(4) and in
accordance with Form 2 to the Schedule and it would make
no
difference if a respondent is notified in advance. This, however, the
respondent chose not to do.
[13] In the present matter the
application was as a fact brought on notice. It was not brought on an
ex parte
basis and it was, save for its introduction, not
couched in accordance with Form 2. The notice of motion expressly
stipulated the
time by when the applicants were to notify the
respondent of their intention to oppose the granting of the relief
set out in the
notice of motion. The applicants duly complied. In
these circumstances, in accordance with the express terms of the
notice of motion,
they were afforded time until 25 November 2011 to
file opposing papers. The obvious and inescapable consequence of this
communication
is that, in the event that the applicants notify the
respondent of their intention to oppose, the relief set out in the
notice
of motion would not be sought prior to the lapse of the time
afforded to the applicants to file their opposing papers. The
proposition
that the respondent was entitled, in these circumstances,
to move for the relief set out in the notice of motion on 15 November
2011 needs only to be stated to be rejected. What, one may rightly
ask, would be the purpose of filing opposing papers on 25 November
if
the relief which it seeks to resist has already been granted?
[14] At the hearing of the matter,
as appears from what I have already set out, counsel for the
respondent referred the presiding
Judge to the notice of intention to
oppose and proceeded to submit that because there was no appearance
on behalf of the applicants
and the applicants had filed no further
papers he was entitled to the order. He did not draw the attention of
the presiding Judge
to the provisions of the notice of motion and
that the respondent had expressly afforded the applicants until 25
November to file
their answering papers. On the contrary the
submission made tends to suggest to the presiding Judge that the
applicants were at
that stage in default, which they clearly were
not. In view of the process which the respondent had chosen to adopt
in her notice
of motion I do not think that there was any obligation
on the applicants to have appeared at the hearing, and certainly not
to
have filed papers. I have no doubt that had the attention of the
presiding Judge been drawn to the form of the notice of motion
and
the time provided to the applicants for the filing of opposing papers
the order would not have been forthcoming.
[15] I think that to have sought and
obtained the order in this manner was opportunistic and
surreptitious. To add insult to injury,
when the applicants sought
the opportunity to bring the provisions of the notice of motion and
the inevitable consequence of the
filing of the notice of intention
to defend to the attention of the presiding Judge the respondent’s
representatives resisted
it. The conduct of this matter falls to be
deprecated. It does not behove an officer of this court.
[16] Rule 42(1) of the Uniform Rules
of Court provides for the rescission of an order or judgment
erroneously sought or erroneously
granted in the absence of a party
affected thereby. It follows from what I have set out above that the
provisional sequestration
order was erroneously sought. It is not
disputed that it was sought in the absence of the applicants. Unlike
the provisions of
the common law where a rescission of judgment is
sought it is not required of the applicants under rule 42 to
establish “good
cause”. Once it is established that the
order has been “erroneously sought” and that it was
granted in the absence
of the applicants the applicants are entitled
to the rescission of the order.
Section 149(2)
of the
Insolvency Act
further
empowers a court to set aside an order made in terms of that
Act. This section places no part limitation on this power. I am
satisfied
that the applicants are entitled to such an order.
[17] On behalf of the respondent it
is argued that the applicants were not entitled to bring the
application as one of urgency and
that a proper case has not been
made for urgency. I do not intend herein to deal fully with the
various arguments in this regard.
Applications for sequestration are
of themselves inherently urgent. (Compare for example
Gouws v
Scholtz
1989 (4) SA 315
(NC).) It seems to me, by parity of
reasoning that where a provisional order of sequestration has been
improperly obtained and
application for rescission is inherently
urgent.
[18] Finally there remains the
question of costs. The applicants seek a costs order on a scale as
between attorney and client. The
respondent resists same. I have
recorded above my disapproval of the manner in which this matter was
dealt with on behalf of the
respondent and I consider, in the
exercise of my discretion, that for those reasons this is an
appropriate matter in which to make
an order of costs on a scale as
between attorney and client.
[19] In the result I make the
following order:
1. The provisional order of
sequestration granted on 15 November 2011 is rescinded.
2. The respondent is ordered to pay
the applicants’ costs of this application on a scale as between
attorney and client.
_______________________
J W EKSTEEN
JUDGE OF THE HIGH COURT
Appearances:
For Applicants:
Adv
Moorhouse
instructed by Michael Randell Inc,
Port Elizabeth
For Respondent:
Adv
Richards
instructed by Robert J Martindale,
Port Elizabeth