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[2022] ZAGPPHC 319
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J.K.B v H.B (A97/2021) [2022] ZAGPPHC 319 (13 May 2022)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
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SAFLII
Policy
IN THE HIGH COURT
OF SOUTH AFRICA
(GAUTENG DIVISION,
PRETORIA)
Case No. A97/2021
REPORTABLE:
YES/
NO
OF INTEREST TO OTHER
JUDGES:
YES
/
NO
REVISED
Yes
13/5/2022
In the matter between:
B[....],
K[....]
J[....]
APPELLANT
And
B[....],
H[....]
RESPONDENT
Coram:
Mngqibisa-Thusi, Mali
et
Millar JJ
Heard
on
: 4 May
2022
Delivered:
13 May 2022 – This judgment was
handed down electronically by circulation to the parties'
representatives by email, by being
uploaded to the
CaseLines
system of the Gauteng Division and by release to SAFLII. The date and
time for hand-down is deemed to be 10H00 on 13 May 2022.
Summary:
Failure by appellant to furnish
security – subsequent voluntary surrender by appellant of his
estate – trustee evincing
no intention to pursue appeal –
appeal dismissed with costs.
ORDER
On
appeal from:
The High Court,
Pretoria (Khumalo AJ sitting as Court of first instance):
(1)
The appeal is dismissed with costs.
JUDGMENT
MILLAR
J
1.
This is an appeal against a judgment handed down on 25 June 2020. The
action between
the parties concerned the determination of the amount
of the accrual of the appellants estate during the marriage between
himself
and the respondent that had since ended in divorce.
2.
Leave to appeal was granted by the
court a quo
against its
order that the appellant pay to the respondent the sum of R2 512
748.32 being one half of the accrual. The appellant
then proceeded to
prepare the appeal record and for enrolment.
3.
The parties were unable to agree on the amount of the security for
costs
[1]
that should be provided by the appellant. This dispute was
subsequently put before the registrar and on 4 October 2021, the
amount
of security to be put up by the appellant was determined by
the registrar to be R195 350.00.
4.
By the time that the security had been determined the appeal had
already been
set down for hearing. The appellant failed to furnish
security despite being requested to do so on several occasions.
5.
On 13 December 2021 the appellants attorneys withdrew. No new
attorney was ever
appointed to continue with the prosecution of the
appeal.
6.
On 8 March 2022, the respondent’s attorney was presented with a
fait
accompli
that the appellant had, without notice to the respondent, applied
for, and been granted an order for the voluntary surrender of
his
estate as insolvent on 22 February 2022
[2]
.
7.
The notification had come from the appellants attorney who had
represented him
in those proceedings – it suffices to say that
there can be no doubt that the respondent was deliberately kept
ignorant of
the appellants intention to surrender his estate so that
she could not, had she so chosen, oppose the application.
8.
The application for sequestration was placed before us by the
respondent. In
his affidavit in that application, the appellant
asserted:
‘
I
confirm that I wanted to appeal the ruling and leave was granted to
appeal but I am at that stage that I, nor the Company have
any funds
to proceed with the Appeal and even if I am successful with the
appeal, my estate would still be insolvent, and an amount
will be due
to my ex-wife.’
9.
The respondent’s attorney ascertained the identity of the
trustee in the
appellants estate and wrote to the trustee on 12 April
2022. In the letter the trustee was invited to withdraw the appeal
and tender
costs having regard to the failure to furnish security.
The response from the trustee, received on 26 April 2022 was that the
appeal
had been:
‘
Noted,
your client is noted as a creditor in the insolvent estate and should
submit a claim.’
10.
From the assertion of the appellant in his sequestration application
and the vague response
of the trustee, it is made plain that the
appeal was not going to be pursued by the trustee. Indeed, there was
no appearance for
the appellant when the appeal was called. The
respondent seeks an order for the dismissal of the appeal with costs.
There is in
the circumstances no reason why such an order should not
be granted.
11.
Accordingly, I propose that the appeal be dismissed with costs.
A
MILLAR
JUDGE
OF THE HIGH COURT
GAUTENG
DIVISION, PRETORIA
I
AGREE, AND IT IS SO ORDERED
N
MNGQIBISA-THUSI
JUDGE
OF THE HIGH COURT
GAUTENG
DIVISION, PRETORIA
I
AGREE
N
MALI
JUDGE
OF THE HIGH COURT
GAUTENG
DIVISION, PRETORIA
HEARD
ON:
4 MAY 2022
JUDGMENT
DELIVERED ON:
13 MAY 2022
NO
APPEARANCE FOR THE APPELLANT
COUNSEL
FOR THE RESPONDENT:
ADV C VAN SCHALKWYK
INSTRUCTED
BY:
ARTHUR CHANNON ATTORNEYS
REFERENCE:
MS O SCHEEPERS
[1]
Rule
49(13) of the Uniform Rules of Court provides that unless the court
granting leave to appeal has ordered that the obligation
to provide
security is waived in whole or in part, the obligation to do so
remains upon the appellant. Where the parties are
unable to agree on
the amount of the security as in the present case, the matter is
submitted to the registrar for decision.
[2]
In
terms of
section 6(1)
of the
Insolvency Act 24 of 1936