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[2018] ZAKZPHC 15
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Cruzn Motors (Pty) Ltd v Hussen Family Partnership and Others (10250/2017P) [2018] ZAKZPHC 15 (15 May 2018)
SAFLII
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Certain
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IN
THE HIGH COURT OF SOUTH AFRICA
KWAZULU-NATAL
DIVISION, PIETERMARITZBURG
Case
No: 10250/2017P
In
the matter between:
CRUZN
MOTORS (PTY) LTD
(REGISTRATION
NUMBER
2015/359259/07)
APPLICANT
and
THE
HUSSEN FAMILY
PARTNERSHIP
FIRST
RESPONDENT
NARGIS
HUSSEN
(ID
NO. […])
(WIDOW)
SECOND
RESPONDENT
MAHOMED
IMETIAZE HUSSEN
(ID
NO. […])
(UNMARRIED)
THIRD
RESPONDENT
MAHOMED
IMERANE HUSSEN
(ID
NO. […])
(UNMARRIED)
FOURTH
RESPONDENT
MAHOMED
OSMAN HUSSEN
(ID
NO. […])
(UNMARRIED)
FIFTH
RESPONDENT
MAAHOMED
NOOR HUSSEN
(ID
NO. […])
(UNMARRIED)
SIXTH
RESPONDENT
J U D G M E N T
STEYN
J
[1]
On 8 February 2018 the applicant sought the provisional sequestration
of the six respondents. The applicant alleged that
the first
respondent, The Hussen Family Partnership, is an existing
partnership, which is indebted to the applicant in an amount
of
R14 528 627 and that the respondents should be sequestrated
since they are unable to pay the said debt.
[2]
The application is opposed by all of the respondents inter alia on
the grounds that there is no partnership in existence and
none of
them are indebted to the applicant as alleged. In addition it
has been submitted that the application is procedurally
fatally
flawed. It has been alleged that the applicant has failed to
establish compliance with s 12 of the Insolvency Act
24 of 1936 (the
Act),
[1]
more importantly that
there are material factual disputes on the papers. The
respondents submitted further that the application
is an abuse of
process since the present application has been launched for purposes
of enforcing the payment of a debt which is
bona fide disputed.
[2]
Mr
Harpur
SC
,
acting for the second, third, fifth and sixth respondents, has
submitted that absent a declaratory order that a partnership existed,
especially in light of the material disputes of fact, no relief can
be granted against a non-existent entity.
[3]
Ms
Lennard
,
on behalf of the fourth respondent, contended that there are
irreconcilable disputes of fact on the papers that are incapable
of
resolution without a referral to oral evidence.
Parties
[3]
The applicant is a company in the motor trade that sells luxury,
exclusive and exotic vehicles (new and used). The applicant
identifies the respondents in the founding affidavit as follows:
‘
7.
The
first respondent is
THE HUSSEN FAMILY PARTNERSHIP
, which:
7.1
is a partnership, the partners whereof are the individual members of
the Hussen Family being the second respondent, the third
respondent,
the fourth respondent, the fifth respondent and the sixth respondent,
whose full and further particulars are set out
hereunder:
7.2
carries on various business activities including that of Dimo’s
Enterprises from premises situate at the Hussen Family
residence at
[…] R. Road, La Lucia, Durban and from offices situate at
office number F22, International Plaza, B Xuma (Commercial
Road),
Durban;
7.3
has been established and operates by virtue of the joint employment
of the resources and labour of the aforementioned individual
members
of the Hussen Family and the joint sharing of benefits by them
generated from the businesses of the Hussen Family.
8.
The
second respondent is
NARGIS HUSSEN
:
8.1
who is a major businesswoman;
8.2
who is a widow;
8.3
who resides at […] R. Road, La Lucia, Durban, KwaZulu-Natal;
8.4
with identity number […];
8.5
who is the mother of the third, the fourth, the fifth and the sixth
respondents;
8.6
who is a partner in the first respondent.
9.
The
third respondent is
MAHOMED IMETIAZE HUSSEN
:
9.1
who is a major businessman;
9.2
with the identity number […];
9.3
who resides at […] R. Road, La Lucia, Durban, KwaZulu-Natal;
9.4
who is unmarried;
9.5
who is also known as “
MOME”
;
9.6
who is a partner in the first respondent.
10.
The
fourth respondent is
MAHOMED IMERANE HUSSEN
:
10.1
who is a major businessman;
10.2
with identity number […];
10.3
who resides at […] R. Road, La Lucia, Durban, KwaZulu-Natal;
10.4
who is unmarried;
10.5
who is also known as “
DIMO”
;
10.6
who is a partner in the first respondent.
11.
The
fifth respondent is
MAHOMED OSMAN HUSSEN
:
11.1
who is a major businessman;
11.2
with identity number […];
11.3
who resides at […] R. Road, La Lucia, Durban, KwaZulu-Natal;
11.4
who is unmarried;
11.5
who is also known as “
NANA”
;
11.6
who is a partner in the first respondent.
12.
The
sixth respondent is
MAHOMED NOOR HUSSEN:
12.1
who is a major businessman;
12.2
with identity number […];
12.3
who resides at […] R. Road, La Lucia, Durban, KwaZulu-Natal;
12.4
who is unmarried;
12.5
who is also known as “
NOORIE”
;
12.6
who is a partner in the first respondent.’
[4]
[4]
Issues to be decided in this matter:
(a) Whether the applicant
has proved the existence of any partnership between the respondents.
(b) Whether the applicant
has proved the alleged acts of insolvency and the alleged
indebtedness.
(c) Whether the applicant
has discharged its
onus.
[5]
The founding affidavit filed by the applicant fails to state the
nature of the alleged partnership. There is no description
of
the legal nexus between the alleged indebtedness and each one of the
individual respondents. The general rule to make
out ones case
in the founding affidavit was deviated from by the applicant in
filing a replying affidavit that introduced further
grounds for the
respondents’ sequestration.
Legal
Principles
[6]
Corbett JA in
Kalil
v Decotex (Pty) Ltd & another
[5]
dealt with the quantum of proof in a provisional sequestration
application:
‘
The
use of the words “
prima
facie
case” in this context is somewhat anomalous as this term is
normally used to denote the
quantum
of proof required of a party upon whom the
onus
rests,
in
the absence of rebutting evidence
,
in certain situations, eg where at the end of the plaintiff’s
case the defendant applies for absolution from the instance;
or where
the defendant closes his case without calling rebutting evidence; or
in a criminal case where the defence asks for the
discharge of the
accused at the conclusion of the State case; or where an accused has
not given evidence and the question arises
as to whether there was
sufficient evidence led by the State to call for an answer from him;
or where in proceedings instituted
on notice of motion the respondent
takes the preliminary objection that the application does not make
out a
prima
facie
case for the relief claimed. The determination of the question
as to whether the evidence adduced by the party bearing the
onus
constitutes a
prima
facie
case is thus undertaken purely on a consideration of that evidence
and without regard to any evidence which may be, or may have
been,
adduced in rebuttal.’
[6]
[7]
It is necessary for purposes of this judgment to consider the
essentialia of a partnership and to measure the conduct of the
respondents against the said requirements in order to determine
whether any partnership has been established.
[7]
In
Butters
v Mncora
[8]
Brand JA emphasises the elements of a partnership as follows:
‘
The
three essentials are, firstly, that each of the parties brings
something into the partnership or binds themselves to bring something
into it, whether it be money, or labour, or skill. The second
element is that the partnership business should be carried
on for the
joint benefit of both parties. The third is that the object
should be to make a profit. A fourth element
proposed by
Pothier, namely, that the partnership contract should be legitimate,
has been discounted by our courts for being common
to all contracts
(see eg
Bester
v Van Niekerk
supra at 784A).
[9]
[8]
In
Badenhorst
v Northern Construction Enterprises (Pty) Ltd
[10]
the court held:
‘
A
winding-up petition is not a legitimate means of seeking to enforce
payment of a debt which is
bona
fide
disputed by the company. A petition presented ostensibly for a
winding-up order but really to exercise pressure will be dismissed
and under circumstances may be stigmatised as a scandalous abuse of
the process of the Court.’
[11]
[9]
In
Exploitatie-
en Beleggingsmaatschappij Argonauten 11 BV & another v Honig
[12]
the SCA reaffirmed the
Badenhorst
rule as follows:
‘
This
is a convenient stage to raise the issue of the respondent’s
alleged indebtedness to the appellants. Sequestration
proceedings are designed to bring about a
concursus
creditorum
to ensure an equal distribution between creditors, and are
inappropriate to resolve a dispute as to the existence or otherwise
of a debt. Consequently, where there is a genuine and bona fide
dispute as to whether a respondent
in
sequestration proceedings is indebted to the applicant (as in this
case), the court should as a general rule dismiss the application
.
This is the so-called ‘
Badenhorst
rule’. Named after the decision in
Badenhorst
v Northern Construction Enterprises Ltd
,
this principle was reaffirmed by this court in
Kalil
v Decotex (Pty) Ltd and Another
and applies equally in both winding-up and sequestration
proceedings. It is a rule of long standing and good sense and
is
not likely to be departed from in circumstances such as the
present. On this basis alone, the appellants may well face
grave
difficulty in obtaining a sequestration order against the
respondent, as their counsel correctly conceded.’
[13]
(My emphasis.) (Footnotes omitted.)
[10]
The test in a provisional winding-up of the respondents has been
settled for a number of years, i.e. the applicant has to establish
a
prima
facie
case on affidavit.
[14]
The
Insolvency Act treats
a partnership as being a separate estate
for most purposes.
[15]
[11]
The general rule of practice in applications has always been to
request a referral to oral evidence prior to argument on the
merits.
[16]
This rule
has been broadened by the court in
Administrator,
Transvaal & others v Theletsane & others
.
[17]
Rule 6(5)(
g
)
of the Uniform Rules of Court provides for oral evidence to be heard
on specified issues but it was not intended to be used for
deciding
issues that give rise to various factual inquiries.
[18]
In his heads of argument and oral submissions, Mr
Moola
SC
,
counsel for the applicant submitted that the applicant succeeded in
its onus but ‘if the court is unable to determine the
application on the papers then the application should be referred for
hearing of oral evidence or trial’. Reliance
was placed
by counsel on
Kalil
v Decotex
supra at 979. I have always understood that a discretion exists
to refer to oral evidence but that such an exception would
be where
the probabilities are evenly balanced and oral evidence may tip the
scales.
[12]
The applicant argued that the following facts support the contention
that a partnership exists between the second to sixth
respondents.
These are:
(a) the respondents share
a common home;
(b) they share common
offices;
(c) all of them
contribute to the business of Dimo’s which is a partnership
business;
(d) monies received by
Dimo’s and monies paid on behalf of Dimo’s pass through
the bank accounts of the various partners;
and
(e) the arrangement
represents a typical joint family type arrangement where the family
members pool their reserves and energies
for their mutual benefit.
[13]
Applicant alleges that the indebtedness arose out of the sale of
motor vehicles to the first respondent and avers that it concluded
sale contracts with the first respondent and that the fourth
respondent represented the first respondent in these transactions.
Applicant substantiated its case with the fact that a meeting was
held with some of the creditors of the first respondent who were
owed
money. The waters were muddied since the applicant also alleged
that the indebtedness of the first respondent was not
incurred in the
normal course of trading but was part of a fraudulent scheme.
This is what is stated:
‘
I
arrived at this conclusion when I investigated certain “deals”
which the First Respondent was involved in with the
Applicant and HMI
Investments (Pty) Ltd. The
modus
operandi
employed by the first respondent involved
inter
alia
,
the first respondent purchasing vehicles on credit from the applicant
(usually by providing post-dated cheques) and then re-selling
the
vehicles for cash at a lower price than that at which the vehicles
were purchased for. On most occasions the post-dated
cheques
were not honoured. The first respondent thereby gained the cash
received for vehciles purchased without having to
pay therefore.
Of the twenty-six (26) vehicles sold by the applicant to the first
respondent, twelve were on-sold to HMI
Investments (Pty) Ltd at one
million seven hundred and forty five thousand (R1 745 000.00)
rands lower than which the
first respondent purchased the vehicles
for.’
[19]
[14]
According to the applicant he was invited to a meeting at which the
third and fourth respondents were present and he was offered
a
settlement which he rejected. It is contended by the applicant
that the ongoing negotiations between the first respondent
and
various creditors constitute an act of insolvency within the meaning
of s 8 of the Act.
[20]
[15]
It is necessary to analyse the documentation used by the applicant as
proof of the indebtedness. Reliance was placed
on cheques that
were filed as FA4(i) to FA4(viii), these are cheques furnished to the
applicant allegedly on behalf of the first
respondent in respect of
certain purchases. The following appears
ex
facie
these annexures:
FA4(i) is a cheque of
Dimo’s Enterprises
, issued to Cruzn Motors;
FA4(ii) is a cheque of
Dimo’s Enterprises
, issued to Cruzn Motors;
FA4(iii) is a cheque of
Dimo’s Enterprises
, issued to Cruzn Motors;
FA4(iv) is a cheque of
Dimo’s Enterprises
; issued to Cruzn Motors;
FA4(v) is a cheque of
Pambili Investments CC, issued to TM Govender;
FA4(vi) is a cheque of PV
Naidoo, which is a cash cheque;
FA4(vii) is a cheque of
Pambili Investments CC issued to Lonestar Trading;
FA4(viii) is a cheque of
Dimo’s Enterprises
, issued to AA Haffejee.
(My emphasis.)
[16]
Not a single cheque refers to the first respondent, i.e. The Hussen
Family Partnership. In fact cheque FA4(v) was in favour
of Mr
Thamothran Govender from King Williams Town and the drawer was a
close corporation. The applicant however described the aforesaid
cheques as follows in his founding affidavit:
‘
18.5
I digress to mention that on numerous occasions cheques were
furnished to the applicant
on
behalf of the first respondent in respect of certain purchases
but not all the cheques were honoured. The cheques were
returned by the bank marked either “payment stopped’’,
“account closed” or “return to drawer”.
I attach marked ‘FA4(i) to FA4(vii) copies of the unpaid
cheques which total two million, five hundred and fifty four thousand
rands (R2 554 000.00).’
(My emphasis.)
What
is evident from the aforementioned negotiable instruments is that
there were financial transactions between the applicant and/or
Dimo’s
Enterprises and/or Pambili Investments CC and/or PV Naidoo.
These cheques were not all issued to the applicant’s
business
and they do not support the contention that it was issued on behalf
of the first respondent nor do they support the facts
as stated in
para 18.5.
[17]
The respondents disputed their indebtedness to the applicant on
grounds that they claim are bona fide and reasonable.
It was
argued that the applicant’s belated request to refer the
application to oral evidence is nothing else than an attempt
to
involve the court in a process of forensic investigation of the
validity of the claims which would take a very long time and
many
judicial hours to resolve. Further to that, this forum, i.e.
the application, is not the right forum to determine the
indebtedness
if it is found that it is disputed on bona fide grounds. In my
view I am tasked to decide on the affidavits
filed by the respondents
whether the grounds are bona fide and whether they have a reasonable
defence.
[18]
The fourth respondent has deposed to an opposing affidavit wherein he
denies the existence of the entity called the Hussen
Family
Partnership. He also denies that he was in a partnership with
any of the respondents. He admits that there were
business
dealings between him and the applicant but denies being indebted to
the applicant as claimed. The applicant in response
to the
opposition filed a replying affidavit on 6 December 2017. It is
in this reply that he introduced new facts and the
affidavits of
Abdool Carrim Sikander Hassim and Muhammed Kajee. It is also in
reply that the applicant denied that there
are any material disputes
of fact. I consider it necessary to quote from this affidavit
since Mr
Moola
,
submitted that the court should refer the matter to oral evidence.
I alluded to this issue earlier in this judgment.
[19]
The applicant states:
‘
The
Respondents allege that there are disputes of facts on the papers.
Whilst this may at first glance appear to be so, there
are
no serious and/or genuine disputes of fact. Even if there are,
it was not possible for me to have anticipated disputes
arising as I
did not force (sic) nor could I have foreseen that the Respondents
would stoop to such a low level as to brazenly
and repeatedly commit
perjury
.
I point out that during my numerous discussions with the Third
Respondent and the Fourth Respondent, especially during the
meetings
which we had, whilst at some stage my calculations was questioned but
after I had provided an explanation, the Third and
Fourth Respondents
were satisfied with the calculations. The Third Respondent
acknowledged the amount but offered to settle
the indebtedness at
Eight Million Rand (R8 000 000.00).
Furthermore,
the question as to whether Dimo’s Enterprises was a part of the
family business or not, although disputed by
Third Respondent, was
not regarded by me as a serious or genuine dispute
as I perceived it as being merely a “negotiating strategy”
to obtain some form of “discount” from the Applicant.
It must be borne in mind that I had a long association with the
Hussen family when I was a frequent visitor at their home and I
was
well acquainted with how their businesses were structured and that
the businesses were owned by the family. Furthermore, Third
Respondent “controlled” the meetings and attended all
meetings and would not have done so if he was merely an observer
giving moral support to his brother. As mentioned in the
Founding affidavit, the Respondents, through Dimo’s
Enterprises,
owed various motor dealers, an amount of approximately
R64 000 000.00. That credit, in such a significant
amount
was extended to Dimo’s Enterprises, was only possible as
it was commonly known that Dimo’s Enterprises was a part of
the
Hussen family businesses, which family was reputed to be extremely
wealthy. This belief that Fourth Respondent was transacting
on
behalf of the family businesses was reinforced by the involvement of
other members of the family in the activities of the business
and in
particular by the delivery of cheques drawn on bank accounts of
various family members and/or entities controlled by them,
the
transfer of funds from such accounts and the transfer of funds to the
accounts of various family members and/or entities controlled
by them
relating to the purchase and sale of motor vehicles by the Fourth
Respondent. No acceptable or credible explanation
to counter
the inferences arising from the aforesaid facts have been provided by
the Respondents.’
[21]
(My emphasis.)
[20]
The fourth respondent did not only deny the existence of the first
respondent, he denied that there were any business transactions
between the applicant and his family members. He submitted that
if he was truly indebted to the applicant as alleged, it
is
reasonable to expect that the applicant would have instituted either
action proceedings against him or recover the monies owed
through
provisional sentence proceedings.
[22]
The fourth respondent’s answering affidavit in essence boils
down to the fact that the so-called Hussen Family Partnership
is a
figment of the applicant’s imagination and hence that is why
there is not a single document or any proof that suggests
the
existence of such a partnership.
[21]
Since the applicant in oral argument
[23]
placed reliance on the
universorum
bonorum
,
it is necessary for the sake of completeness to examine the relevant
cases that recognised universal partnerships.
[24]
In
Mühlmann
supra
the court considered whether a tacit agreement was reached, recently
the legal requirements for proving a universal partnership
have been
stated in
Butters
.
[25]
The applicant, in my view, had failed to prove the existence of a
tacit agreement
[26]
between
the respondents in that they were partners in a universal
partnership.
[22]
The second to sixth respondents, excluding the fourth, in their
answering affidavit submit that the existence of a partnership
rests
on speculation and conjecture without any proof. No documents
were presented that bear the name of ‘The Hussen
Family
Partnership’. As much as the applicant failed to state
the type of partnership that is allegedly in existence,
the
respondents inferred that reliance was placed on a
universorum
bonorum
although the term was never used in the papers. Measured
against the requisites of such partnership, the said respondents
contend
that the application fails at multiple levels since the
necessary elements have not been established on the papers. Ms
Lennard
has submitted that the applicant presented three
versions which are in fact mutually destructive. I consider it
necessary
to list the three versions:
(a)
Firstly, that both the partnership (first
respondent) and the partners are liable for the alleged indebtedness;
(b)
Secondly, that the fourth respondent represented
the first respondent in concluding the business transactions and
through this representation
the first respondent is liable;
(c)
Thirdly, that the second to sixth respondents are
jointly and severally liable to the applicant for the alleged
indebtedness.
[23]
The second, third, fifth and sixth respondents, quite correctly, in
my view, took issue with the applicant’s attempt
to introduce
new facts in its replying affidavit and by introducing the affidavits
of Messrs Hassim and Kajee. Not only is
it impermissible to
introduce these affidavits, no explanation was proffered as to why
these affidavits could not be introduced
at the time of launching the
application. I do not intend to deviate from the general rule,
absent any explanation on a request
to allow these affidavits
referred to, the applicant’s case will be decided on what he
has stated in the founding affidavit.
[24]
In addition the respondents averred that some of the properties that
the applicant contends fall within the estate of the respondents
are
the ‘Mount Edgecombe’ property and the ‘La Lucia’
property. The first belongs to a registered
company and the
second belongs to the Estate Late MO Hussen. These assets would
require that the company and the executor
of the estate be joined in
the application.
[25]
It was argued that the material disputes of fact ought to have been
foreseen by the applicant and that the application is an
abuse of
process.
[27]
Respondents
asked that the application be dismissed on a punitive scale.
[26]
As stated earlier the applicant at first contended that it has made
out a case for the order sought but then changed tune during
its oral
argument and invited this court to refer the matter for oral
evidence. I assume that this submission was made on
the basis
that the probabilities relating to the indebtedness are balanced on
the papers and that oral evidence might tip the balance
of
probabilities in favour of the applicant. I am not persuaded
that I should accept the invitation. Not only was the
existence
of any partnership not proved on the papers, the
Badenhorst
rule militates against settling of disputes
of this nature by referring the matter to oral evidence. In my
view it is expected
of me to determine whether the respondents in
their papers advanced reasonable grounds disputing the alleged
indebtedness to the
applicant. The applicant has failed in this
application not only in law but also on facts.
[27]
Applicant has failed on these papers to show that any partnership
existed between the respondents, or that the respondents
committed
the acts of insolvency as alleged. In conclusion the applicant
failed to discharge its onus.
[28]
Order
The
application is dismissed with costs, such costs to include senior and
junior counsel where so employed.
__________________
STEYN
J
Application
heard on : 8 February 2017
Counsel
for the applicant : FM Moola SC
Instructed
by : Bilal Malani & Associates
Counsel
for the second, third,
fifth
and sixth respondents : GD Harpur SC/J Naidoo
Instructed
by : Amod’s Attorneys
Counsel
for the fourth respondent : U Lennard
Instructed
by : Zayeed Paruk Inc
Judgment
handed down on : 15 May 2018
[1]
Section 12 of the Act reads:
‘
(
a
) the petitioning
creditor has established against the debtor a claim such as is
mentioned in subsection (1) of section
nine
; 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,
it may sequestrate the estate of the
debtor.’
[2]
Badenhorst v Northern
Construction Enterprises (Pty) Ltd
1956
(2) SA 346
(T) at 347 to 348.
[3]
See page 226 paras 30 to 33, and 232 paras 56 to 58.
[4]
See founding affidavit paras 7 to 12.
[5]
Kalil v Decotex (Pty) Ltd &
another
1988 (1) SA 943
(A).
[6]
At 976E-H.
[7]
See 19 LAWSA paras 189 to 203. Also see E Bonthuys ‘Proving
express and tacit universal partnership agreements in
unmarried
intimate relationships’
(2017)
SALJ
263
at 266:
‘
Pothier’s three
requirements represent the essentialia for a valid partnership
contract. If they are not present,
there is no partnership
agreement, but the parties could have a valid contract of a
different kind – including a totally
unique sharing agreement
which does
not
fit into any standard contractual mode.
The overall existence of the contract as well as its particular
terms are determined
by the usual contractual requirements relating
to legality, consensus, possibility, formalities and so forth.
Animus contrahendi,
or the intention to conclude a legally binding
contract, is one of these general requirements.’ (My
emphasis.)
[8]
Butters v Mncora
2012
(4) SA 1 (SCA).
[9]
At 5E-G.
[10]
1956 (2) SA 346 (T).
[11]
At 348. Also see
Business
Partners Ltd v Word Focus 754 CC
2015
(5) SA 525
(KZN) at …….
[12]
Exploitatie- en
Beleggingsmaatschappij Argonauten 11 BV & another v Honig
2012
(1) SA 247 (SCA).
[13]
At 251I-252B.
[14]
Kalil v Decotex
supra
at 978J-979B.
[15]
Mars The Law of Insolvency in South Africa 9 ed (2008) at 594.
[16]
See
Kalil v Decotex
supra at 981D-E.
[17]
Administrator, Transvaal &
others v Theletsane &
others
[1990] ZASCA 156
;
1991 (2) SA 192
(A) at 200 A-D. Also see discussion in
Herbstein and Van Winsen ‘The Civil Practice of the High
Courts of South Africa
Vol 1 5
th
ed (2009) at 461.
[18]
Ibid
at 461.
[19]
See page 23 para 25.
[20]
Section 8 reads:
‘
A debtor commits an act of
insolvency –
(a)
if he leaves the Republic or being out of
the Republic remains absent therefrom, or departs from his dwelling
or otherwise absents
himself, with intent by so doing to evade or
delay the payment of his debts;
(b)
if a court has given judgment against him
and he fails, upon the demand of the officer whose duty it is to
execute that judgment,
to satisfy it or to indicate to that officer
disposable property sufficient to satisfy it, or if it appears from
the return made
by that officer that he has not found sufficient
disposable property to satisfy the judgment;
(c)
if he makes or attempts to make any
disposition of any of his property which has or would have the
effect of prejudicing his creditors
or of preferring one creditor
above another;
(d)
if he removes or attempts to remove any of
his property with intent to prejudice his creditors or to prefer one
creditor above
another;
(e)
if he makes or offers to make any
arrangement with any of his creditors for releasing him wholly or
partially from his debts;
(f)
if, after having published a notice of
surrender of his estate which has not lapsed or been withdrawn in
terms of section
six
or
seven,
he fails to
comply with the requirements of subsection (3) of section
four
or lodges, in terms of that subsection, a statement which is
incorrect or incomplete in any material respect or fails to apply
for the acceptance of the surrender of his estate on the date
mentioned in the aforesaid notice as the date on which such
application
is to be made;
(g)
if he gives notice in writing to any one of
his creditors that he is unable to pay any of his debts;
(h)
if, being a trader, he gives notice in the
Gazette
in terms of
subsection (1) of section
thirty-four
,
and is thereafter unable to pay all his debts.’
[21]
See pages 269 to 270 para 4.
[22]
See page 189 paras 73 to 75.
[23]
The founding affidavit failed to identify the nature of the
partnership.
[24]
See
Fink v Fink &
another
1945 (WLD) 226;
Mühlmann v Mühlmann
1984 (3) SA 102
(A);
Ponelat v Schrepfer
2012 (1) SA 206
(SCA) and
Butters
v Mncora supra.
[25]
See
supra
para 18.
[26]
In
McDonald v Young
2012 (3) SA 1
(SCA) the court held that in order to establish a
tacit contract the conduct of the parties must be such that it
justifies an
inference that there was consensus between them.
(See para 11.)
[27]
See
Business Partners Ltd v
World Focus 754 CC
2015
(5) SA 525
(KZD) paras 8-9:
‘
[8] It is trite that in
application proceedings the affidavits constitute not only the
pleadings but also the evidence.
Equally trite is that an
applicant must make out his case in his founding affidavit and that
he must stand or fall by the allegations
contained therein. It
follows therefore that the applicant must set out sufficient facts
in his founding affidavit which
will entitle him to the relief
sought.
[9] The general rule is that the
court will not permit an applicant to assert new facts in his
replying affidavit which should
have been set out in his founding
affidavit. However, this rule, like all general rules, is not
without exceptions.
As was stated in
Shephard v Tuckers
Land and Development Corporation (Pty) Ltd (1)
by Nestadt J:
“
This is not however an
absolute rule. It is not a law of the Medes and Persians.
The Court has a discretion to allow
new matter to remain in a
replying affidavit … This indulgence, however, will only be
allowed in special or exceptional
circumstances.”’
(Footnotes omitted.)