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[2016] ZAGPPHC 866
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Absa bank Limited v Lochneberg (A657/2014) [2016] ZAGPPHC 866 (23 September 2016)
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION. PRETORIA
Case
number: A657/2014
DATE:
23 SEPTEMBER 2016
In
the matter between:
ABSA
BANK
LIMITED
...........................................................................................................
Appellant
And
LOCHENBERG: LEON
RUDOLPH
.........................................................................
First
Respondent
LOCHENBERG:
PATRICIA
..................................................................................
Second
Respondent
Heard: 26 August 2015 Delivered:
JUDGMENT
A.A.LOUW
J
Introduction
[1]
This started as an application for
voluntary surrender set down for 24 October 2013.
[2]
Absa Bank Ltd intervened as creditor. As
the papers show it is by far the largest and thus the main creditor
of the Lochenbergs.
The application was on 16 May 2014 decided in
favour of the Lochenbergs, the present respondents, by Keightley AJ.
[3]
At the initial hearing of the
application the main assets were immovable properties situated in the
suburb Clarina in Pretoria.
According to the valuator these
properties were worth R2 850 000. There were no movables worthy of
mention - only R7 500 (without
a description thereof) is mentioned.
[4]
The appellant opposed the application on
basically two grounds: Firstly that the valuations are not to be
trusted and are too high;
secondly that no benefit to creditors would
result.
[5]
Subsequent to the appeal hearing the
trustee filed a supplementary affidavit and sought leave that it be
admitted. This affidavit
reveals that two weeks after we heard the
appeal all the immovable properties were sold at public auction on 12
August 2015. The
appellant oppose the admission of this further
affidavit but, in any event made an answering affidavit to the
trustees’ affidavit
conditional thereupon that the trustees’
supplementary affidavit be allowed.
[6]
Be that as it may, in May 2016 I wrote
to both attorneys as follows: “Reference is made to this appeal
heard on 26 August
2015.
Supplementary
heads of argument re admissibility of further evidence on appeal
dated 1 October 2015 was received from appellant’s
counsel.
These deal with the sales of the properties - sold on auction on 12
August 2015.
In the supplementary heads the following is stated in
para 6.3:
“The consequences of the
provisions of the section 150(3) of the Insolvency Act is further not
relevant if regard is had to
the wording of the said section: 150(3)
When an appeal has been noted (whether under this section or under
any other law), against
a final order of sequestration, the
provisions of this Act shall nevertheless apply as if no appeal had
been noted: Provided that
no property belonging to the sequestrated
estate shall be realized without the written consent of the insolvent
concerned.”
It
speaks for itself that the insolvents would have given their
permission.
In the light
thereof the question arises whether the appeal has not become
academic. Have the properties been transferred? I was
not informed of
any interdict to prevent transfer or any agreement in that regard.
If transfer
has taken place to a bona fide third party there seems to be
senseless to give judgment.
I
am on sick leave until 30 May 2016 and
will unfortunately only thereafter be able to attend hereto.
Kindly
inform my registrar Joanita what the position is. In any event I
apologise for the delay. ”
[7]
The answer from Hack, Stupel & Ross,
who acted as the attorney for the appellant throughout reacted to my
letter as follows:
“The
abovementioned matter as well as your email received on 11
May 2016 has reference.
We have
taken note of the content of your letter and wish to advise you with
respect that we share your view.
The
properties have both been transferred and the proceeds paid to the
trustee.
Strangely
enough we submitted a similar proposal to our opponents before we
received your letter who undertook to discuss same with
their clients
and revert.
We
await your further response upon your return. ”
[8]
As all the properties have now been
transferred there is no sense in giving judgment at this late stage.
At this point in time it
is impossible to unscramble the scrambled
egg. There are bona fide purchasers of the immovable properties. They
have in the mean-time
become owners as well.
[9]
What strikes me as strange is that the
appellant at no time sought an interdict or undertaking that the
properties not be sold pending
the hearing of the appeal.
[10]
Thus on the merits there is no sense in
giving a judgment. There remains the question of costs. I am of the
view that Absa’s
initial opposition and appeal were justified
and that it is entitled to a cost order, for what it may be worth.
1.
The appeal is removed from the roll
2.
The
appellant’s costs are payable from the proceeds, if any, of the
insolvent estate.
A.A.
LOUW
Judge
of the High Court
I
agree
D.S.S.
MOSHIDI
Judge
of the High Court
I
agree
V.V.
TLHAPI Judge of the High Court
For
the Appellant ADV. M RILEY
Instructed
by HACK, STUPEL & ROSS
For
the First Respondent ADV. B LEE
Instructed
by MICHAEL SENEKAL ATTORNEY