About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: North Gauteng High Court, Pretoria
SAFLII
>>
Databases
>>
South Africa: North Gauteng High Court, Pretoria
>>
2015
>>
[2015] ZAGPPHC 468
|
|
Anderson N.O and Others v ABSA Bank Ltd (72268/2013) [2015] ZAGPPHC 468 (1 June 2015)
IN THE HIGH COURT OF
SOUTH AFRICA
GAUTENG DIVISION,
PRETORIA
CASE NO: 72268/2013
DATE: 01 JUNE 2015
In the matter between:-
N.M. ANDERSON
N.O
....................................................................................................
First
Applicant
J.B. ANDERSON
N.O
..................................................................................................
Second
Applicant
R. ANDERSON
N.O
.......................................................................................................
Third
Applicant
And
ABSA BANK
LTD
..................................................................................................................
Respondent
JUDGMENT
Rabie J:
1. This is an application in which the
applicants, in their capacities as trustees of the Anderson Family
Trust ("the trust"),
seek leave to appeal against the final
seque¬stration order that the respondent obtained against the
trust on 26 January 2015.
Coupled with this application is an
application for condonation for the late service of the Application
for Leave to Appeal.
2. Both the applications were opposed
and both Senior Counsel who represented the respective parties and
who had filed extensive
heads of argument in support of their
submissions, argued a full day to convince me of their respective
viewpoints. I must add,
however, that the arguments were not
repetitive but dealt with the numerous issues and disputes which are
relevant for the adjudication
of this matter.
3. The background of the matter is
briefly the following. The respondent initially applied for the
provisional sequestration of
the trust based on money allegedly owed
in respect of three loan agreements and one suretyship agreement. The
application was opposed
and argued before Makgoba J. Makgoba J
rejected the arguments on behalf of the applicants and granted the
provisional order of
sequestration.
4. On the return date of the
provisional order, i.e. 26 January 2015, the matter was called before
me presiding in the opposed motion
court. The matter was not on the
roll for that day and advocate Terblanche SC, appearing on behalf of
the respondent, mentioned
the matter from the bar shortly before the
tea
adjournment. Before and after the tea
adjournment I was briefly informed of the nature of the application
and also of the fact that
the applicants were not at court to oppose
the return date and that they would not appear. The transcription of
the record of proceedings
relating to both the provisional order and
the final order form part of the record of the present applications.
5. The papers were voluminous and were
not studied by myself before granting the final order. I relied on
the submissions by counsel
and on the fact that there was no
appearance on behalf of the applicants. I should add as an aside,
although it might not be altogether
relevant in the present scheme of
things, that it now appears from an answering affidavit of the
respondent’s attorney of
record, that the third applicant had
telephonically informed him that he was on his way to court. The
attorney then apparently
informed him that I had stood the matter
down and that the respondent would proceed with the application if
the third applicant
failed to appear at court. I assume that this
telephonic conversation could only have occurred during the tea
adjournment since
that was the only time when there was a break in
the proceedings relating to this particular application. Having
regard to these
facts, I must add that if I had been made aware of
the third applicant being on his way to court, I would not have
issued a final
order in the manner and at the time which I did. I
would have insisted on further enquiries being made and for the true
facts to
be placed before me before making a final order by default.
6. To return to the two applications
before me: The application for condonation resulted from the fact
that the application for
leave to appeal was served 15 days late. The
respondent oppose the application on the following grounds: firstly
that the order
was not appealable as it was a default judgement
granted under circumstances where the trust elected not to oppose the
application
on the return date; secondly, that the trust was in
wilful default on the return date; and, thirdly, that the trust
acquiesced
in the final sequestration order and that the appeal has
become perempted.
7. On behalf of the applicants it was
submitted that they had until 16 February 2015 to serve and file the
application for leave
to appeal. Furthermore, that after the final
sequestration was granted, the third applicant immediately took
action, made enquiries
and spoke to various legal professionals to
ascertain what the consequence of the final sequestration order
entailed and which
remedy was available. It was further stated that
he consulted with an attorney who eventually handed him back the
documents of
the sequestration application for the reason that he,
the attorney, had a relationship with the auctioneers who were
involved in
the possible sale of the assets of the trust. During the
week of 23 February 2015 the applicants consulted with the present
attorney
who firstly required a deposit to be made to him. Such funds
could only be secured by 2 March 2015 and the attorney then proceeded
with further steps which culminated in the application for leave to
appeal.
8. As far as the sale of property is
concerned it was submitted that this was attempted in order to save
the trust from sequestration
because if the farms were sold, all the
alleged debts of the trust could have been paid and the final order
for sequestration rescinded.
9. In my view, on the papers before me,
the applicants have at all times intended to attack the final order
for sequestration and
that the delay in filing the application for
leave to appeal had been fully explained. Furthermore that the delay
is of quite a
short duration and there was no prejudice to the
respondent. The issue as to whether the order is appealable is one
which is also
relevant for purposes of the application for leave to
appeal. That issue is hotly disputed between the parties and should
not in
my view prevent the condonation from being granted.
10. Consequently I am of the view that
a proper case for condonation had been made out and that such an
order should be granted.
11. That brings me to the application
for leave to appeal. A vast number of issues were in dispute between
the parties. In light
of the decision to which I have come in respect
of that application it is not necessary for me to refer to all of
these disputes
and neither is it necessary for me to refer to the
submissions made in that regard on behalf of the respective parties.
It is also
not necessary for me to relate my views in respect of the
issues and it would in fact be inappropriate to do so.
12. The first issue which was argued by
the parties before me was whether the provisions of section 17 (1) of
the Superior Courts
Act, Act 10 of 2013, have changed the test to be
applied in applications for leave to appeal and, if so, what such
test entails
exactly.
13. As stated above, an issue which was
hotly debated between the parties relates to the question whether the
final order, which
was granted in the absence of the
applicants, is appealable or not.
Although section 149 (2) of the Insolvency Act provides for the
rescission of an order, the question
was argued whether such a route
was available, or, if so, whether it was appropriate, in the
circumstances of this case. The numerous
disputes of fact may play a
role in this regard and may be conclusive. But apart from this, the
question was also debated as to
the effect of the provisions of
section 150 (1) of the Insolvency Act which allows for an appeal.
None of the counsel could refer
me to clear authority in respect of
these issues and in their references to general principles which they
submitted I should apply,
they relied on divergent and possibly
obiter views from eminent Judges. In my view this is an issue fit for
a court of appeal.
14. At the heart of this application
lies the question as to the effect of decisions taken by trustees
without a trustee of the
kind specified in the trust deed. The court
which heard the main argument before granting a provisional order did
not really address
this issue in its judgement and neither was it
considered by myself before granting the final order. I am of the
view that this
issue and the effects it may have on the final
adjudication of this matter, is such that it is fit for adjudication
by a court
of appeal.
15. Hand in hand with the aforesaid
issue goes the issue of whether an applicant applying for the
sequestration of a respondent,
and who was required to set out the
cause of its claim against the respondent, can rely on a different
cause if the first mentioned
cause turns out to be without
foundation. Counsel could not refer me to authority on this point and
neither could I find same in
the time available. In
my view this issue, which is of great
importance and which mainly resulted in the provisional order, also
requires the attention
of a court of appeal.
16. It is not necessary that I refer to
the other issues in dispute between the parties. In my view the
appeal has a reasonable
prospect of success and leave should
accordingly be granted.
17. As far as costs are concerned I am
of the view that such costs should be reserved. Although I propose to
grant the application
for condonation, the costs of such condonation
should also be reserved. Since the issue of costs is to be
adjudicated by the court
of appeal the question whether such costs
should include the costs of two counsel, shall also be a matter for
such court of appeal.
18. In the result the following order
is made:
1. Condonation is granted to the
applicants for the late filing of the Application for Leave to
Appeal.
2. The applicants are granted leave to
appeal to the Supreme Court of Appeal.
3. The costs of the condonation
application as well as the application for leave to appeal are
reserved for decision by the Supreme
Court of Appeal.
C.P. RABIE
JUDGE OF THE HIGH COURT