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[2014] ZAFSHC 53
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Le Roux v Absa Bank Limited (2942/2013) [2014] ZAFSHC 53 (17 April 2014)
IN
THE HIGH COURT OF SOUTH AFRICA
FREE
STATE DIVISION, BLOEMFONTEIN
Case
No. : 2942/2013
In
the matter between:-
WERNER
LE ROUX
…...........................................................................................
Applicant
and
ABSA
BANK LIMITED
…....................................................................................
Respondent
JUDGMENT
BY:
JORDAAN, J
DELIVERED
ON:
17 APRIL 2014
[1]
The applicant (Werner le Roux) applies for leave to appeal against
the final sequestration of his estate granted by me on the
20
th
March of this year. The applicant was the respondent in the
application for sequestration brought by Absa Bank Limited and
will
be referred to in this matter as the respondent whilst Absa Bank will
be referred to as the applicant.
[2]
It is necessary to briefly set out the history of the matter.
The application was first heard on 12 September 2013 when
it was
postponed by agreement to 7 November 2013. On the latter date
it was again postponed by agreement to 5 December 2013
to enable the
respondent to file an application for condonation for the late filing
of opposing affidavits and the applicant to
file replying affidavits,
if any. On 5 December the matter was finally postponed at the
request of the respondent to the
30
th
January of this year to enable the respondent to make payment of a
sum of R2 million on or before 30 January 2014 and make suitable
arrangements for payment of the balance of the debt due. At
that stage all the necessary affidavits have been filed.
On 30
January 2014 the matter was again postponed to the 20
th
February of this year at the request of the respondent for the same
purposes, namely to make payment of the amount of R2 million
and
arrange for payment of the balance. On the 20
th
February of this year the matter was argued and a provisional
sequestration order granted returnable on the 20
th
March of this year. It does not appear as if any reasons were
given at that stage. Although the matter was not heard
by me on
20 February it is alleged by the applicant’s counsel in his
heads of argument pertaining to this application that,
on that date,
the matter was again at the request of the respondent stood down for
some time to enable the respondent to arrange
the necessary
payments.
[3]
On the return date, namely the 20
th
March of this year, no further heads of argument was filed on behalf
of the respondent and Mr Van Rhyn, who acted on behalf of
the
respondent, asked for the matter to stand down, the reason being that
the respondent is negotiating with the applicant with
the view of
obtaining the necessary funds to make payment of a sufficient amount
as to satisfy the applicant not to proceed with
the final liquidation
application. The matter then stood down until after the motion
court roll when Mr Van Rhyn appeared
on behalf of the respondent
and informed the court that the respondent could only that far
arrange for payment of R200 000.00
but was still in the process
of trying to obtain the funds to pay an amount of in the vicinity of
R1.1 to R1.2 million but that,
as he was sitting in court, he was
waiting for confirmation that the amount has been obtained.
[4]
At that stage I ruled that the matter proceed and specifically asked
Mr Van Rhyn whether he has any further argument as to the
merits of
the matter before I adjudicate upon it. His attitude was that
he cannot take the matter further than what was contained
in his
initial heads of argument when the provisional order was sought.
Specifically, there was no application for a further
postponement of
the application on behalf of the respondent. I then granted a
final sequestration order.
[5]
Without again asking for reasons as to the order made, the respondent
filed the present application for leave to appeal and
sets out the
following grounds as the basis of the application, namely:
(i) that the
respondent’s evidence as to the extent and value of his estate
should not have been rejected;
(ii) that the court
misdirected itself by finding that a final order of sequestration
would be to the advantage of creditors;
(iii) that the court
failed to apply its discretion in favour of finding not to discharge
the provisional order of sequestration
(sic).
(iv) that the court
should have found that the applicant did not discharge the onus
resting upon it in terms of the provisions of
section 12(1) of the
Insolvency Act; and
(v)
that the court failed in the circumstances not to postpone the
hearing of the application for a reasonable period in terms of
the
provisions of section 12(2) in order to grant respondent an
opportunity to satisfy the applicant’s claim or come to an
arrangement with the applicant.
[6]
The parties were requested to file heads of argument pertaining to
the application for leave to appeal so that the matter can
be
adjudicated upon in chambers and both parties were invited to raise
any objection to the procedure if they wish to. None
of the
parties objected and indeed filed heads of argument.
[7]
In the heads of argument on behalf of the respondent, Mr Van Rhyn did
not labour any of the other points raised in the application
for
leave to appeal, but only dealt with the advantage to creditors, in
particular the dispute as to the ownership of the property
known as
the Monte Video Unit No 10.
[8]
It is clear from the above that the fifth point of the application
for leave to appeal, namely the failure to postpone the matter
further, is without any substance since there was no application
brought on behalf of the respondent for such a postponement and
it
was never an issue.
[9]
The only remaining question, which covers all the other grounds of
the application for leave to appeal, is whether the court
erred in
not finding that advantage to creditors has not been proven.
[10]
As to the advantage to creditors, it appears that the main bone of
contention is the ownership of the Monte Video property,
which,
undisputedly, was bought for an amount of R1,2 million a few years
ago and transferred into the name of the respondent,
an attorney.
At the time of the hearing of the application there was no indication
that the value of that property decreased
to less than the purchase
price and it can be accepted that it at least had that value which,
if being the property of the respondent,
would be available for the
advantage of creditors.
[11]
Being the registered owner of that property, the respondent is for
all intends and purposes regarded as the owner thereof and
it forms
part of his estate. His reply thereto is that the property was
transferred into his estate mistakenly and that it
indeed belongs to
another person to whom the property has to be retransferred.
According to the respondent the only reason
that the property has not
yet been retransferred to the real owner was because that person was
still trying to obtain funds to
pay for the said transfer costs.
On behalf of the applicant it was correctly pointed out that the
respondent, being an attorney,
would know that there were various
documents and power of attorney that had to be signed before transfer
could be effected, none
of which were produced in evidence to show
that it was mistakenly done. It was also correctly pointed out
that the property
has been transferred to the respondent almost two
years before the present application and nothing was done in the
meantime to
effect retransfer to the alleged real owner.
[12]
It is clear that the said property remains the property of the
respondent, being registered in his name. The probabilities
of
that having happened mistakenly are extremely remote in the
circumstances, especially where the respondent is a practising
attorney himself. It furthermore appears that the respondent,
notwithstanding his dire financial position, was in the position
to
obtain an interest in a company that envisaged an enterprise to start
a ferry business between Cape Town and Robben Island.
How he
obtained that and what the amount was that he had to invest to obtain
that interest, is unclear and not accounted for in
the papers.
In the least, this is an aspect which tends to show that the
respondent was in a sufficient financial position
to obtain such
interest and is something that can be investigated by the trustees.
The ownership of the Monte Video property
is also something that, at
the moment, is undisputedly registered in the name of the respondent
and, if mistakenly so, can be investigated
by the trustees.
[13]
Throughout the history of this application the respondent’s
main thrust was to obtain finances to pay the outstanding
debt so as
to avoid sequestration. The claim, being in an amount of the
vicinity of R7 million, represents a vast amount
of money and the
mere fact that the respondent was of the opinion that he would able
to obtain the necessary funds to pay that
claim, points to the
probability that he must be able to raise funds in some or other way
and is not in such a dire financial position
as he suggested.
[14]
In view of all the circumstances I am not convinced that there is any
reasonable prospect that another court would come to
a different
conclusion and the application for leave to appeal is therefore
refused with costs.
_______________
A.F.
JORDAAN, J
On
behalf of applicant:
Adv A.J.R. van
Rhyn SC
Instructed
by:
Goodrick & Franklin Inc
BLOEMFONTEIN
On
behalf of respondent:
Adv P.J. Heymans
Instructed
by:
E G Cooper Majiedt Inc
BLOEMFONTEIN