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[2013] ZAGPPHC 301
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Pelser v Loubser (5034/13) [2013] ZAGPPHC 301 (17 October 2013)
IN
THE HIGH COURT OF SOUTH AFRICA (NORTH GAUTENG HIGH COURT, PRETORIA)
CASE
NO. 5034/13
DATE:17/10/2013
In
the matter between:
PELSER C 3 + 4 APPLICANT
and
LOUBSER K B + 3 RESPONDENT
JUDGMENT
HASSIM
A AJ
1.
This is an application for the payment of money to the Applicants
that the Applicant argues was misappropriated by the First
Respondent
while he was executor of the estate of the father of the First
Applicant. The First Respondent has not opposed the application.
The
Second Respondent was married to the first respondent at the time
that the cause of action arose. They divorced on 14 June
2012. The
Applicant however seeks to recover the money from the joint estate,
the division of the estate, according to the Applicant,
not having
been finalized. The Second Respondent has opposed the application.
For the reasons I provide in this judgment, it is
not necessary for
me to make a finding in relation to the Second Respondent.
1.
Circumstances have changed since the filing of the application. An
intervening party, Ms Violet May Visagie, was granted leave
to
intervene. It appears that Ms Visagie has also suffered under the
hand of the First Respondent during his tenure as executor
of the
estate of Ms Visagie’s late husband. Ms Visagie has also,
separately, brought sequestration proceedings against the
first
respondent. There was no appearance for Ms Visagie at the hearing.
2.
It is common cause that a provisional order for the sequestration of
the first respondent has been issued. No information was
place before
the court as to the appointment of a trustee or the stage at which
the sequestration proceedings are. However, counsel
for the
Applicants sought to persuade the court that the application should
not be stayed despite the provisional sequestration.
He submitted
that this matter has a long history and that the applicants should
not be prejudiced merely because another creditor
has brought
sequestration proceedings against the first respondent. I was urged
to grant the order sought in the notice of motion.
In order to
assuage my concern regarding the provisional sequestration, counsel
submitted that I may make a further order to the
effect that the
trustee of the insolvent estate may apply for a rescission of this
court’s order if there are grounds to
do so. This i cannot do.
I am constrained by section 20(1 )(b) of the
Insolvency Act 24 of
1936
.
3.
Section 20
(1)(b) of the
Insolvency Act provides
that the effect of
sequestration of the estate of an insolvent shall be: “to stay,
until the appointment of a trustee, any
civil proceedings instituted
by or against the insolvent...” Reference to a trustee in this
context means a trustee as finally
appointed [Meskin, Insolvency Law,
at page 6-6(3)]. The section contains a proviso, which is not
applicable in this case.
5.
The purpose of sequestration proceedings is to bring about a
concursus creditorum so as to achieve the realization of the debtor’s
assets for the benefit of all creditors. [Meskin, Insolvency Law, at
page 2-42]. Ms Visagie probably instituted the insolvency
proceedings
in order to obtain payment of the debt owed to her, or at least as
much of it as she can get. [See Estate Logie v Priest
1926 AD 312
at
319], However, once an order for sequestration is made, all
creditors, including the sequestrating creditor, will have to prove
their claim in accordance with the
Insolvency Act. Investec
Bank Ltd
v Mutemeri
2010 (1) SA 265
(GSJ) at 2751-J per Trengove AJ.
Similarly, the applicants will have to prove their claim against the
first respondent in the normal
course under the
Insolvency Act, along
with other creditors. I therefore decline to grant the order they
seek in this application. This application must be stayed in
accordance with
section 20(1)(b)
of the
Insolvency Act.
6.
In
respect of costs, the applicant seeks costs against the second
respondent. The second respondent was entitled to oppose and to make
legal submissions in order to secure her rights in the event that I
found in the applicants’ favour. While she was not ultimately
successful because it is incumbent upon me to postpone these
proceedings, neither are the applicants successful. In these
circumstances,
I am of the view that it would not be fair for the
second respondent to be saddled with the costs of the application at
this stage.
7.
I therefore make the following order:
7.1.The
application is postponed sine die.
7.2.
Costs to be costs in the cause.
JUDGE
HASSIM A AJ