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[2009] ZAGPPHC 8
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Van Den Heever NO v Klara NO and Others (317/2007) [2009] ZAGPPHC 8 (18 March 2009)
IN THE HIGH COURT OF SOUTH
AFRICA
(TRANSVAAL PROVINCIAL DIVISION)
NOT REPORTABLE
Date: 18 March
2009
Case Number:
317/2007
In the matter between:
VAN DEN HEEVER,
THEODOR WILHELM N.O.
Applicant
a
nd
UCKO-STEIN,
HAZEL KLARA N.O.
First
Respondent
GREENBERG,
FELICIA DORA
Second
Respondent
SEAGATE
TECHNOLOGIES CC
Third
Respondent
SHERIFF OF THE
HIGH COURT, GERMISTON NORTH
Fourth
Respondent
THE REGISTRAR OF
CLOSE CORPORATIONS
Fifth
Respondent
and
GREENBERG,
LIONEL MERVIN
Intervening
Respondent
JUDGMENT
SOUTHWOOD J
[1]
As
trustee in the insolvent estate of the intervening respondent, Lionel
Mervin Greenberg (Lionel Greenberg), the applicant seeks
the
following relief:
(1) An order
declaring tha
t
the membership held by Lionel Greenberg in the third respondent
(Seagate) forms part of the insolvent estate of Lionel Greenberg;
(2) An order
declaring that the membership of Lionel Greenberg in Seagate is to
be dealt with in the winding-up of the affairs
of the insolvent
estate of Lionel Greenberg;
(3) An order that
the fifth respondent amend his records to reflect that Lionel
Greenberg is the sole member of Seagate;
(4) An order for
costs, jointly and severally, against those respondents who oppose
the application.
At the hearing the applicant did not
ask the court to grant the relief set out in prayer 4 of the notice
of motion.
[2] When the
applicant launched the application he cited as first respondent,
Hazel Klara Ucko-Stein
(Hazel Ucko-Stein), the executrix in the estate of Esther Greenberg;
as second respondent, Felicia Dora Greenberg (Felicia Greenberg),
Lionel Greenberg’s former wife; as third respondent, Seagate;
as fourth respondent, the Sheriff of the High Court, Germiston
North
(the sheriff) and as fifth respondent, the Registrar of Companies and
Close Corporations (the registrar). Initially, only
the third
respondent opposed the application and filed a comprehensive
answering affidavit deposed to by Delia Sybil Dall (Delia
Dall), one
of Lionel Greenberg’s sisters. Hazel Ucko-Stein is also one of
Lionel Greenberg’s sisters and she was then
the executrix in
the deceased estate of their mother, Esther Greenberg. After the
application was launched Hazel Ucko-Stein emigrated
to Australia and
ceased to be the executrix in Esther Greenberg’s deceased
estate. On 20 October 2008 she was substituted
as executrix by her
sister, Delia Dall. At the hearing the applicant applied for Delia
Sybil Dall to be substituted as the executrix
in the estate of Esther
Greenberg (i.e. the first respondent) and such an order was granted.
[3] The importance
of Lionel Greenberg’s members interest in Seagate appears from
the following allegations in the founding
affidavit which are not
disputed –
(1) Seagate owns
(or owned) an immovable property situated at 77 Linksfield Road,
Glendower, Edenvale (the property). According
to the applicant
this property is worth ‘a few million rands’;
(2) On the
property there is an upmarket lodge with 10 rooms called the ‘Egoli
Lodge’ and a ‘reasonably sized’
house;
(3) A computer
business is conducted from a house on the property.
Although the value
of the property has not been determined with any precision it is safe
to accept that it is worth a substantial
sum, probably running into
the millions.
According to Felicia Greenberg’s affidavit, while the
litigation referred to in this judgment was pending, Delia Dall and
Hazel Ucko-Stein, purporting to be the members of Seagate, sold and
transferred the property to Mr Gordon Voogt. This was done
in
conflict with the caveat registered against the property by Felicia
Greenberg.
[4] At the hearing,
the third respondent’s counsel, Mr Snoyman, informed the court
that he also held a brief to represent
Delia Dall and/or the first
respondent. After unsuccessfully opposing the applicant’s
application to substitute the name
of Delia Dall for that of Hazel
Ucko-Stein as the first respondent Mr Snoyman applied for the
postponement of the hearing to
enable the new executrix to file an
answering affidavit. This application was refused for reasons given
at the hearing. Delia
Dall was appointed executrix in the deceased
estate of Esther Greenberg on 20 October 2008. Since then and
despite her knowledge
of this litigation, she has not sought to come
on record or file an answering affidavit. She did not seek a
postponement prior
to the hearing and she did not file an affidavit
to explain why she required a postponement to file an answering
affidavit or
indicate what she would say in addition to the
answering affidavit she deposed to on behalf of the third
respondent. Lionel
Greenberg’s counsel, Mr Kriel, also
requested a postponement. He sought a postponement he said, because
he needed to consult
with his client, prepare an application for
condonation for Lionel Greenberg’s failure to file an
answering affidavit until
25 February 2009 and enlist the assistance
of senior counsel to advise on how to deal with the complex issues
which have arisen
in this application. In the absence of an
explanation for failing to deliver the affidavit timeously and for
failing to instruct
a counsel who could be prepared on the issues in
time for the hearing the court refused to accept the affidavit which
Lionel
Greenberg sought to file and refused the application for
postponement. Reasons were given at the hearing. With the leave of
the court Mr Kriel then withdrew and his client conducted his own
case. Mr Kriel’s attorney remained in court but did
not
participate in the proceedings.
[5
] This
is an application for final relief. It is opposed by only one
respondent which has filed an answering affidavit. If there
are
disputes of fact the final relief may be granted only in the
circumstances outlined in
Plascon-Evans
Paints Ltd v Van Riebeeck Paints (Pty) Ltd
[1984] ZASCA 51
;
1984
(3) SA 623
(A)
at
634E-635C. See also
National
Director of Public Prosecutions v Zuma
[2009] ZASCA 1
;
2009
(2) SA 277
(SCA)
para
26.
[6
] The
following facts relevant to the relief sought are not in dispute:
(1) At all material times up to 10
December 2001 Lionel Greenberg was the holder of 100 % of the members
interest in Seagate (members
interest);
(2
) On
7 February 2001 the marriage between Felicia Greenberg and Lionel
Greenberg was dissolved by the Johannesburg High Court which
awarded
custody of their two minor children to Felicia Greenberg and ordered
Lionel Greenberg to pay maintenance to Felicia Greenberg
for the two
minor children at the rate of R4 000 per month per child;
(3
) Lionel
Greenberg failed to pay maintenance to Felicia Greenberg as well as
other amounts due to her in connection with the divorce
proceedings
and at various times Felicia Greenberg issued writs of execution for
the amounts owing to her. Pursuant to these writs,
the sheriff
attached Lionel Greenberg’s members interest on a number of
occasions;
(4) Pursuant
to one of these attachments the sheriff arranged for a sale in
execution to be held on 10 January 2001. Before the sale could
take
place Lionel Greenberg paid some of the amounts owing to Felicia
Greenberg who instructed the sheriff not to proceed with
the sale;
(5
) After
10 January 2001 Felicia Greenberg issued further writs and the
sheriff again attached Lionel Greenberg’s members interest.
On
10 April 2001, while the members interest was still subject to
attachment, Lionel Greenberg purported to transfer his members
interest to Esther Greenberg. On the same day the registrar
registered this transfer;
(6
) When
Felicia Greenberg discovered the purported transfer of the members
interest she launched an urgent application in the Pretoria
High
Court for an order that the transfer be declared invalid and/or set
aside. On 21 August 2001 Van der Merwe J set aside the
purported
transfer of the members interest to Esther Greenberg and issued a
declaratory order that Lionel Greenberg is the sole
member of
Seagate. The court marked its disapproval of Lionel Greenberg’s
and Esther Greenberg’s conduct by ordering
them, jointly and
severally, to pay the costs of the application on the scale as
between attorney and own client;
(
7) While
the application to set aside the transfer of the members interest to
Esther Greenberg was pending, Esther Greenberg successfully
applied
for the conversion of Seagate from a close corporation to a private
company in terms of section 296 of the Companies Act,
61 of 1973.
This caused Felicia Greenberg to launch another application in the
Pretoria High Court for an order setting aside
the conversion of
Seagate from a close corporation to a private company and other
relief. On 18 October 2001 Van der Westhuizen
J granted an order
setting aside and declaring null and void the conversion of Seagate
into a private company; declaring that
Lionel Greenberg is the sole
member of Seagate; interdicting Lionel Greenberg and Esther
Greenberg from dealing in any manner
whatsoever with the assets and
membership or shareholding of Seagate; ordering the registrars of
Close Corporations and Companies
to amend their records to cancel the
registration of Seagate as a private company and to reinstate the
registration of Seagate
as a close corporation and marking his
disapproval of Esther Greenberg’s and Lionel Greenberg’s
conduct by ordering
them, jointly and severally, to pay the costs of
the application on the scale as between attorney and own client;
(8
) Pursuant
to the attachment of Lionel Greenberg’s members interest the
sheriff arranged for a sale in execution of the members
interest to
be held on 7 November 2001. On 6 November 2001 Lionel Greenberg
brought an urgent application in the Johannesburg
High Court to set
aside the sale in execution to be held on 7 November 2001. Blieden J
dismissed the application;
(9) On 7 November
2001, at the sale in execution,
the
sheriff sold Lionel Greenberg’s members interest in Seagate to
Esther Greenberg for R510 000. Although Esther Greenberg
paid the
purchase price on 7 November 2001 the sheriff did not immediately
take steps to transfer the members interest to Esther
Greenberg in
terms of the relevant provisions of the Close Corporations Act, 69 of
1984;
(10
) Notwithstanding
the interdict granted by Van der Westhuizen J and the sale of the
members interest at the sale in execution two
days previously, on 9
November 2001 Lionel Greenberg purported to transfer the members
interest to Esther Greenberg who simultaneously
purported to transfer
the members interest in equal shares to Lionel Greenberg’s
sisters, Delia Dall and Hazel Ucko-Stein.
On the same day Lionel
Greenberg, Esther Greenberg and her daughters signed all the relevant
documents to give effect to the transfers.
On 15 November 2001 Hazel
Ucko-Stein and Delia Dall signed and lodged with the registrar an
Amended Founding Statement in terms
of the
Close Corporations Act
reflecting
that they were each the holder of 50 % of the members
interest in Seagate and the registrar registered them as the holders
of the
members interest in equal shares;
(11
) On
10 December 2001 Lionel Greenberg was provisionally sequestrated and
on 22 January 2002 his estate was finally sequestrated.
By then the
sheriff had still not attempted to transfer the members interest to
Esther Greenberg pursuant to the sale in execution
on 7 November
2001;
(12
) On
an unknown date the registrar amended his records to delete the
transfer of the members interest from Lionel Greenberg to Esther
Greenberg and from Esther Greenberg to Delia Dall and Hazel
Ucko-Stein;
(13
) On
13 May 2002 the sheriff signed forms for the transfer of the members
interest in Seagate to Esther Greenberg pursuant to the
sale in
execution. On the same day the registrar registered the transfer;
(14
) On
16 May 2002 Felicia Greenberg attached the members interest now
registered in the name of Esther Greenberg;
(15
) Shortly
afterwards Delia Dall and Hazel Ucko-Stein instituted proceedings in
the Pretoria High Court citing as respondents, the
registrar, the
sheriff, Esther Greenberg and Felicia Greenberg and seeking
inter
alia
a
declarator that they were the lawful owners of the members interest
in Seagate. Felicia Greenberg counterclaimed for an order
declaring
that the attachment of the members interest on 16 May 2002 was valid
and an order declaring that Esther Greenberg was
the sole member of
Seagate. On 24 October 2002 Patel J made the following order:
(i) That the
applicants’ application was dismissed;
(ii) That the first and second
applicants, jointly and severally, pay the costs of the application
on the scale as between attorney
and client;
(iii) That Esther Greenberg was
declared to be the sole member of Seagate;
(iv) That Felicia Greenberg’s
attachment of Esther Greenberg’s members interest in Seagate on
16 May 2002 was valid;
(v) That the sheriff was permitted to
proceed with the sale in execution of Esther Greenberg’s
members interest in Seagate
at the instance of Felicia Greenberg;
(vi) That the first and second
applicants, jointly and severally, pay the costs of Felicia
Greenberg’s counter-application
on the scale as between
attorney and client;
(16
) On
7 August 2003 Patel J gave full reasons for the orders made on 24
October 2002. He identified the fundamental question in
the matter
to be whether Esther Greenberg validly transferred the members
interest in Seagate to Delia Dall and Hazel Ucko-Stein
on 9 or 15
November 2001. He recorded the registrar’s view that he, the
registrar, regarded the documents registered on
15 November 2001 in
terms of which the members interest was transferred from Esther
Greenberg to Hazel Ucko-Stein and Delia Dall,
as
pro
non scripto
and
void
ab
initio
.
After dealing with the chronology the learned judge considered the
effect of the attachment on Lionel Greenberg’s membership
interest in Seagate. With reference to
Morrison
NO v Rand NO and Another
1967
(2) SA 208
(D)
at
210E-F;
Syfrets
Bank Ltd and Others v Sheriff of the Supreme Court
1997
(1) SA 764
(D)
at
772D-H;
Liquidators
Union and Rhodesian Wholesale Ltd v Brown and Company
1922
AD 549
at
558-9;
Sedibe
and Another v United Building Society and Another
1993
(3) SA 671
(T)
at
676C-D, he concluded that, after the attachment of the members
interest by the sheriff, Lionel Greenberg did not validly transfer
his members interest in Seagate to Esther Greenberg on 9 November
2001 and Esther Greenberg did not validly transfer the members
interest in Seagate to Hazel Ucko-Stein and Delia Dall on 15 November
2001 and that only the sheriff could transfer the members
interest to
Esther Greenberg which he did when the transfer was registered on 13
May 2002. The learned judge did not consider
the effect of the
sequestration of Lionel Greenberg’s estate on the members
interest;
(17
) On
10 December 2003 Delia Dall and Hazel Ucko-Stein unsuccessfully
applied for leave to appeal against the judgment and order
of Patel
J. The learned judge regarded the application for leave to appeal as
ill-conceived, misguided and irresponsible and as
an abuse of the
court process. He dismissed the application with costs on the scale
as between attorney and own client;
(18
) Hazel
Ucko-Stein and Delia Dall then successfully sought leave to appeal
from the Supreme Court of Appeal which granted leave
to appeal to the
full court of this Division on 25 May 2004;
(19
) On
5 May 2006 the full court (Du Plessis J, Ranchod and Mabesele AJJ)
heard the appeal and on 21 June 2006 handed down judgment
dismissing
the appeal against the dismissal of the application, upholding, to a
limited extent, the appeal against the granting
of Felicia
Greenberg’s counter-application and amending the order to
state:
‘
(a) It is
declared that the fourth respondent (i.e. Esther Greenberg) at all
relevant times had a right to the sole membership
interest in the
third respondent (i.e. Seagate).
(b) It is declared
that the second respondent (i.e. the sheriff) on 21 February 2002
validly attached the fourth respondent’s
right to the
membership interest in the third respondent.’
The full court did not consider the
effect of Lionel Greenberg’s sequestration on the ownership of
the members interest;
(20
) In
view of the finding and order of the full court that Esther Greenberg
only had a contractual right to claim delivery of the
members
interest in Seagate and the fact that Lionel Greenberg was
sequestrated before the members interest could be delivered
to her,
the applicant realised that the members interest in Seagate fell into
Lionel Greenberg’s estate and that he was obliged
to recover
the asset in order to wind up the estate. He states that in his
capacity as trustee of the insolvent estate he decided
not to
transfer the members interest to Esther Greenberg’s deceased
estate. On 8 January 2007 the applicant launched this
application.
The applicant has not repaid the R510 000 which Esther Greenberg paid
for the members interest to her deceased estate.
[6] On the face of it the situation is
governed by section 20 of the Insolvency Act, the relevant provisions
of which read as follows:
‘(1) The
effect of the sequestration of the estate of an insolvent shall be
–
(a) to divest the insolvent of his
estate and to vest it in the Master until a trustee has been
appointed, and, upon the appointment
of a trustee, to vest the estate
in him;
(b) …
(2) For the
purposes of subsection (1) the estate of an insolvent shall
include –
(a) all property
of the insolvent at the date of the sequestration, including
property or the proceeds thereof which are in the
hands of a sheriff
or a messenger under writ of attachment;’
In
Syfrets
Bank Ltd and Others v Sheriff of the Supreme Court
1997
(1) SA 764
(D)
the
court said at 777D-E:
‘Where
insolvency ensues after the judicial sale of immovable property, but
before transfer thereof to the purchaser, the
effect of insolvency is
to immediately vest the
dominium
in
the property in the Master and when appointed in the trustee
(s
20(1)(a)
and (2)(a) of the
Insolvency Act 24 of 1936
). The
pignus
judiciale
over
the property terminates and with it the custody and care of the
property passes from the Sheriff to the trustee
(s 20(1)(b)
and (c));
Liquidators
Union and Rhodesia Wholesale Ltd (supra)
at
561); see also
Simpson
v Klein NO and Others (supra)
412D-G)’.
I respectfully
agree with that view which is consistent with the wording of the
section.
[7] However, Mr
Snoyman on behalf of the third respondent does not agree. He
contends that:
(1)
Section 33
of the
Insolvency Act
applies
and the relief sought by the applicant cannot be granted
until the applicant gives an indemnity;
(2) The applicant’s claims have
prescribed in view of the lapse of time before the applicant
launched this application;
(3) The applicant cannot approbate
and reprobate: he has received and retained the purchase price paid
by Esther Greenberg at
the sale in execution on 7 November 2001 and
he is now seeking to recover the property sold at the auction.
In
my view there is no merit in any of these contentions.
Indemnity
[8]
Section 33(1)
of the
Insolvency
Act reads
as follows:
‘(1) A
person who, in return for any disposition which is liable to be set
aside under section twenty-six, twenty-nine,
thirty or thirty-one,
has parted with any property or security which he held or who has
lost any right against another person,
shall, if he acted in good
faith, not be obliged to restore any property or other benefit
received under such disposition, unless
the trustee has indemnified
him for parting with such property or security or for losing such
right.’
In these proceedings there is no
question of any disposition being set aside under
sections 26
,
29
,
30
or
31
of the
Insolvency Act and
the section clearly does not apply.
Prescription
[9]
For
prescription the third respondent relies on the following statement
in its answering affidavit:
’76.5 The
applicant cannot come to court six years after the transfer and
purport to set aside the transaction.’
The affidavit does not identify the
debt or allege when prescription commenced to run. In short there
are no facts upon which
a successful plea of prescription can be
based. Nevertheless I shall deal with the issue.
[10] In argument Mr Snoyman was unable
to explain how a claim for a declarator could be a debt in terms of
the
Prescription Act, 68 of 1969
and when prescription in respect of
such a claim began to run. He did not analyse the Act or refer to
any authority in support
of his argument.
[11] Section 11
determines the periods of prescription of debts. The applicable
provision is paragraph (d) which provides that
unless otherwise
provided in an Act of Parliament the period of prescription in
respect of all other debts (not referred to in
(a)-(c)) is three
years.
Section 12
of the
Prescription Act provides
when prescription
begins to run. The relevant provisions read as follows:
‘(1) Subject
to the provisions of subsections (2), (3), and (4), prescription
shall commence to run as soon as the
debt is due.
(2) If the debtor
wilfully prevents the creditor from coming to know of the
existence of the debt, prescription shall not
commence to run
until the creditor becomes aware of the existence of the debt.
(3) A debt shall
not be deemed to be due until the creditor has knowledge of the
identity of the debtor and of the facts
from which the debt arises:
Provided that a debtor shall be deemed to have such knowledge
if he could have acquired it by
exercising reasonable care’
[12] In
The
Master v IL Back and Co Ltd
1983 (1) SA 986
(A)
at
1004F-H the court said:
‘The
words “debt is due” in the section (i.e. 12(1)) must be
given their ordinary meaning. It seems clear that
this means that
there must be a liquidated money obligation presently claimable by
the creditor for which an action could presently
be brought against
the debtor. Stated another way, the debt must be one in respect of
which the debtor is under an obligation
to pay immediately, see
Western
Bank Ltd v SJJ van Vuuren Transport (Pty) Ltd and Others
1980
(2) SA 348
(T)
at
351 and
HMBMP
Properties (Pty) Ltd v King
1981
(1) SA 906
(N)
at
909 and the cases there cited’.
This passage makes
it clear that a claim for a declarator cannot be debt and that
prescription only begins to run in respect of
a debt when it is due
and enforceable. That happens when –
‘all the
facts have happened which are material to be proved to entitle the
plaintiff to succeed’ –
Coetzee
SAR & H
1933
CPD 565
at
570;
Evins
v Shield Insurance Co Ltd
1979
(3) SA 1136
at
1141G-H.
Even if it is
accepted that a claim for a declarator is a debt for the purposes of
the
Prescription Act prescription
did not begin to run until the
applicant had knowledge of the identity of the debtor and the facts
from which the claim arises.
This occurred in June 2006 when the
full court handed down its judgment. Until then there was a
declarator that Esther Greenberg
was the owner of the members
interest in Seagate. The full court substituted this order with an
order that Esther Greenberg was
entitled to claim delivery of the
members interest.
Section 12(3)
of the
Prescription Act applies
and
the applicant’s claim for a declarator has not prescribed.
Approbate
and reprobate
[13] This argument
cannot prevail in the face of the clear intention of
section 20(1)(a)
and (2)(b) of the
Insolvency Act. In
my view any assets which fall
in the insolvent estate vest in the Master and on his appointment,
the trustee.
It
seems to be clear that the word ‘or’ in subsection (2)(b)
must be read as meaning ‘and’ to give effect
to the clear
object of the Act, which is to place all assets of the insolvent in
the estate of the insolvent. The fact that the
sheriff received
payment of the purchase price at the auction and (apparently) handed
this over to the applicant does not detract
from that fact. The
proceeds of the sale in execution fell into the insolvent estate by
virtue of the provisions of section 20(1)(a)
and (2)(a) and until the
full bench judgment in June 2006 that was the only asset that could
fall into the insolvent estate. After
the full bench judgment it was
clear that the members interest fell into the insolvent estate and
that the deceased estate of Esther
Greenberg had a claim for delivery
of the members interest. There is no suggestion in the evidence that
the executrix of the deceased
estate demanded delivery of the members
interest. In view of his decision not to deliver the members
interest the applicant may
have to repay the purchase price but that
does not alter the legal position created by section 20.
[14] Despite the
findings of the full court regarding the transfer of the members
interest to Esther Greenberg and the order made
that she has a claim
for transfer of the members interest Mr Snoyman persisted in arguing
that the members interest had been transferred
to Esther Greenberg
and she or her estate now hold the members interest. The full court
referred to the relevant facts and said:
‘There are
other requirements, but section 15(1) also requires for a valid
transfer of a members interest that the amended
founding statement
must be “signed … by or on behalf of any person who will
become a member” on registration
of the amended founding
statement. I have pointed out that on 13 May 2002 the sheriff, in an
attempt to transfer Greenberg’s
interest to the fourth
respondent (i.e. Esther Greenberg), submitted to the registrar an
amended founding statement. On this document
the sheriff, as he had
to, signed on behalf of Greenberg. The sheriff however also signed
on the fourth respondent’s behalf.
For that the sheriff had no
authority. By the reasoning that I have followed in regard to the
attempted transfer of 15 November
2001, the sheriff’s attempt
to transfer Greenberg’s interest to the fourth respondent did
not have the desired result.
The fourth respondent at all relevant
times had and she still has, a contractual right to the transfer of
the members interest.’
The third respondent is therefore not
entitled to argue that Esther Greenberg received transfer of the
members interest on 13 May
2002.
[15] Mr Snoyman did not argue the
other points raised in his heads of argument: that the applicant is
not entitled to bring the
application because
section 73
of the
Insolvency Act was
not complied with; that the application was
prematurely enrolled because
Rule 6(5)(f)
was not complied with;
that the papers have not been served on the executrix of the deceased
estate of Esther Greenberg. He also
did not ask for an order in
terms of the Notice in terms of
Rule 47(1)
which was delivered on 2
March 2009, the day on which the application was to be heard.
[16] Lionel
Greenberg first sought a postponement so that he could file his
answering affidavit and then addressed the court as
to why the relief
sought by the applicant should not be granted. The argument depends
on proof that the sheriff did not validly
attach the members interest
prior to the sale in execution on 7 November 2001. The correctness
of the attachment has not been
challenged previously and has been
accepted by both Patel J and the full court. Furthermore on 6
November 2001 Blieden J refused
Lionel Greenberg’s application
to stop the sale in execution. There is nothing to indicate how
proof of the invalidity of
the attachment prior to the sale will
affect the judgments and orders of the courts who have ruled on this
dispute. As pointed
out in the reasons for refusing the applications
for postponement the disposition of the members interest by Lionel
Greenberg would
offend against the provisions of
section 26
of the
Insolvency Act and
in all probability would be set aside.
[17] Finally, it
must be recorded that Mr Snoyman was unable to explain what the
nature of the third respondent’s interest
in this litigation
is. According to Lionel Greenberg his interest is to prove his
innocence and vindicate his good name. This
reinforces the
impression that Lionel Greenberg and his sisters are acting in
concert to prevent the law from taking its course.
Order
[18] The following orders are made:
(1) It is declared that the membership
interest held by Lionel Mervin Greenberg in Seagate Technologies CC
forms part of the insolvent
estate of Lionel Mervin Greenberg;
(2) It is declared that the members
interest of Lionel Mervin Greenberg in Seagate Technologies CC is to
be dealt with in the winding-up
of the affairs of the insolvent
estate of Lionel Mervin Greenberg;
(3) The fifth respondent is directed
to take all such steps as are necessary to amend his records to
reflect that Lionel Mervin
Greenberg is the sole member of Seagate
Technologies CC;
(4) The third respondent and Lionel
Mervin Greenberg are ordered jointly and severally to pay the costs
of this application.
____________________
B.R
.
SOUTHWOOD
JUDGE OF THE
HIGH COURT
CASE NO:
317/07
HEARD
ON: 4 March 2009
FOR
THE APPLICANT: ADV. J.W. STEYN
INSTRUCTED
BY: Mr R. Bosch of Riaan Bosch Attorneys
FOR
THE THIRD RESPONDENT: ADV. C. SNOYMAN
INSTRUCTED
BY: Mr Seedat of RA Seedat
FOR
THE INTERVENING RESPONDENT: Adv. F. Kriel
INSTRUCTED
BY: Mr L. Marks of Larry Marks Attorneys
DATE
OF JUDGMENT: 18 March 2009