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[2008] ZAWCHC 236
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Sass v Magistrate Malmesbury (A117/2008) [2008] ZAWCHC 236 (8 August 2008)
IN
THE HIGH COURT OF SOUTH AFRICA
(CAPE OF GOOD HOPE PROVINCIAL
DIVISION)
CASE NO
:
A117/2008
DATE
:
8
AUGUST 2008
In
the matter between:
SARAH
SASS
APPELLANT
and
THE
MAGISTRATE MALMESBURY
RESPONDENT
JUDGMENT
VELOHUIZEN.
J
The
appellant appeals to this Court against the magistrate's judgment of
6 December 2007 refusing to grant the appellant's unopposed
application for an administration order in terms of section 74(1) of
the Magistrate's Court Act 32 of 1944 (the Act).
The
applicant applied for the appointment of a non-practising attorney to
be appointed as administrator. The magistrate took the
view that
because a non-practising attorney is not required to give security,
his appointment "defeats the purpose of section
74 of the Act".
Relying on
African
Bank Limited v
Mefwyn
Weiner, 2005(4) SA 363 (SCA)
.
the magistrate held:-
"However,
regard must be had to the fact that such an attorney, when appointed
as an administrator, must act in such a capacity
(as an attorney)
throughout: he or she does not dispense with professional functions
or duties at any point in the administration."
I
do not agree with the magistrate's reasoning. In my view his reliance
on the Africa Bank Limited v Melwyn Weiner judgment of the
Supreme
Court of Appeal is misplaced. The judgment did not decide the
question of the posting of security in terms of section 74E
of the
Act by a non-practising attorney in administration orders. Section
74E(3) of the Act reads:-
"An
administrator who is not an officer of the court or a practitioner
shall, before a copy of the administration order is
handed or sent to
him by registered post, give security to the satisfaction of the
Court and thereafter, as required by the Court,
for the due and
prompt payment by htm to the parties entitled thereto of all monies
which come into his possession by virtue of
his appointment as an
administrator.''
This
sub-section was analysed in
Werner
NO v Broekhuvzen. 2001(2) SA 716 (C). Van Reenen J fReveias A J
concurring)
decided
on pages 725H to 7268:-
"Section
74E (3) provides that any administrator who is not an "officer
of the court" or a "practitioner
1
'
shall give security to the satisfaction of the Court as required by
the Court for the due and prompt payment by him or her to
the parties
entitled thereto of all monies which come into his or her possession
by virtue of his or her appointment as administrator."
Unlike
the concept "officer of the court", the concept
"practitioner" is defined in section 1 of the Act as
meaning an advocate, an attorney, an articled cterk and an agent such
as referred to therein. This definition appears to have amplified
the
ordinary meaning of practitioner which is "one engaged in the
practice of any art, profession or occupation, especially
in
medicine, surgery or law (The Shorter Oxford English Dictionary), so
as to encompass practising as well as non-practising attorneys.
We
say so because when the legislature employs that concept in the
narrower sense, for example practising attorney, it specifically
states so (see section 74J(7)). In our view the concept attorney
in the definition of practitioner means an attorney admitted
to
practise as such (see section 1 of the Attorneys Act 53 of 1979). The
magistrate in his judgment accepted that it was common
cause that the
appellant is an admitted attorney. On the basis of that finding, in
our view, he coutd not have held that the appellant
was obliged to
provide security."
We
are obliged to follow this decision unless we are convinced that it
is wrong. I am not so convinced, in fact \ agree with the
reasoning
of
Van
Reenen J
and more particularly his finding that an attorney admitted to
practise as such, but at the time of his appointment as an
administrator
is not practising, is not obliged to provide security
in applications like the present. That being the position, I fail to
see
how the appointment of a non-practising attorney who is not
required to give security will lead to the circumvention of the
provisions
of section 74 of the Act. It follows that the magistrate's
judgment falls to be set aside.
The
appeal is according
UPHELD.
HIS JUDGMENT SET ASIDE
and
replaced with the following order:-
1.
The applicant's estate is placed under administration in terms of
the provisions of section 74 of Act 32 of 1944.
Normal
Woolf Shargey of ADMS Building Solutions (Pty) Limited is appointed
as administrator of the applicant's estate.
The
said Norman Woolf Shargey is absolved from giving security for the
administration of the applicant's estate.
VELDHUIZEN,
J
E
J S STEYN, A J