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[2008] ZAWCHC 299
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Vincemus Investments (Pty) Ltd t/a Kempton Truck Hire v Laher and Another (4099/2008) [2008] ZAWCHC 299 (19 November 2008)
IN
THE HIGH COURT OF SOUTH AFRICA
(CAPE
OF
GOOD HOPE PROVINCIAL DIVISION)
CASE NO
:
4099/2008
DATE
:
19
NOVEMBER 2008
In
the matter between:
VINCEMUS
INVESTMENTS (PTY) LTD
APPLICANT
t/a
KEMPTON TRUCK HIRE
and
A
LAHER & ONE OTHER
1
st
and
2
nd
Respondents
JUDGMENT
GAUNTLETT,
AJ:
[1]
This
is the postponed return day of a provisional sequestration order. The
respondent this morning sought a further postponement.
After hearing
him, both initially and later at great length, and counsel for the
applicant, I refused that appfication for reasons
I said ! would
later indicate. I thereafter heard argument on the merits. These are
my reasons in respect of the refusal of the
postponement and my order
and reasons in respect of the merits of the matter.
[2]
I refused the postponement mindful of the fact that the respondent is
a lay person, albeit a businessman clearly articulate
and
commercially adept. The application was for a further postponement of
some four weeks now. The chronology in these proceedings
is very
shortly that they appear to have been launched on 14 May. On 26
September a provisional sequestration order was granted
by
Van
Reenen, J
.
returnable on 29 October. On that day the applicant sought a
postponement of some 10 weeks but was granted a postponement of three
weeks. This, I was told, was on the basis that the applicant wished
to arrange his finances to engage attorneys and counsel.
[3]
The respondent has been on notice at least since March of the
current
proceedings.
He was allowed three weeks as
I
have
indicated
after 29 October in order to put his financial affairs in order to
the extent that he could do so. There is no indication
that the
further period will have the beneficial effect not effected first
between March and September, then between September
and October, and
thereafter between 29 October and today. He has not even engaged an
attorney yet nor has he put up any affidavit.
His request to me
today, he conceded, impliedly amounts to seeking to achieve the very
10 weeks delay he sought to procure but
failed to do on 29 October.
[4]
The only glimmering of a substantive defence in the letter handed up
by htm relates to contended disputes regarding ownership
of certain
Sea Point fiats and his [[abilities arising therefrom. There is no
evident reason why the relevant facts, at least in
that regard, could
not have been put up in an affidavit and put before me. These are
presumably facts within his knowledge if he
is able to advance them
as a defence. They would not appear to be, on the face of it, a
matter of such inherent complexity that
he has been disabled for this
considerable period of time from doing.
[5]
Turning to the merits of the matter I am satisfied that the
respondent has committed the acts of insolvency detailed in the
application. It would also appear that there is significant equity in
properties which the respondent has reflected as owning Moreover,
it
would seem likely that he may own other assets which he has not fully
disclosed The irregularities indicated as having been
committed by
him would benefit from proper investigation. I am satisfied that
there is a reasonable prospect of an advantage to
creditors arising
from his sequestration. For the reasons I have given, in my view, a
proper case is made out for the order sought.
[6]
The respondent is accordingly placed under final sequestration in
terms of the draft order handed up to me reading as follows:
"1.
A final order of sequestration is granted.
2.
The costs of the application shall be costs in the sequestration
GAUNTLETT,
AJ