Janse van Rensburg N.O and Others v Master of the High Court, Kimberley Northern Cape Division and Others (448/04) [2006] ZANCHC 97 (23 June 2006)

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[2006] ZANCHC 97
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Janse van Rensburg N.O and Others v Master of the High Court, Kimberley Northern Cape Division and Others (448/04) [2006] ZANCHC 97 (23 June 2006)

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IN THE HIGH COURT
OF SOUTH AFRICA
(Northern Cape Division)
Case
no: 448\04
Date
heard: 2006-06-19
Date
delivered: 2006-06-23
In
the matter of
:
JACOBUS
HENDRIKUS JANSE VAN RENSBURG N.O. 1
ST
APPLICANT
in
his capacity as final trustee in the Insolvent Estate of
CORNELIUS
JOHANNES BARNARD
NEVILLE
CLOETE N.O. 2
ND
APPLICANT
in
his capacity as final trustee in the Insolvent Estate of
CORNELIUS
JOHANNES BARNARD
ABRAHAM
JOHANNES SWANEPOEL N.O. 3
RD
APPLICANT
in
his capacity as final trustee in the Insolvent Estate of
CORNELIUS
JOHANNES BARNARD
versus
THE
MASTER OF THE HIGH COURT, 1
ST
RESPONDENT
KIMBERLEY NORTHERN CAPE DIVISION
MARTHINUS
CHRISTOFFEL BARNARD N.O. 2
ND
RESPONDENT
in
his capacity as Executor in the deceased estate of
late
MARIETJIE BARNARD (Master’s ref.: 87/2001)
Coram:
MAJIEDT
J
et
WILLIAMS
J
JUDGMENT
ON APPLICATION FOR LEAVE TO APPEAL
MAJIEDT
J:
The
applicants seek leave to appeal against our judgment of 21 October
2005 in which their application for review was dismissed
with costs.
The application for leave to appeal was dismissed with costs on an
ex
tempore
ruling
– these are the reasons for the said order.
The grounds upon which
leave to appeal is sought are the following:
a) That
we erred in our finding that factual disputes exist and that
therefore the approach set forth in
Plascon
Evans Paints Ltd v Van Riebeeck Paints (Pty) Ltd 1984(3) SA 623 (A)
should
be applied. More specifically it is said that we erred in not
admitting as evidence the statements made by the insolvent on
affidavit in his earlier sequestration application and in not
attaching sufficient weight to the fact that the insolvent did not
present an affidavit in the present proceedings in support of the
second respondent’s affidavit.
b) That
we erred in finding that the insolvent, Mr. Barnard (snr), should
have been joined as a party to these proceedings.
c) That
we erred in finding the delay in bringing the review application to
have been unreasonable and in particular in our finding
that the
provisions of section 111 of the Insolvency Act, No. 24 of 1936 (“
the
Act
”)
apply instead of those contained in section 151 of the Act; also in
finding the delay to have been unreasonable in the absence
of
prejudice on the part of either of the respondents; also in finding
the provisions of the
Promotion of Administrative Justice Act, No. 3
of 2000
to be applicable to the proceedings and finding that it was
necessary for the applicants to apply for condonation herein.
3.1 All
the abovementioned matters have been dealt with fully in our
judgment.
3.2 With
regard to the inadmissibility in the present proceedings of the
insolvent’s evidence proffered by way of answering affidavit
in his
sequestration application, it is such settled law that it does not in
my view require any further elucidation.
3.3 Furthermore,
and in any event, the insolvent is not a party to these proceedings.
As was alluded to in our judgment on the main
application, the
non-joinder of the insolvent and of the children of the insolvent and
the deceased, may well be fatal to the applicants’
application. We
nevertheless regarded it as practical and in the interests of justice
to proceed with the matter, notwithstanding
this potential fatal
defect in the applicants’ case. Be that as it may, the reality of
the situation is that the insolvent was
not joined as a party to
these proceedings. Consequently, whatever the insolvent had said in
the sequestration application by way
of affidavit, can never be
admissible as evidence in these proceedings. The insolvent has a
direct and material interest in these
proceedings and I still fail to
comprehend why he and the children of the insolvent and the deceased
had not been joined as co-respondents
in this matter.
3.4 There
is accordingly in my view no merit at all in the contention that we
had erred in not admitting as evidence the insolvent’s
statements
on oath made in the sequestration application.
In
the preceding paragraph I had dealt briefly with our finding that
the insolvent should have been joined as a party to these

proceedings. There can be no doubt that the insolvent was a central
figure to these proceedings; after all, the applicants were
attacking in essence his so-called “
repudiasie
sertifikaat
”.
In addition, this Court’s finding on the issues before it would
clearly have had a direct and material effect on the insolvent,
i.e.
as to whether he would become a beneficiary under his wife’s will
or not. Consequently I am similarly of the view on this
aspect that
there is no merit in the contention that we erred in this finding.
In any event, as I have already alluded to hereinbefore,
we had
proceeded with the matter on the basis that the merits can be
decided in the absence before us of the insolvent and the
children
of the insolvent and the deceased. In this regard we had afforded
the applicants the benefit and had proceeded to adjudicate
the
matter on its merits.
5.1 With
regard to the delay, the only submission which Mr. Daniels for the
applicants has made before us, is that the respondents
have not shown
any prejudice in this regard. The prejudice which is at issue here
is not only the prejudice to the respondents before
the Court, but
also to the broader general public. In this regard, Nugent JA put it
thus in
Gqwetha
v Transkei Development Corporation Ltd and others 2006(2) SA 603
(SCA) at
612 F (par 22):
“
First,
the failure to bring a review within a reasonable time may cause
prejudice to the respondent. Secondly,
and
in my view more importantly
,
there is a public interest element in the finality of administrative
decisions and the exercise of administrative functions.”
(
emphasis
supplied).
See
also:
Associated
Institutions Pension Fund and others v Van Zyl and others 2005(2)
SA 302 (SCA) at 321.
5.2 In
addition to the aforementioned, Nugent JA also emphasized that:
“
Underlying that latter aspect of
the rationale is the inherent potential for prejudice, both to the
efficient functioning of the public
body and to those who rely upon
its decisions, if the validity of its decisions remains uncertain.
It is for that reason in particular
that proof of actual prejudice to
the respondent is not a precondition for refusing to entertain review
proceedings by reason of
undue delay, although the extent to which
prejudice has been shown is a relevant consideration that might even
be decisive where
the delay has been relatively slight”
at 612 H – 613 A (par.
23).
Mr
Danzfuss for the second respondent has correctly pointed out that,
whereas the applicants placed reliance on the fact of settlement
negotiations between the parties and on the need to have sought
senior counsel’s opinion to explain the delay, the facts of the
matter militate against their explanation. In this regard he has
alluded to the fact that settlement negotiations commenced only
some
three months after the 14 day-period set forth in section 111(2)(a)
of the Act had expired. In addition thereto, this present
review
application was launched only some three months subsequent to the
settlement negotiations having been terminated during
January 2004.
No explanation at all has been furnished by the applicants for the
aforementioned delay.
7.1 Another
insurmountable obstacle in the applicants’ way on this issue of
delay, is the fact that the applicants incorrectly approached
the
matter on the basis that section 151 of the Act is applicable here.
We agreed with Mr. Danzfuss in our judgment on the main
application
and still do so herein, that in fact the provisions of section 111 of
the Act apply here. The second respondent had
lodged his objection
to the Master from the outset in terms of the provisions contained in
section 111 of the Act. Thereafter the
Master, as he was in duty
bound, afforded the applicants an opportunity to reply to the
aforementioned objection. The applicants
did in fact furnish a reply
to the section 111 objection. Thereafter the Master made his ruling
in terms of section 111(2).
7.2 The
attorneys acting for the applicants mistakenly thereafter relied on
section 151 of the Act. I am satisfied, as Mr. Danzfuss
has
submitted, that section 111 is the applicable section. In terms of
the provisions contained in section 111(2)(a) of the Act,
the
applicants had to apply to a court to have the aforementioned
decision of the Master set aside, which application should have
been
brought within 14 days from the date of the Master’s instruction.
If out of time, condonation for the lateness of such application
should have been sought. In the present matter the application was
launched some 14 months after the Master’s decision. The
explanations
for the delay proffered in the applicants’ replying
affidavit are singularly unpersuasive for the reasons set forth in
the preceding
paragraph. In addition, the applicants could not be
afforded the indulgence of senior counsel’s opinion, thereby
disregarding
the clear provisions of the Act. For the reasons
further set forth in our main judgment, I am of the view that we were
correct in
our finding that the application should indeed fail by
reason of unreasonable delay.
Even
if section 151 was applicable, as the applicants contend, it would
mean that the provisions of the
Promotion of Administrative Justice
Act, 3 of 2000
, become applicable (for the reasons propounded in
par. 16 of the main judgment). In terms thereof, the
applicants had to
bring their application within 180 days
(section
7(1)
of the said Act). In
Hopkins
Boerdery (Edms) Bpk v Colyn and another [2006] 1 All SA 497 (C)
the
Court regarded a six month delay as unreasonable. Similarly in the
Gqwetha
-case
supra
,
a 14-month delay was also regarded as unreasonable.
A
further compounding problem for the applicants is that even if, as
they contended, section 151 of the Act is applicable, it is
required
in law that they should first exhaust the internal remedies set up
in the relevant legislation, before approaching this
Court on
review. Consequently they had to proceed in terms of section 111
of the Act, before approaching this Court on review.
See:
Section 7(2)
of the
Promotion of Administrative Justice Act;
Nichol
and another v
Registrar of Pension Funds and others
[2006] 1 All SA 589
(SCA) at
595 a-b.
Departure
from this statutory prescript is only allowed in exceptional
circumstances on application by the person concerned
(section 7(2)(c)
of the aforementioned Act). See: the
Nichol-case
supra,
at
595 e-g (par 17-18). In the present matter no such grounds at all
were advanced and no exceptional circumstances have been shown.
For the reasons set
forth, I am of the view that there is no reasonable prospect that
another Court may find differently on this
matter.
There
is another fundamental problem with the applicants’ application
for leave to appeal, which Mr. Danzfuss has pointed out
in the
course of his argument before us. Nowhere in their application for
leave to appeal, do the applicants attack our finding
that on the
overwhelming probabilities before us, the insolvent had in fact
repudiated the benefits under his wife’s will. It
is so that
there is, in general, a ground advanced that this Court erred in
dismissing the applicants’ application. No specific
grounds, are
however, advanced as to why our main finding to the effect that the
insolvent did in fact repudiate the benefits,
is incorrect. On this
particular aspect, for the reasons set forth in the judgment in the
main review application herein, there
is also no reasonable prospect
of success at all on appeal.
Consequently
we issued an order
ex
tempore
that
the application for leave to appeal be dismissed with costs.
___________
SA MAJIEDT
JUDGE
I
concur:
_____________
CC
WILLIAMS
JUDGE
ADVOCATE FOR
APPLICANTS : ADV AJ DANIELS
ADVOCATE
FOR SECOND RESPONDENT : ADV FWA DANZFUSS SC
ATTORNEY
FOR APPLICANTS : ELLIOT MARIS WILMANS & HAY
ATTORNEY
FOR SECOND RESPONDENT : DUNCAN & ROTHMAN
Judgment
: JANSE V RENSBURG v MASTER OF HIGH COURT
Case
no. : 448/04
MAJIEDT
J, WILLIAMS J