Voget and 2 Others v Kleynhans (3119/2002) [2002] ZAWCHC 41 (8 August 2002)

About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Western Cape High Court, Cape Town
SAFLII
>>
Databases
>>
South Africa: Western Cape High Court, Cape Town
>>
2002
>>
[2002] ZAWCHC 41
|

|

Voget and 2 Others v Kleynhans (3119/2002) [2002] ZAWCHC 41; 2003 (2) SA 148 (C) (8 August 2002)

IN THE HIGH COURT OF
SOUTH AFRICA
(EASTERN CIRCUIT LOCAL
DIVISION)
CASE NO: 3119/2002
In the matter between:
DENNIS HAROLD VOGET
AND 2 OTHERS
and
ANDRE KLEYNHANS
JUDGMENT: 8 AUGUST
2002
VAN
REENEN, J:
1] First-,
second- and third plaintiffs have instituted an action in this court
in which they claim payment from the defendant of
an amount of R970
000; interest thereon
a
tempore morae;
and
costs of suit.
2] The
plaintiffs base their cause of action thereon that the defendant, an
attorney who represented second- and third plaintiffs
in an action
instituted against them by one L. Naude (Naude) under Case No:
49/96, acted in breach of an express alternatively,
an implied term
of their agreement to “… perform the services in a proper and
professional manner and without negligence” and
that they, as a
consequence thereof, suffered damages in the amount claimed.
3] First-
and second plaintiffs are married in community of property.
4] As
second- and third plaintiffs were unable to satisfy the judgment
obtained against them pursuant to a settlement that had been
reached
with Naude, the joint estate of first- and second plaintiffs was
sequestrated. That resulted in both of them being insolvents
for the
purposes of the provisions of the Insolvency Act, No 24 and 1936
(the Act) (See:
De
Wet N.O. vs Jurgens
1970(3) SA 38 (A) at 48 C – H;
Ex
Parte Geeringh
1980(2) SA 788 (O) at 788 in fine – 789 A;
Acar
v Pierce and Other Like Applications
1986(2) SA 827 (W)).
5] The
defendant entered an appearance to defend and in addition to filing a
plea in which he denied liability, filed an exception
in the
following terms:
“
1. The FIRST and
SECOND PLAINTIFF are
unrehabilitated
insolvents;
The alleged cause of
action upon which the FIRST and SECOND PLAINTIFFS rely arose prior
to the sequestration of the FIRST and SECOND
PLAINTIFFS;
The FIRST and
SECOND PLAINTIFFS’ claim does not fall within the scope of claims
in
Section 23
of the
Insolvency Act No. 24 of 1936
in terms of which
the FIRST
and
SECOND PLAINTIFFS can sue in their own name;
Accordingly the
FIRST and SECOND PLAINTIFFS have no
locus
standi
to bring the action against the DEFENDANT”
6] I
assume that the concept “
locus
standi
”
in paragraph 4 of the Notice of Exception has been used in the sense
of a direct and substantial interest in the right which is
the
subject-matter of the litigation and the outcome thereof (See:
Jacobs en ‘n Ander v Waks en Andere
1992(1) SA 521 (A) at 533 in fine – 534 B) and not in the sense of
legal capacity to litigate.
7] The
question whether a party has
locus
standi
to sue may be dealt with by means of an exception (See:
Van Zyl NO v Bolton
1994(4) SA 648 (C) at 651 D – E and the cases there cited).
8] The
onus to show that a pleading is excipiable rests on an excipient
(See:
Kotsopoulus v Bilardi
1970(2) SA 391 (C) at 395 D;
Amalgamated
Footwear and Leather Industries v Jordan & Co Ltd
1948(2) SA 891 (C) at 893;
South
African National Parks v Ras
2002(2) SA 537 (C) at 541 E –
542 F).
9]
For
the purpose of deciding an exception a court must assume the
correctness of the factual averments made in the relevant pleading,
unless they are palpably untrue or so improbable that they cannot be
accepted (See:
Natal
Fresh Produce Growers’ Association and Others v Agroserve (Pty)
Ltd and Others
1990(4) SA 749 (N) at 754 J – 755 B;
Van
Zyl N.O. v Bolton
(supra) at 651 E – F).
10] The
factual averments in the plaintiffs’ particulars of claim, if
accepted as correct, in my view, do constitute a cause of
action
against the defendant in respect of at least part of the damages that
they are claiming from the defendant.
11] Does
thát cause of action form part of the first and second plaintiffs’
insolvent estate?
12] In
terms of the provisions of
Section 20(1)
of the Act the effect of the
sequestration of the estate of an insolvent is to vest it in the
Master until a trustee has been appointed,
and, upon the appointment
of a trustee, to vest it in him/her.
13]
Section
20(2)
of the Act provides that for the purposes of
Section 20(1)
thereof, the estate of an insolvent shall include
all
the property of an insolvent at the date of sequestration, including
property or the proceeds thereof which are in the hands
of a sheriff
or a messenger under a writ of attachment;
all
property which the insolvent may acquire or which may accrue to
him/her during sequestration, except as otherwise provided in
Section 23.
0i
n; line-height: 200%">
14] “Property”
is in
section 2
of the Act defined as movable or immovable property
where-ever situate within the Republic of South Africa and includes
contingent
interests in property other than the contingent interests
of a fidei commissary heir or legatee and “movable property” is
defined
as every kind of property and every right or interest which
is not immovable property.
15] A
right of action constitutes “movable incorporeal property” (per
Caney J, in
Ormerod
v Deputy Sheriff, Durban
1965(4) SA 670 (D & CLD) at 673 G – H) capable of forming
part of an insolvent’s estate (See:
De
Villiers N.O. v Kaplan
1960(4) SA 476 (C) at 479 E – H;
Van
Niekerk v Bayer Suid Afrika (Edms) Bpk
1998(4) All SA 212 (NC)) if it exists at the date of sequestration
or accrues during sequestration, unless
section 23
of the Act
provides otherwise.
16] A
cause of action comes into being when all the
facta
probanda
i.e. the entire set of facts which gives rise to an enforceable
claim, including every fact which is material to be proved to entitle
a plaintiff to succeed in his/her/its claim, have arisen (See:
Thomas v BMW South Africa (Pty) Ltd
1996(2) SA 106 (C) at 118 D – E and the cases there cited). On
the basis of the averments made in the Particulars of Claim the
plaintiffs’ cause of action, in my view, came into existence prior
to the first and second plaintiffs’ sequestration and accordingly,
forms part of their insolvent estate.
17] Even
if, as counsel for the plaintiff’s submitted, first and second
plaintiffs’ claim against the defendant came into existence
during
their sequestration, it would in terms of the provisions of
section
20(2)(b)
of the Act, still form part of their insolvent estate “…
except as otherwise provided in section twenty-three”.
18]
Section
23
of the Act provides that, subject to its own provisions and that
of
Section 24
, all property acquired by an insolvent shall belong to
his/her estate. The first and second plaintiffs’ claim against the
respondent
has nothing to do with any of the matters enumerated in
the above-mentioned two sections and are conveniently and succinctly
set
out in Sharrock et al:
Hockley’s
Insolvency Law,
6
th
Ed, 46 and
Lawsa,
Volume II (First Reissue) paragraph 165. Respondent’s counsel
submitted that the first and second plaintiffs’ claim against
the
defendant constitutes a right that does not affect the first and
second plaintiffs’ insolvent estate and that for thát reason
they
were entitled to sue the respondent in their own names and without
reference to their trustee. Examples of rights that have
been held
not to affect an insolvent’s estate are the right to receive
maintenance from an insolvent (See:
Weinberg
v Weinberg
1958(2) SA 618 (C) at 620 H) and the right to protect his/her
possession of movables by means of the possessory remedies (See:
Marais
v Engler Earthworks (Pty) Ltd: Engler Earthworks (Pty) Ltd v
Marais
1998(2) SA 450 (ECD) at 454 B – C). First and second plaintiffs’
cause of action, in my view, is not of such a nature. It
is founded
on the deleterious consequences the respondent’s alleged breach of
contract had on the patrimony of their joint estate.
To the extent
that the purpose of the action is to restore their joint estate’s
patrimonial position it in my view, is clearly
affected thereby.
19] In
any event,
section 23(6)
of the Act deals with instances where an
insolvent can sue and be sued in his/her own name, without reference
to his/her trustee
and presumably for his/her own benefit. The
plaintiffs in paragraph 1 of their particulars of claim made the
following averment:
“
The
1
st
and 2
nd
Plaintiff’s are both unrehabilitated insolvents [Master’s
reference: C34699] and have brought this action with the knowledge
and consent of their Trustee/Liquidator, S.A. Roux of George”
If
those averments are accepted as correct, as one should for the
purposes of deciding this exception, the first- and second plaintiffs
are not suing “without reference” to their trustee and
accordingly are not purporting to act in terms of
Section 23(6)
of
the Act.
20] In
view of the aforegoing I incline to the view that first and second
plaintiffs’ cause of action forms part of their insolvent
estate
and does not fall within the ambit of any of the claims in
Section 23
of the Act in respect of which they could sue in their own names and
without reference to their trustee.
21] Paragraph
3 of the Notice of Exception was formulated on the assumption that
the exception should succeed if it were to be found
that first and
second plaintiffs’ claim does not fall within the ambit of the
provisions of
Section 23
of the Act. That assumption is wrong.
22] Sequestration
does not deprive an insolvent of his/her
locus
standi
other than in those instances mentioned in
Section 23(6)
of the Act.
The deprivation of an insolvent’s
locus
standi
is a consequence of the fact that his/her estate vests in his/her
trustee who exercises all rights in respect of the property
comprising
it (See:
Marais
v Engler Earthwords (Pty) Ltd: Engler Earthworks (Pty) Ltd v
Marais
at
453 H – I). Where however an insolvent’s trustee refuses to
institute proceedings against a debtor of an insolvent estate
for the
recovery of any benefit to which the insolvent estate is entitled,
the right of an insolvent, by virtue of his/her reversionary
interest
in the insolvent estate, is recognised by our courts (See:
Mears
v Rissik, Mackenzie NO and Mears’ Trustee
1905
TS 303
at 305;
Nieuwoudt
v The Master and Others NNO
1988(4) SA 513 (A) at 524 H – 525 G;
Marais
v Engler Earthwords (Pty) Ltd : Engler Earthworks v Marais
(supra) at 453 I; sed vide:
Muller
v De Wet NO and Others
1999(2) SA 1024 (W) at 1027 J – 1030 H (reversed on appeal)).
23] In
my view the most plausible of the inferences that could be drawn from
the fact that first- and second plaintiffs’ trustee
has knowledge
of and has consented to the institution of the action by them in
their own names, is that he was not prepared to do
so (Cf:
De Polo and Another v Dreyer and Others
1991(2) SA 164 W at 177 F – G). Accordingly, first- and second
plaintiffs are entitled, by virtue of their reversionary interest
in
their sequestrated joint estate, to institute these proceedings and
do have
locus
standi,
in the first of the two senses mentioned in paragraph 6 above.
24] An
insolvent’s residual interest in his/her insolvent estate is an
entitlement to be paid any residue remaining after the estate
has
been wound up (See:
Mears v Rissik, MacKenzie NO and Mears’ Trustee
(supra) at 305). Although an insolvent may institute proceedings in
his/her own name to recover assets for the insolvent estate
where the
trustee refuses to do so, it seems logical that what is recovered, is
for the benefit of the insolvent estate and not the
insolvent
personally (See:
De Polo and Another v Dreyer and Others
(supra) at 179 D – F). That however, does not detract from such
an insolvent’s
locus
standi.
25] The
question whether first- and second plaintiffs should have joined
their trustee as a defendant or whether averments to the
effect that
the trustee is unwilling to act - an aspect that was left open by
the then Appellate Division in
Nieuwoudt
v The Master and Others NNO
(supra) at 525 I - is not an aspect that can be dealt with on
exception.
26] In
the circumstances the exception is dismissed with costs.
_______________
D.
VAN REENEN