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IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, PRETORIA
CASE NO.: A278/2022
(1) REPORTABLE: Y ES/NO
(2) OF INTEREST TO OTHER JUDGES: YES/NO
(3) REVISED.
05/06/2025
In the matter between:
CLIVE MALCOM ELLISON Appellant
and
MARTHINUS JACOBUS DEWALD BREYTENBACH First Respondent
NO
RICHARD HICKEN NO Second Respondent
_________________________________________________________________
JUDGMENT
_________________________________________________________________
Van der Westhuizen, J
[1] The appellant appealed the whole judgment and order by Collis J delivered on
17 June 2022 in an application for the eviction of the appellant from the
property occupied by the appellant . In her j udgment Collis J held that the
appellant be evic ted from the property known as 2[...] D[...] Road Waterkloof,
Pretoria, and that the appellant’s counterclaim stood to be dismissed.
[2] The said application before Collis J followed on an order on 12 April 20 18 by
Kollapen J as he then was, which acknowledged an order granted by the
Deputy Registrar Schaffer of the High Court of Justice in Bankruptcy (UK) on
4 October 2000. In th e latter order the appellant was held to be bankrupt .
Kollapen J further recognised the appointment of the first respondent as
trustee of the appellant’s insolvent estate . The second respondent was the
trustee appointed in the UK.
[3] Following investigations in South Africa, the first respondent obtained
information that the appellant owned property situated in South Africa that fell
within his insolvent estate . That information led to the launch of the
application before Kolla pen J. The order granted by Kollapen J entitled the
first respondent to administer the assets of the appellant within South Africa in
terms of the South African Insolvency Act (the Kollapen order).
[4] It is to be noted that the appellant has not yet been rehabilitated in the UK and
that he remains an und ischarged bankrupt there, and following on the
Kollapen order, in South Africa as well .
[5] There was no appeal against the order of Ko llapen J.
[6] In the application before Collis, J., the appellant contended that the effect of
the Kollapen order amounted to the granting of a sequestration order against
the appellant in ter ms of the South African Insolvency Act. Presumab ly this
contention by the appellant was derived from the wording of the Kollapen
order where it stated “ Entitling the applicant (first respondent) to administer
the first respondent (the appellant) as if a sequestration order had been
granted against him by a South African court .”
[7] In my view, there is no merit in the appellant ’s contention in that regard. The
order b y Kollapen J is clear , and there is no ambiguity. Primarily the
bankruptcy order of the UK was acknowle dged and the empowerment of the
first respondent followed consequentially. No “new” insolvency order in terms
of the South African Insolve ncy law was granted.
[8] Furthermore, the application before Collis J was not the forum to address any
possible ambiguity in the Kollapen order , of which there is none.
[9] In respect of the principles applicable to orders of foreign jurisdictions, Ex
Parte Palmer NO: In re Hahn 1993 (3) SA 359 (C) held as follows:
“The point is clearly made in the judgment in the Stegman case that
immovable property of an insolvent is governed by the le x rei sitae and
inasmuch as his movable property is concerned by the law of his domicile, it is
a matter of convenience that a court in whose jurisdiction the insolvent ’s
immovable property lies, in the exercise of its discretion, permit all the
property of the insolvent situate within in its jurisdiction, whether it be movable
or immovable , to be administered by a foreign trustee appointed pursuant to a
sequestr ation order issued by the Court of the insolvent’s domici le, who would
as a matter of law, have the authority and power to deal with immovable
property of the insolvent .” (my underlining).
[10] The Supreme Court of Appeal in Lagoon Beach Hotel v Lehane 2016 (3) SA
143 (SA) endorsed the Palmer dictum .
[11] The Supreme Court of Appe al further held as follows:
“As pointed out above, the grant of recognition to a foreign trustee to
deal with an insolvent’s immovable property in South Africa is a matter
for the local Court’s discretion. The discretion is absolute . It is
exercised on the basis of comity and convenience.”
[12] From the foregoing it is clear that the order of Kollapen J was appropriate in
the exercise of his absolute discretio n and which order remains in force until
set aside by a competent court. That has not occurred. Consequently , the
Kollapen order was binding upon Collis J. All that Collis J was requested by
the appellant to do , was to apply a different interpretation to the Kollapen
order , albeit in terms of the counter application by the appellant.
[13] The appellant conten ded that due to the efflu xion of time, he became
rehabilitated . There is no merit in that contention. An order was granted in the
UK which held that the period of discha rge of the bankruptcy order was
suspended and consequently the appellant remained bankrupt as at the time
of the Kollapen order.
[14] In the foregoing, the findings of Kollapen J were res iudicata before Collis J.
The court a quo had no jurisdiction to entertain an apparent appeal to that
order, albeit in the form of applying a different interpretation thereof , and
consequently correctly refused to entertain such .
[15] It follows that there is no merit in this appeal and it stands to be dismissed.
[16] Accordingly, I propose the following order :
The appeal is dismissed with costs.
C J VAN DER WESTHUIZEN
JUDGE OF THE HIGH COURT
I agree and it is so ordered
N DAVIS
JUDGE OF THE HIGH COURT
I agree
N G M MAZIBUKU
JUDGE OF THE HIGH COURT
On behalf of Applicant: Adv CB Ellis
Instructed by: Jacobson & Levy Inc.
On behalf of Respondent: Adv DJ Groenewald
Instructed by: Serfontein Viljoen & Swart Attorneys
Date of Hearing: 19 February 2025
Judgment Delivered: 05 June 2025