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1994
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[1994] ZASCA 113
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Hirschowitz v Gilinsky (102/92) [1994] ZASCA 113 (15 September 1994)
CG CASE NUMBER: 102/92
IN THE SUPREME COURT OF SOUTH AFRICA (APPELLATE DIVISION)
In the matter between:
CYNTHIA DINA HIRSCHOWITZ
Appellant
and
RAYMOND MORRIS GILINSKY
Respondent
CORAM:
VAN HEERDEN, KUMLEBEN et VAN DEN HEEVER
JJA
HEARD ON:
5 SEPTEMBER 1994
DELIVERED ON
:
15 SEPTEMBER 1994
J U D G M E N T
VAN DEN HEEVER JA
2
Appellant and her husband are married out of community of property. She
is a nursery school teacher, he an insurance agent in the
employ of Norwich Life
Insurance Company ("Norwich"). In 1983 a residential property known as 4 Johnson
Road, St Andrews in Bedfordview
was registered in her name. This is encumbered
by a mortgage bond in favour of Norwich.
Respondent lent money to Mr Hirshowitz who on 20 May 1991 signed an
acknowledgement that the sum of R369 000 was due and payable by
him. On the same
day appellant bound herself as surety and co-principal debtor to respondent for
this debt of her husband's.
Respondent obtained summary judgment against the couple jointly and
severally on 13 August 1991 for this unpaid capital amount, interest
and costs.
The deputy sheriff rendered a nulla bona return in respect of Mr Hirshowitz.
Appellant too failed to satisfy the judgment
debt, and the sheriff attached
household furniture listed in his return which is clearly inadequate to cover
the amount in issue.
Respondent then on 11
3
September 1991 launched an application to sequestrate her
estate.
The application was careless and required to be supplemented
by various affidavits, but led to the grant of a provisional order of
sequestration. No opposing affidavit was filed by appellant herself, the only
factual opposition consisting of an ambiguous affidavit
by Mr Hirshowitz. On the
return day of the rule nisi which had been extended when the matter was
postponed many times, argument was
advanced that no benefit of creditors had
been established. The court a quo held that it had been shown that appellant was
insolvent
and that benefit to creditors was perhaps slight, but was there. The
rule was confirmed.
Appellant noted an appeal against the sequestration order but was
singularly remiss in complying with the rules of court relating
to the
prosecution of the appeal. She requires condonation before her appeal can be
heard, and a petition was filed in that regard.
Respondent, too, requires
condonation: for failing to file a power of attorney along with his heads of
argument. His counsel informed
the court that by agreement
4
between the parties neither application for condonation would be opposed.
That, however, is not the end of the matter, since although
consent by the
opposition is a factor to be considered in the exercise of its discretion, the
court is not bound by such consent.
(
P E Bosman Transport Works Committee and
Others v Piet Bosnian Transport (Pty) Ltd
1980 (4) SA 794
(A).
According to appellant's petition, what happened after the appeal had
been noted (on 6 March 1992) was as follows:
The attorneys argued about the amount of security appellant was to
provide, respondent's attorney demanding an excessive amount. The
parties
ultimately agreed on R12 000, which she had difficulty in raising on her salary
with a young family to provide for. It was
only "during or about August 1992"
that she was able with the assistance of relatives to provide security in this
reduced sum.
The record (a single volume) was not prepared timeously. Six copies
should have been lodged within three months of the final order
or
5
such further period as respondent might agree to. The judge had however
neither corrected nor signed the typed version of the judgment
he had given
orally in court. Respondent was asked by letter, dated 18 June 1992, for a six
weeks' extension of time to lodge the
record. This was refused. The copy of the
two-page judgment annexed to her petition shows that it was signed as having
been corrected
on 2 July 1992. Appellant herself says nothing at all to explain
why the record was lodged only on 22 March 1993 after the petition
for
condonation had been filed, on the 17th. The only information we have about the
delay, is contained in an affidavit to which
appellant herself does not refer in
her petition, headed "Affidavit in support of the Petition for Condonation",
deposed to not by
appellant's attorney but his secretary Ms Fine. She says that
the completed record had been prepared and security received in trust
"by August
1992". There is no explanation whatsoever why it was not immediately lodged. She
merely says that "during or about October
1992", therefore two months later, her
employer handed
6
her the Petition for Condonation and the verifying affidavit which was to
be signed and attested to by appellant. She was told to
forward the required
copies of the record to the firm's Bloemfontein correspondent, and to write to
Mr Krowitz confirming that her
employer was holding the security agreed upon, in
trust. Appellant signed and verified the petition on 1 November. Ms Fine
returned
it to the file. Then her husband fell ill during November, he was
hospitalised, she was away from office first to attend to him and,
after his
release, to accompany him on holiday, returning to work only on 11 January 1993.
It was only when Mr Hirshowitz delivered
a letter addressed to appellant by his
trustees giving her six weeks' notice to vacate 4 Johnson Road since the
property was to be
sold, that Ms Fine started looking for the appellant's File
which had in the meanwhile been mislaid.
There is no explanation whatsoever for the two month hiatus between
August when the record was ready, and October when she was told
to send it off;
nor of what arrangements, if any, were made to
7
attend to clients' interests during the absence of the attorney's
secretary on her own affairs.
Appellant was left in the lurch not
only by her attorney, but also by counsel who had filed heads of argument but
gave notice at the
last moment that he would not be appearing on her behalf. The
matter had been set down for 5 September, which would be awkward for
him: he
wished to be home in Johannesburg before sundown because of the Jewish religious
holiday. Respondent's team refused to agree
to a postponement to a later date.
The court had agreed to accommodate appellant's counsel by starting early to
allow him ample time,
should he come by car, to return timeously, but counsel
decided - according to appellant, who appeared in person - that the concession
was insufficient.
Appellant commenced her address to court by asking that the matter be
referred to the Constitutional Court on the grounds that her
right to be
represented by a lawyer of her choice and his right to religious freedom were
somehow being infringed - a proposition
so
8
singularly unmeritorious than no more need be said about
it.
I have set out the allegations in the application for
condonation in fairly detailed fashion. Those allegations reflect a laxity in
regard to the rules of court that amounts almost to contempt. Although the fault
lies at the door of her attorney rather than that
of appellant, there is a stage
beyond which the court will not be disposed to come to the assistance of a
litigant on that score
alone, regardless of the merits or demerits of the appeal
itself. The record before us however satisfies me that no injustice will
be done
to appellant should her application for condonation be refused.
Facts that emerge from the petition along with its supplementary
affidavits and the affidavit of Mr Hirshowitz, may be listed as
follows:
The Bedfordview house was valued at R750 000.
The bond on this property in favour of Norwich was passed within the six
months preceding the provisional sequestration of her estate,
appellant having
signed the relevant power of attorney on 24 June 1991.
9
Mr Hirshowitz told respondent that the bond was passed to secure money to
be lent to him by Norwich; and told respondent's attorney
Mr Krowitz during an
interview in the attorney's office that his and appellant's indebtedness to
Norwich was less than R800 000 but
had "pre-existed the lodgment of the Bond by
a considerable time, and well in excess of two months".
It appeared from Hirshowitz's affidavit that the bond was for R800 000. I
call his affidavit ambiguous, because in it he quarrels
with Mr Krowitz for
having got Norwich's name wrong, and denies irrelevant features of the interview
between them - for example,
who requested it. He also denies that there was any
discussion between them "about any indebtedness to my employees (sic)" and
points
out that according to respondent, he, Hirshowitz, had informed respondent
of a causa for the bond different to the one mentioned
to Krowitz.
The application alleged that appellant and her husband had been involved
in large transactions over the preceding years and a number
of
10
prior bonds had been passed over the Bedfordview property and cancelled
again, and that, on sequestration, search by a trustee might
lead to the
discovery of further assets. Moreover there was a reasonable prospect that the
Norwich bond could be set aside so that
respondent and other creditors of
appellant could share in the proceeds of a sale of the house. Without
sequestration of appellant's
estate respondent would be left out in the cold and
only Norwich, a creditor in the first instance of Mr Hirshowitz, would benefit
from the sale of the house by virtue of the suspect bond.
The best proof of solvency is payment of one's debts. It was not
seriously contended that the court a quo erred in finding it proven
that
appellant was unable to do so despite the many postponements and extensions of
the rule which could have been sought with no
other purpose in mind than to give
her the opportunity to do so.
The point was not taken on behalf of appellant either in the court a quo
or before us, that what her husband said to either respondent
or his
11
attorney was inadmissible against appellant. His utterances of course do
not prove the truth of the matters asserted. However, the
fact that he made such
statements (or "a statement", in view of his denial of the conversation Mr
Krowitz alleged) read with the
nature of his comments, or the lack thereof, in
his affidavit, provide circumstantial corroboration of respondent's allegation
that
the validity of the preference afforded Norwich by the bond needs to be
investigated. Where appellant went to the trouble of filing
an affidavit by her
husband at all, one would have expected it to say more than it did. He merely
denied the content of the admitted
conversation with Mr Krowitz, but did not
deny saying to respondent what respondent says he did.
According to that utterance, he knows what the purpose of the bond was,
and that it related to his own liability towards Norwich.
The fact that he does
not set out facts which would allay suspicion of the bond, is cause for added
suspicion. On the probabilities
sequestration wilt "secure some useful purpose"
as envisaged in
Hillhouse v Stott
:
12
Freban Investments (Pty) Ltd v Itzkin
:
Botha v Botha
1990
(4) SA 580
(W) at 585 E-F, referring back to the earlier decision in
Meskin
& Co v Friedman
1948 (2) SA 555
(W). 558-9. Moreover, Norwich ultimately
filed an affidavit in which it, too, supported the application.
It
is not only appellant's legal advisers who were at fault. In his application for
condonation for late filing of his power of attorney,
respondent's attorney
gives as reason for this omission merely that he was unaware of the requirements
of the rule. Moreover, he
improperly attempts to introduce as an annexure to his
petition evidence, adverse to appellant, of events which occurred after she
had
been finally sequestrated.
In the result, appellant's application for condonation is refused with
costs which include the costs of appeal.
13
Respondent's application for condonation is granted, respondent
to
pay any costs occasioned by it.
L VAN DEN HEEVER JA CONCUR:
VAN HEERDEN JA) KUMLEBEN JA)