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[2002] ZASCA 162
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Weiner NO v Broekhuysen (173/2001) [2002] ZASCA 162; [2002] 4 All SA 96 (SCA); 2003 (4) SA 301 (SCA) (31 May 2002)
THE SUPREME COURT OF APPEAL
OF SOUTH AFRICA
Case
no: 173/2001
REPORTABLE
In the matter between:
MELVYN
WEINER NO
Appellant
and
JIM GERARD PAUL
BROEKHUYSEN
Respondent
Before:
Nienaber, Howie and Cameron JJA
Appeal heard:
16
May 2002
Judgment:
31 May 2002
Administration orders –
Magistrates’ Courts Act 32 of
1944
,
s 74
– Interpretation of – Administrator’s
entitlement to fees
JUDGMENT
___________________________________________________________
CAMERON JA:
Introduction
In the Magistrate’s Court at Wynberg, the appellant was on 11
May 1998 appointed the administrator in the estate of a married
couple who were unable to meet their financial obligations. The
order was granted in terms of s 74(1) of the Magistrates’
Courts Act 32 of 1944 (‘the Act’). This provides for
the administration under court supervision of the estate of
a debtor
in financial straits. Such an order structures the debtor’s
liabilities and provides for their repayment under
the direction of
the administrator,
1
thus keeping the creditors from the door. But the terms of the
order granted in this case gave rise to a dispute between the
appellant (‘the administrator’) and the respondent, who
was at the time, because of loans he had advanced to them,
the
couple’s biggest creditor (‘the creditor’), and
therefore most likely to be affected.
The appeal originates in an application the creditor brought some
months after the grant of the original order to amend it.
At first
instance in the Wynberg Magistrates’ Court the creditor was
largely successful. The Magistrate granted relief
substantially
amending the original order, and ordered the administrator to pay
the costs of the amendment application from his
own pocket on an
attorney and client scale. Against that order the administrator
then appealed to the Cape High Court, which
pruned the relief the
creditor had obtained, and reduced the burden of the costs order
imposed on the administrator. But in
substantial respects the Cape
Court (‘the Court below’) endorsed the approach the
magistrate had taken in amending
the original order,
2
and despite the administrator’s limited success it ordered the
creditor to pay only half of the administrator’s costs
of
appeal. Against that order the administrator now appeals with the
leave of the Court below (obtained after an abortive appeal
to a
three judge court of that division had first been lodged and then
struck from the roll).
3
More than four years after the grant of the original order, the
affairs of the couple – whose modest income, his as a
local
authority administration assistant, hers as a cleaning supervisor –
have paled in the legal contest. The struggle
now concerns
primarily the powers and duties of a professional administrator, the
conflicting interests of an administrator and
a creditor in how an
administration order is executed, and what benefits each derives
from it.
Administration orders were first introduced when the Act came into
force in 1944. Its predecessor, the Magistrates’ Court
Act 32
of 1917, had no such mechanism. The new provisions created a
procedure that was at the time rightly dubbed a ‘modified
form
of insolvency’,
4
since it is particularly suited to dealing with small estates where
sequestration proceedings would swallow the debtor’s
assets.
5
As Caney AJ explained more than fifty years ago:
‘
This is designed, it seems to me, as a means of
obtaining a
concursus creditorum
easily, quickly and
inexpensively, and is particularly appropriate for dealing with the
affairs of debtors who have little assets
and income and genuinely
wish to cope with financial misfortune which has overtaken them.
Creditors have certain advantages under
such an order, including the
appointment of an independent administrator and the opportunity of
examining the debtor. They are
not debarred from sequestrating the
debtor if the occasion to do so arises.’
6
The provisions, which have frequently been amended,
7
are now spelt out in prolific detail in s 74 and its associated
provisions, s 74A to 74W. The upper limit of the liabilities
of a
debtor wishing to benefit from the procedure, which the Minister of
Justice determines by promulgation from time to time,
is currently
R50 000.
8
Despite the detail the statute contains, this appeal demonstrates
the extent to which disputes about its implementation can
nevertheless arise. The pivotal question it raises is whether the
creditor had good cause in terms of s 74Q
9
to obtain an amendment of the original order. Underlying that
question is a dispute between the creditor and the administrator
about the manner in which the original order was obtained, questions
about the inter-relation between the relevant statutory
provisions,
and perhaps most importantly (not only to the parties to the appeal,
but also to debtors subject to such orders)
the emoluments to which
an administrator is entitled. To deal with these questions
adequately some factual background is necessary.
Facts
Although the debtors themselves formally applied for the original
order, it bore the name and appears to have emanated from the
office
of the administrator, the present appellant, whom they asked the
court to appoint. The application was, as the statute
requires (s
74A(5)),
10
delivered to each of the couple’s creditors. The respondent
in the appeal, being the largest creditor, objected to the
size of
the monthly amount the couple tendered to pay (R830, 00 per month).
11
He thought it too small. So he despatched an attorney to the
Wynberg court. Before the matter was called, his attorney arranged
with the administrator (himself an attorney, and who appears of
record for himself in this matter, but who is apparently engaged
largely in the business of statutory debtors’ administration),
for the amount to be increased to R1 130,00.
In his capacity as an attorney the administrator then moved the
application. He handed the Magistrate a draft order. This was
made
an order of court. On 15 June 1998 the creditor’s attorneys
received a copy. The result was a strenuous objection
and a
protracted wrangle resulting in this appeal.
The first paragraph of the original order gave rise to the trouble.
It reads thus (for clarity I have numbered its five distinct
components):
The applicant is, in terms of
section 74 of the Magistrates’ Court Act 1944, placed under
administration. Melvyn Weiner
of NW Financial Administrators CC is,
in terms of section 74E,
12
appointed Administrator and applicant is to pay R1 130 per month to
the Administrator as from 30 May 1008 and thereafter on the
30
th
day of each month, for pro rata distribution amongst all proven
creditors.
The first distribution shall be
for payment to the Administrator up to and including end August
1998, subject to the Administrator’s
right to delay the
distribution if in his opinion there is not sufficient money to
cover all costs and to still do a viable distribution.
Thereafter, every subsequent
distribution shall be in respect of each three payments received by
the Administrator.
The costs of the application for
administration shall be costs in the Administration, and the
Administrator shall be entitled
to deduct the said costs from the
money paid to him by the Applicant in terms of this order, before
calculating and effecting
the first distribution.
Before effecting a distribution
the Administrator may also deduct his costs in respect of sections
74L, 74M and paragraphs 1(a)
and (b) of the general provisions to
the tariff for section 74.
The Magistrate deleted components (2), (3) (4) and (5) of the
original order. (He also gave other relief and a costs order that
the Court below set aside and which is accordingly not now
relevant.) The Court below confirmed the deletion of components (2)
and (3). It considered component (4) either unexceptionable as
being in accord with the provisions of s 74O
13
or for that reason superfluous (and therefore also subject to
deletion).
14
In respect of component (5) the Court below held that ‘costs’
had a narrow signification and that the application
of the term in
relation to the remuneration that may be deducted in terms of s
74L(1)(a),
15
as well as the additional fees that are provided for by para 1(b) of
the General Provision in respect of Proceedings in terms
of Section
74 of the Act (Part III of Annexure 2 to the Rules of the
Magistrates’ Courts)
16
‘clearly inappropriate’, as was the reference to s 74M.
Component (5) was therefore also deleted. It is against
this order
(apart from the deletion of the reference to s 74M), together with
the costs order the Court below granted, that this
appeal is
brought.
Did the Creditor have ‘Good Cause’ for Amending the
Original Order?
Section 74Q(1)
17
requires that ‘good cause’ be shown before a subsisting
administration order can be amended. The creditor objected
to the
order granted on two bases: that it differed materially from that to
which his attorney had consented on his behalf and
had thus been
obtained without his consent; and that it conflicted with the
provisions of the statute. It is unnecessary to
consider in detail
what ‘good cause’ in s 74Q comprehends, since it is
plain that an order granted in conflict with
the statute is subject
to amendment in terms of s 74Q, and that any interested party (the
creditor clearly being one) would have
cause to seek its amendment.
For the same reason it is unnecessary at this stage to examine the
creditor’s complaint about
the manner in which the
administrator obtained the order during the court proceedings on 11
May 1998; I consider that later in
connection with costs.
Component (2)
The creditor’s complaint about component (2) is that it makes
the first distribution subject to the administrator’s
power to
delay it indefinitely and thus violates the basic scheme of the
statute. These submissions are well founded. Section
74J deals
with the duties of an administrator. It reads in part:
An administrator shall collect the
payments to be made in terms of the administration order concerned
and shall keep up to date
a list (which shall be available for
inspection, free of charge, by the debtor and creditors or their
attorneys during office
hours) of all payments and other funds
received by him from or on behalf of the debtor, indicating the
amount and date of each
payment, and shall, subject to section 74L,
distribute such payments pro rata among the creditors at least once
every three months,
unless all the creditors otherwise agree or the
court otherwise orders in any particular case.
This provision must be read with Section 74C(1). Sub-paragraph (a)
specifies that an administration order ‘shall be in
the form
prescribed by the rules’ and requires that it ‘lay down
the amount of the weekly or monthly or other payments
to be made’.
Sub-paragraph (b) provides additionally that the order ‘may
specify’ certain other matters, including
‘(v) such other provisions or conditions as the court may deem
necessary or expedient.’
It is plain from s 74J(1) that a court granting an administration
order must in general require the administrator to effect
distributions to creditors ‘at least once every three months’.
That is the position by default. Deviation is licensed
in two
circumstances: where the creditors all agree, or where ‘the
court otherwise orders’. Here the creditors did
not agree.
The only basis for deviation was therefore an order by the
Magistrate. But such an order, though the Magistrate
has clear
power to make it, is not there merely for the asking. It must be
sought for reasons disclosed in the application that
is served on
the creditors. Notice to the creditors is essential precisely
because the provision envisages a different order
even if they
withhold agreement or actively oppose it. The implication is that
their consent will first be sought. If they
are not notified that
deviation will be sought, they are entitled to assume that the order
will specify that distributions must
occur ‘at least once
every three months’.
In the present case, the original application gave no inkling that
distributions were contemplated on any basis other than at
least
once every three months. The application served on the creditors
told them merely that the debtors would apply for an
order placing
their estate under administration in terms of s 74 ‘and asking
the Court to add such further conditions as
it may deem necessary or
expedient in terms of section 74C(1)(b)(v)’. The appellant’s
counsel contended that the
order as granted falls within the express
powers conferred on a court in granting an administration order.
That misses the point,
which is both procedural and substantive. If
deviation from the basic scheme of the Act is to be licensed, it
must be for reasons
disclosed in the application. Deviation by
stealth or ambush or oversight is not permitted.
The Court below considered that because the creditor was content to
agree to an order alluding to s 74C(1)(b)(v), he in anticipation
‘resigned himself to the insertion of such provisions and
conditions as the court deemed necessary or expedient’.
18
I cannot agree. The statute contemplates distributions at least
three-monthly, unless all the creditors agree or the court
orders
otherwise. Either the creditors’ consent to a different
scheme of distribution must be procured in advance or,
if that is
lacking, their attention must be alerted to the fact that such an
order will be sought. An anodyne allusion to s
74C(1)(b)(v) cannot
obliterate the structure of the Act or the creditors’ just
expectations under it. The order granting
the administrator the
‘right’ to delay distribution was therefore
inappropriate on the ground of absence of notice
to the creditors
alone.
Component (2) in any event suffers from further vices. The order
places the date of the first distribution at the behest of
the
administrator. That date is to be fixed when he forms an ‘opinion’
as to a certain state of affairs. Such an
order contemplates a
delegation of the Magistrate’s power to specify the terms of
the administration that the legislation
does not authorise. It is
therefore inherently bad. What is more, the order granted permits
the opinion to be formed on the
occasion of an event in which the
administrator has a direct interest, namely whether there is
‘sufficient money to cover
all costs’. The conflict is
patent, and it is undesirable. The order also expresses that event
with manifest imprecision:
what is a ‘viable distribution’?
This leaves the creditors at the mercy of the administrator’s
subjective
perception of what duty and convenience may require.
Counsel for the appellant contended that interested parties are
protected because subsections 74J(11) and (12)
19
create supervisory mechanisms and controls, and because s 74E(2)
provides that an administrator may on good cause be relieved
of his
appointment.
20
Reference may be made also to s 74N.
21
These protections are no doubt important. But they do not suffice
where the order is inherently flawed. This one clearly is.
As the
Court below observed, court orders should not be formulated so as to
leave compliance at the discretion of the person
bound by them.
22
This infringes not only the principle that such orders should be
capable of enforcement, but the principle of certainty by legal
regulation. Such a state of affairs is intolerable, and component
(2) was vitiated in all its essentials.
Component (3)
This component upends the basic scheme of the statute. Similar
reasoning to that under component (2) applies. Unless otherwise
agreed or ordered, the statute contemplates that debtors under
administration must make regular payments, which are to be converted
into regular distributions to their creditors. Instead of providing
for distributions at least once every three months, component
(3)
made distributions subject to receipt by the administrator of three
payments from the debtors. But what if the debtors paid
irregularly? In that case component (3) provided that the creditors
were to receive not even irregular distributions, as the
payments
came in: they were to be paid only after the third payment came in.
As the Court below pointed out, ‘the Legislature
in s 74J(1)
intended making the distribution of moneys received from debtors to
be time- and not event-related’.
23
The third component was therefore also bad.
Component (4)
The administrator contended that since the Court below found this
component to accord with the statute, it should not have been
deleted. Counsel for the respondent however submitted that
component (4) ‘does not accord entirely’ with s 74O.
24
She rightly pointed out that the costs of applying for the order,
which are recoverable under s 74O, differ entirely from the
costs of
the actual administration, with which s 74L
25
deals. She conceded that where the costs are recoverable from the
administrator, they are a first claim against the money the
administrator controls. However, she rightly emphasised that s 74O
does not entitle an administrator simply to deduct his application
costs from the payments the debtors make (although these costs would
be a first charge against the moneys he controls). Section
74J(5)
26
requires the administrator to complete a distribution account (Form
52). That form, as counsel pointed out, makes provision
for the
deduction of only s 74L administration costs. No express mention is
made of s 74O application costs. Form 52 however
clearly provides
for ‘other payments’ to be made during the
administration, and these would if necessary obviously
encompass
also s 74O application costs. Respondent’s counsel fell back
on the contention that it was ‘undesirable’
that the
administrator should have been granted an order that he could deduct
his s 74O costs where he was also given the power
to delay
distribution indefinitely. That is no doubt so; but the offending
portions of the order have already been condemned
to excision. It
follows that the conclusion of the Court below that component (4)
accorded with the Act is right. I can also
however not fault its
conclusion that if component (4) was merely intended to reflect the
relevant provision in the Act, there
could be no point in including
it. By corollary there can be no objection to excluding it. No
costs or any other issue of consequence
in any event turns on this.
Component (5)
The most opaque part of the parties’ dispute concerned
component (5). As already noted, the administrator conceded that
the reference to s 74M
27
was inappropriate. Section 74M licenses the collection of charges,
not their disbursement. As it stands, the rest of component
(5) may
seem uncontentious, since it merely permits the administrator to
deduct his s 74L administration costs as well as those
in
‘paragraphs 1(a) and (b) of the general provisions to the
tariff for section 74’.
This blandness masks a dispute of substance, however, since the
administrator and the creditor in their opposing papers took
diametrically opposite views on the interpretation of s 74L and the
costs it licenses. The Court below, in addition, held that
the word
‘costs’ as it appears in component (5) was
inappropriate, since s 74L and the general provisions of the
tariff
do not contemplate ‘compensation for the expense of litigation
incurred’.
28
And this conclusion the administrator specifically challenged on
appeal. What is more, the decision of the Court below has
been
interpreted in a way that makes it desirable that this Court resolve
the issue.
29
The starting point in doing so must be s 74L, which empowers an
administrator, before making a distribution, to (a) ‘deduct
from the money collected his necessary expenses and a remuneration
determined in accordance with a tariff prescribed in the rules’;
and (b) retain a portion of the money collected to defray costs if
the debtor defaults or disappears. Section 74L(2) goes on
to
provide:
‘The
expenses and remuneration mentioned in subsection (1)(a) shall not
exceed 12½ per cent of the amount of collected
moneys received
and such expenses and remuneration shall, upon application by any
interested party, be subject to taxation by the
clerk of the court
and review by any judicial officer.’
The difficulty arises from the Tariff promulgated under the Rules.
It is contained in Part III of Annexure 2 to the Rules.
This has
already in part been footnoted. Its significance to this portion of
the appeal however makes it necessary to set it
out more fully:
PART III
GENERAL PROVISIONS IN RESPECT OF PROCEEDINGS IN TERMS OF SECTION 74
OF THE ACT
The following fees shall be
allowed in addition to those laid down in the Tariff to this Part:
All necessary disbursements
incurred in connection with the proceedings.
In addition to the fees stated
below, the administrator shall be entitled to a fee of 10% on each
instalment collected for the
redemption of capital and costs.
For the purposes of items 4 and 5
of the Tariff to this Part, a folio shall consist of 100 written or
printed words or figures
and four figures shall be reckoned as one
word.
Under a separate heading, a nine-item Tariff then follows. The items
the Tariff enumerates, as the Court below pointed out,
30
make provision for fees in relation to applications for
administration orders as well as for proceedings after they have been
granted. Included is a general item, item 9, alluding to
‘correspondences and attendances’.
The problem in reconciling Part III with section 74L is this.
Section 74L(1) gives an administrator an entitlement to necessary
expenses and a remuneration determined in accordance with a
prescribed tariff, while s 74L(2) states that the ‘expenses
and remuneration mentioned in subsection 1(a) shall not exceed 12½
per cent of the amount of collected moneys received’.
But
Part III appears to contemplate recovery for the items expressly
specified under the Tariff,
plus
necessary disbursements,
plus
, in addition to the Tariff fees, a fee of 10% on each
instalment collected. This led the administrator to contend that he
was
entitled to a 10% fee on collections over and above his
necessary expenses and the allowances specified under the Tariff.
In
effect, the administrator contended, while the statute caps his
expenses and Tariff items at 12½ % of moneys collected,
his
10% allowance is additional to that.
The creditor contended, conversely, that the 10% fee Part III allows
must be reckoned as part of the 12½ % cap s 74L(2)
imposes.
It is not difficult to see why the parties’ contentions differ
so widely. The impact on small distributions
of calculating and
deducting fees in the one way rather than the other will be
substantial, with a significant resultant impact
on creditors’
recovery. We were told during argument that administration orders
have assumed far greater importance since
the burgeoning of the
micro-lending business, with resultant friction between
money-lenders and administrators, which the contentions
in this case
seem to illustrate.
As indicated, the difficulty arises from the fact that Part III
seems to create three heads of recovery, namely (i) Tariff fees;
(ii) necessary disbursements; and (iii) an additional 10% fee, while
s 74L contemplates only ‘necessary expenses’
and a
‘remuneration’, the two together being limited to a 12½
% cap. There thus appears to be a conflict.
If so, it must of
course be resolved within the terms of the authorising statute.
Section 74L makes no mention of a ‘fee’.
The drafters
of the Rules must therefore be taken, in referring in Part III to a
10% fee, to have acted within the s 74L power
to determine ‘a
remuneration determined in accordance with a tariff prescribed in
the rules’. That provision is
the sole source of any power to
determine a ‘fee’ in Part III. But that same
remuneration s 74L(2) expressly states
(together with expenses) to
be subject to a maximum, namely 12½ % of moneys collected.
I therefore conclude that the creditor’s contentions must
prevail, and that Part III must be read as subordinating the
administrator’s entitlement to a 10% fee on moneys collected
to the 12½ % total cap the statute lays down. Put
differently, the ‘tariff’ referred to in s 74L(1) is
Part III in its entirety, and not just the nine-item list headed
‘Tariff”. It follows that to the extent that component
(5) of the original order granted could be read as securing
to the
administrator any recovery (whether for fees, expenses or
remuneration) in excess of a 12½ % maximum of the moneys
collected, it was also bad and should be excised. This approach is
somewhat different from that of the Court below,
31
and I do not find it necessary to say anything about the meaning of
‘costs’ in component (5).
Costs
It follows from this that the appeal must be dismissed. The
administrator appealed also against the refusal by the Court below
to intervene more radically in the costs order imposed at first
instance. The Magistrate ordered the administrator to bear the
costs of the amendment application on an attorney and client scale
from his own pocket (
de bonis propriis
). The Court below
altered that in two respects: (a) the administrator was to pay only
half of the amendment application costs,
albeit still from his own
pocket; (b) the costs were to be taxed on the ordinary
party-and-party scale.
Before us, counsel for the administrator contended that the Court
below had misdirected itself in intervening in this limited
fashion.
The submission is unsound. The Magistrate rightly took into
account the fact that the terms of the order the administrator
sought, which deviated from the default position the statute
creates, had not in advance been drawn to the attention of the
creditors, nor, as he found, to the attention of the Magistrate who
issued the original order. In argument counsel for the
administrator properly conceded that the terms of the draft order
the administrator handed up to the Magistrate in the original
application should have been drawn to the creditor’s
attention. That concession puts paid to any suggestion of
misdirection.
As for the costs of appeal, it was not suggested that the
administrator prosecuted the appeal in the interests of or because
of some necessity related to the debtors’ estate. The costs
should therefore come from his own pocket.
In the result, the appeal is dismissed with costs, which the
appellant is to pay
de bonis propriis
.
E CAMERON
JUDGE OF APPEAL
NIENABER JA ) CONCUR
HOWIE JA )
1
Section 74(1):
Where a debtor-
(a) is unable forthwith to pay the
amount of any judgment obtained against him in court, or to meet his
financial obligations,
and has not sufficient assets capable of
attachment to satisfy such judgment or obligations; and
(b) states that the total amount of
all his debts due does not exceed the amount* determined by the
Minister from time to time
by notice in the Gazette,
such court or the court of the
district in which the debtor resides or carries on business or is
employed may, upon application
by the debtor or under section 65I,
subject to such conditions as the court may deem fit with regard to
security, preservation
or disposal of assets, realization of
movables subject to hypothec (except movables referred to in section
34 of the Land Bank
Act, 1944 (Act 13 of 1944)), or otherwise, make
an order (in this Act called an administration order) providing for
the administration
of his estate and for the payment of his debts in
instalments or otherwise.
2
Weiner NO v Broekhuysen
2001 (2) SA 716
(C) (van Reenen J and
Revelas AJ).
3
For a similar conclusion that leave cannot be granted to appeal to a
three judge bench of a provincial or local division from
a decision
of a two-judge appellate court, see
S v McMillan
2001 (1)
SACR 148
(W).
4
Jones and Buckle
The Civil Practice of the Magistrates’
Courts in South Africa
5ed (1946), approved in
Madari v
Cassim
1950 (2) SA 35
(D) 38, though criticised by CP Joubert
(1956) 19
THRHR
135
at 138.
5
Jones and Buckle
The Civil Practice of the Magistrates’
Courts in South Africa
9 ed (1997) page 305.
6
Madari v Cassim
1950 (2) SA 35 (D) 38.
7
Particularly by Act 63 of 1976, which inserted sections 74A to 74W;
see JC du Plessis and others
De Rebus
June 1978 289-292.
8
GN R1441,
Government Gazette
19435 of 30 October 1998, with
effect from 1 November 1998.
9
Section 74Q (1) reads:
(1) The court under whose supervision
any administration order is being executed, may at any time upon
application by the debtor
or any interested party re-open the
proceedings and call upon the debtor to appear for such further
examination as the court
may deem necessary, and the court may
thereupon on good cause shown suspend, amend or rescind the
administration order, and when
it suspends such an order it may
impose such conditions as it may deem just and reasonable.
10
Section 74(5):
The debtor shall lodge an application
for an administration order and the statement referred to in
subsection (1) with the clerk
of the court and shall deliver to each
of his creditors, at least 3 days before the date appointed for the
hearing, personally
or by registered post a copy of such application
and statement on which shall appear the case number under which the
original
application was filed.
11
Section 74A(2)(l), read with Form 51, requires that the debtor’s
statement of affairs lodged with the application for an
administration order state ‘the amount of the weekly or
monthly or other instalments which the debtor offers to pay toward
settlement’ of current debts.
12
Section 74E(1):
(1) When an administration order has
been granted under section 74 (1), the court shall appoint a person
as administrator, which
appointment shall become effective only
after a copy of the administration order has been handed or sent to
him by registered
post and, in the event of his being required as
administrator to give security, after he has given such security.
13
S 74O:
Unless the court otherwise orders or
this Act otherwise provides, no costs in connection with any
application in terms of section
74 (1) shall be recovered from any
person other than the administrator concerned, and then as a first
claim against the moneys
controlled by him.
14
2001 (2) SA 716
(C) 723C-H and 725B.
15
Section 74L:
(1) An administrator may, before
making a distribution –
(a) deduct from the money collected
his necessary expenses and a remuneration determined in accordance
with a tariff prescribed
in the rules;
(b) retain a portion of the money
collected, in the manner and up to an amount prescribed in the
rules, to cover the costs that
he may have to incur if the debtor is
in default or disappears.
(2) The expenses and remuneration
mentioned in subsection (1) (a) shall not exceed 12% per cent of the
amount of collected moneys
received and such expenses and
remuneration shall, upon application by any interested party, be
subject to taxation by the clerk
of the court and review by any
judicial officer.
16
Part III provides in part:
The following fees shall be
allowed in addition to those laid down in the Tariff to this Part:
All necessary disbursements
incurred in connection with the proceedings.
In addition to the fees stated
below, the administrator shall be entitled to a fee of 10% on each
instalment collected for
the redemption of capital and costs.
[Stipulates the number of printed
or written words or figures that constitute a folio for purposes of
the Tariff.]
(A nine-item Tariff then follows under
a separate heading.)
17
Set out in footnote 9 above.
18
2001 (2) SA 716
(C) 722G-H.
19
Section 74J (11) and (12):
(11) If an administrator fails to
lodge a distribution account with the clerk of the court within one
month from the time his
obligation to do so commenced, any
interested party may apply to the court for an order directing him
to lodge a distribution
account with the clerk of the court within
the time laid down in the order or relieving him of his office as
administrator.
(12) If an administrator has lodged a
distribution account with the clerk of the court but has failed to
pay any amount of money
due to any creditor in terms of such account
within one month thereafter, the court may upon the application of
the creditor
order the administrator to pay the creditor the amount
concerned within such period as may be fixed in the order and
furthermore
to pay to the debtor's estate an amount which is double
the amount which he failed so to pay.
20
Section 74E(2):
(2) An administrator may on good cause
shown be relieved of his appointment by the court, and the court may
appoint any other
person in his place.
21
74N
Failure by administrator to perform his duties
An administrator shall take the proper
steps to enforce an administration order, and if he fails to do so,
any creditor may, by
leave of the court, take those steps, and the
court may thereupon order the administrator to pay the costs of the
creditor de
bonis propriis.
22
2001 (2) SA 716 (C) 722-3.
23
2001 (2) SA 716
(C) 723A-B.
24
Section 74O
Costs of application for administration order
Unless the court otherwise orders or
this Act otherwise provides, no costs in connection with any
application in terms of section
74 (1) shall be recovered from any
person other than the administrator concerned, and then as a first
claim against the moneys
controlled by him.
25
74L
Remuneration and expenses of administrator
(1) An administrator may, before
making a distribution-
(a) deduct from the money collected
his necessary expenses and a remuneration determined in accordance
with a tariff prescribed
in the rules;
(b) retain a portion of the money
collected, in the manner and up to an amount prescribed in the
rules, to cover the costs that
he may have to incur if the debtor is
in default or disappears.
(2) The expenses and remuneration
mentioned in subsection (1) (a) shall not exceed 12« per cent
of the amount of collected
moneys received and such expenses and
remuneration shall, upon application by any interested party, be
subject to taxation by
the clerk of the court and review by any
judicial officer.
26
Section 74J(5):
(5) Every distribution account in
respect of the periodical payments and other funds received by an
administrator shall be numbered
consecutively, shall bear the case
number under which the administration order has been filed, shall be
in the form prescribed
in the rules, shall be signed by the
administrator and shall be lodged at the office of the clerk of the
court where it may be
inspected free of charge by the debtor and the
creditors or their attorneys during office hours.
27
Section 74M
Furnishing of information by administrator
The administrator shall upon payment
of the fees prescribed in the rules-
(a) furnish any creditor applying
therefor with such information about the progress made in regard to
the administration as he
may desire; and
(b) furnish any person applying
therefor with a copy of the debtor's application and statement of
his affairs mentioned in sections
74 and 74A (1), or with a list or
account mentioned in section 74G (1) or 74J, or with the debtor's
statement of his affairs
mentioned in section 65I (2).
28
2001 (2) SA 716
(C) 724H-I.
29
Jones and Buckle (above) Service 7,
2001, Act 321-322.
30
2001 (2) SA 716
(C) 724F.
31
2001 (2) SA 716
(C) 724H-I.