About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Supreme Court of Appeal
SAFLII
>>
Databases
>>
South Africa: Supreme Court of Appeal
>>
1995
>>
[1995] ZASCA 123
|
|
Wallach v Wallach (430/92) [1995] ZASCA 123 (9 November 1995)
APPEAL COURT
Case No 430/92
P S WALLACH
APPELLANT
vs
R M E WALLACH
RESPONDENT
CORAM
: HEFER, NESTADT JJA et VAN COLLER
DATE HEARD
: 9
NOVEMBER 1995
REASONS GIVEN IN COURT
:
The above matter was argued in Court on 9 November. The attached reasons
were handed in on 13 November 1995 by H H NESTADT, JA.
Case No
430/92 PS WALLACH v R M E WALLACH
Nestadt. JA
:
This is not a matter in which any particular principles of law arise for
determination. We have come to a fixed, firm conclusion as
to its outcome. We
think it desirable that the matter be concluded as soon as possible. For these
reasons we therefore propose to
give judgment immediately. In doing so I shall
not deal with all the arguments that were advanced before us particularly by the
appellant
and the respondent. I confine myself to the essential aspects of the
matter.
The first question that arises is whether the application by the
intervening creditor should be granted. The points argued in support
of their
opposition to the application for intervention by the appellant and respondent
were, in the main, that the trustee by accepting
payment of the sum of R660 000
from the insurer reduced the value of the estate and that the bank was
responsible for this situation
and that this was "a violation of the concursus"
and secondly that the bank did not have a sufficient interest in the
sequestration
as to justify its intervention and that in any event the
application was a frivolous one. There is no merit in these contentions
and
there is no justifiable basis for their opposition to the application for
intervention. Indeed the appellant eventually conceded
before us that the bank
had a sufficient interest. Despite the appellant's and the respondent's
arguments to the contrary I am satisfied
that the papers established that the
bank has a proved creditor and that it is one of the major creditors. It was
faced with the
situation that both the appellant and respondent were seeking
to
2
have the sequestion order set aside. This would be the result of the
appeal succeeding. In these circumstances the bank had a sufficient
interest to
entitle it even at this late stage to intervene with a view to opposing the
appeal including the application for condonation.
Of course the bank would have
been bound to appreciate that this Court would not allow the appeal simply
because there was no longer
opposition to the appeal. But even so it was, it
seems to me, entitled to seek to ensure that this did not happen. The
application
for intervention will therefore be granted. Whether the bank was
entitled to file the voluminous papers which it did and which contributed
to the
application comprising some 600 pages is another matter. I return later to this
aspect when dealing with what costs orders
should be made. I mention now however
that Mr
Lazarus
on behalf of the bank, quite properly conceded that at
best for him the bank should only obtain a third of the costs of its
affidavits.
The second issue concerns the application for condonation of the late
filing or lodgment of the notice of appeal. I leave aside that
there is no
further application for the late lodgment of the record. In his application the
appellant seeks to explain his delay
of some 16 months in filing his notice of
appeal. In my opinion the reasons given are entirely inadequate. The factor
relied on is
the fire and in particular the allegation that he only learnt of
the insurance payout to the trustee in June 1992. On the strength
of this it is
submitted that the appellant was not in a position to file his notice of appeal
earlier. This cannot be so. The appellant
was bound to decide on the basis of
the affidavits that were before the
3
Court when the final sequestion order was granted whether or not to
appeal. What happened thereafter in regard to the administration
of the estate
is irrelevant. In other words the appellant cannot rely on his dissatisfaction
with the administration of the estate
to excuse his delay in appealing. Indeed
the inference to be drawn is that the appellant deliberately elected to accept
or to abide
by the order sequestrating him. In the result there is no basis on
which it can be said that sufficient cause for condonation has
been shown and on
this basis alone the application for condonation falls to be refused.
There is however a further and perhaps more substantial basis for
refusing the application for condonation. This concerns the merits
of the appeal
itself. If there are no reasonable prospects of success this is a further reason
for refusing the application for condonation.
The pith of what the appellant and
the respondent contend in this regard, ie in respect of the merits of the appeal
itself, is the
following. That the respondent did not have a claim against him
which was due and payable, that the estate has been improperly administered,
that he was or is not insolvent, that he was wrongfully induced by Mr Hacker to
sign his affidavit of the 9 March 1991, that the
sequestion is not to the
advantage of creditors, that the fire of the 17 February 1991 and/or the
subsequent fire affected the position,
particularly in that the respondent's
claim against the estate was thereby diminished and that the final order was
obtained without
the respondent's instructions because of alleged improper
conduct by Hacker, or that the appellant did not know that a final order
was to
be taken. Here too, the argument must be rejected. It overlooks the
4
nature of the proceedings before us. We cannot, as was more
than
once pointed out to the appellant and the respondent during
argument
before us today, have regard to extraneous matters, to
allegations
which do not appear from the record before us. We
therefore cannot
have regard to, for example, the allegations
concerning the alleged
improper conduct of Hacker. Nor is the
appellant's complaint that
the house should have been restored
rather than the insurance pay-out
accepted and that the estate has
been improperly administered in
other respects of any relevance. Nor
can the appellant be permitted
to attempt to show, by means of new
matter or changed
circumstances, that the respondent was not a
creditor or that he was
not insolvent or that his sequestration
would not be to the advantage
of creditors. Some of the matters
raised may possibly be relevant
to an application which the
appellant may or may not be entitled to
bring to set aside the
sequestration order in terms of sec 149(2). But
they cannot concern
us. The appellant cannot be permitted to set
aside the sequestration
order through the back door of an appeal. All
we can do is to look
at the record to which I referred. The appellant
cannot argue
matters unknown to and not before the court below. If,
on the
evidence before the court below a sequestration order was
properly
granted that is an end to the matter. The appeal must fail.
Looking
at the matter thus it is clear that a sequestion
order was properly
granted. The respondent's uncontested
allegations established that
she was a creditor of the appellant in the
liquidated sum of R400
000 which amount was due and owing; that
the appellant had committed
an act of insolvency in terms of sec 8(g)
5
and that he was insolvent and thirdly, that the sequestration was to the
advantage of creditors. There is no basis on which the court
a
quo
could
exercise a discretion in these circumstances against the grant of a final order.
True, the fire was referred to before the
final order was granted, but it was
referred to by the appellant in support of the grant of the final order, ie to
show that there
was no point in any further extensions being granted because the
property could not be sold. The argument that the requirements of
the
sequestration order were not satisfied is therefore not tenable. I should add
this by way of emphasis that the applicant's complaint
argued before us that the
respondent's allegations were not proved is without substance. The respondent's
allegations in the sequestration
proceedings were proved. They were not based on
hearsay. They were, as I have indicated, undisputed.
The result is that finding as I do that the appeal itself would not
succeed, the application for condonation must, for this further
reason, be
refused. The appellant and the respondent asked at one stage that the matter be
referred to the Constitutional Court to
enable, in the words of the respondent,
her to establish her right to equality. I do not know what she means by this. I
think she
must be left and the appellant as well to pursue whatever remedies
they consider are available to them. Certainly there is no constitutional
issue
before us.
I must return briefly to the question of costs. There was no prayer for
costs in the application to intervene. But this does not preclude
the
intervening creditor from asking for costs now. The
6
appellant and respondent were made aware of the bank's claim for costs in
counsel's heads of argument dated 18 October 1995 and there
is no reason to
think that either the appellant or the respondent would not have opposed the
intervention had costs been claimed
ab
initio
. Both the appellant and the
respondent have made common cause in opposing the application to intervene. They
have been unsuccessful
in such opposition and both must therefore pay the costs
of the intervening creditor subject however to two qualifications in regard
to
the costs of the petition and replying affidavit, namely, (i) only the costs
occasioned by the opposition will be allowed.
This means that the intervening creditor will not be entitled
to
any costs of the petition itself, and (ii) only
one-third of the costs of the replying affidavit will be
allowed. As to the rest of the bank's costs, including those occasioned
by its representation before us today, the appellant and the
respondent will
have to jointly pay these.
The following order is made.
(1) The intervening creditor is granted leave to intervene in the
appeal.
(2) The appellant and the respondent are ordered to jointly pay the
intervening creditor's costs arising out of the appellant's and
respondent's
opposition to the petition to intervene, subject to the following
qualifications:
(a) No costs will be allowed in respect
of the petition
7
itself.
(b) The intervening creditor will only be allowed one third of its costs in
respect of its replying affidavit in the petition for
leave to
intervene.
(c) The appellant's application for condonation of the late lodging of the
notice of appeal is
dismissed.
H H Nestadt
Judge of Appeal
9 November 1995