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[1999] ZASCA 32
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Beddy NO v Van der Westhuizen (323/97) [1999] ZASCA 32; [1999] 3 All SA 227 (A); 1999 (3) SA 913 (SCA) (24 May 1999)
CASE
NO.323/97
IN
THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
In
the matter between
LYNDALL
BEDDY NO APPELLANT
AND
JOAN
VAN DER WESTHUIZEN RESPONDENT
BEFORE: VAN HEERDEN DCJ, HEFER, NIENABER, MARAIS and
SCHUTZ
JJA
HEARD: 7 MAY 1999
DELIVERED: 24 MAY 1999
W
P SCHUTZ
Insolvency
- claim by solvent spouse for return of asset deemed to fall into
insolvent spouse’s estate by s 21 of Insolvency
Act - under
common law collusive donation between spouses cannot found a “title
valid as against creditors” under s
21 (2) (c) - question not
whether transaction a donation but whether a collusive donation -
simulation to be ignored - on facts
collusion found.
______________________________________________________________
J U D G M E N T
________________________________________________________________
SCHUTZ
JA:
Section
21 (1) of the Insolvency Act 24 of 1936 (“the Act”)
provides that
upon the sequestration of the
separate estate of a spouse (“the insolvent”) all the
property of the other spouse (“the
solvent spouse”)
vests in the Master and thereafter in the trustee. The insolvent in
this case is Hertzog van der Westhuizen,
whose estate was finally
sequestrated at Cape Town on 2 February 1995. The solvent spouse,
to whom I shall refer as “the
wife”, is Joan van der
Westhuizen, who was the successful applicant before van Deventer J,
and who is the respondent
on appeal, leave having been refused below
and thereafter granted on petition. Her application was based on s
21 (2) of the
Act, which provides that the trustee shall release any
property of the solvent spouse “which is proved” by that
spouse
to have been acquired during the marriage “by a title
valid as against the creditors of the insolvent” (to quote the
only one of the five classes of property listed in the section that
is relevant). The purpose of s 21 is to “prevent or
at least
to hamper collusion between spouses to the detriment of creditors of
the insolvent spouse” (as van Heerden JA
put it in
De
Villiers NO v Delta Cables (Pty) Ltd
1992 (1) SA 9
(A) at 13 I); and, viewed from the other angle, “to
ensure that property which properly belonged to the insolvent ends
up in the estate” (as Goldstone J put it in
Harksen
v Lane NO And Others
[1997] ZACC 12
;
1998 (1) SA 300
(CC) at 318 E).
The
van der Westhuizens were married out of community of property in
1957. She had been a teacher and he a farmer in the Aberdeen
district. Roundabout 1982 he purchased and had transferred to
himself a holiday home at Hartenbos near Mossel Bay (“the
home”). In December 1989 he sold his farms and on 23 May
1990 he sold the home to his wife. Transfer was taken by her
on 25
September 1991. His estate was sequestrated in 1995. It was
because of the refusal of the appellant (Mrs Lyndall Beddy
- the
insolvent’s trustee - hereinafter “the trustee”)
to release the home under s 21 (2) that the application
by the wife
was brought. The trustee’s stand is that the known
circumstances, plus the spouses’ backwordness in
revealing
facts best known to themselves, throw serious doubt upon the
genuineness of the sale, and give strong grounds for
suspicion
that there was collusion between them to rescue the house out of his
estate to the prejudice of creditors.
An amendment to the insolvency
legislation in 1926 is the basis of the decision in
Maudley’s
Trustees v Maudsley
1940 TPD 399
, to the effect that the onus had been shifted to the
solvent spouse to prove one of the grounds constituting entitlement
to release
under s 21 (2) and its immediate 1926 predecessor. The
parties are agreed that the onus rests on the wife to prove that
she
acquired the home “by a title valid as against the
creditors of the insolvent”. But there was some argument as
to what the extent of this onus was, particularly whether the wife
had to disprove the applicability of sections 26 (dispositions
without value), 29 (voidable preferences), 30 (undue preferences)
and 31 (collusive dealings before sequestration). Because
of the
view which I have formed on the facts it is unnecessary to decide
this question.
Under the common law, if a
disposition has the effect of preferring the alienee above other
creditors and the disposition has
been agreed upon in order to
defraud creditors, the disposition may be set aside. The sense in
which the expression “in
order to defraud creditors” is
used is explained by Solomon JA in
Trustees,
Estate Chin v National Bank of South Africa ltd
1915 AD 353
at 363. If “the object of the transaction were to
give one creditor an unfair advantage over other creditors in case
of
insolvency, that would not necessarily be a fraud in the criminal
sense of the word, but it would certainly constitute a fraud
upon
the creditors within the ordinary meaning of that expression.”
A disposition having that purpose and that effect
cannot confer a
title valid against creditors. A person facing insolvency and the
person whom he wishes to advantage may act
overtly, if bold or
merely naive, but it is more usual that an attempt will be made to
conceal their true purpose. Once exposed
such an attempt is of no
avail, as the law is concerned with the actual intention of the
parties to a transaction:
Erf
318/1 Ladysmith (Pty) Ltd and Another v Commissioner for Inland
Revenue
[1996] ZASCA 35
;
1996 (3)
SA 942
(A) at 952 F. It is against this background that the
decisions in
Snyman
v Rheeder NO
1989
(4) SA 496
(T) at 505 I - 506 B and
Jooste
v de Witt NO
1999
(2) SA 355
(T) 361 J - 362 E should be viewed. In those cases it
was correctly held that, after putting any simulation aside, it is
the
validity of the true transaction that must be examined in order
to ascertain whether a title valid against creditors has been
established for the purposes of s 21 (2) (c). This conclusion is
reached without any resort to s 31 of the statute (collusive
dealing). Nor, since the amendment of the law in 1984, is the
enquiry whether the true transaction is a donation, as even
a
donation can now found such title. It is a collusive donation, not
any donation, just as any other collusive transaction,
that will
not satisfy the requirements of the section. As far as onus is
concerned, s 21 (2) expressly places the onus on the
solvent spouse,
and I do not think that that onus is discharged simply by pointing
to the ostensible transaction (in this case
the sale) and saying to
the trustee “It is now your turn to do your worst with it”.
The onus is on the solvent spouse
to prove the true transaction and
that it is a valid one such as may confer a valid title. Validity
is usually closely related
to the parties’ knowledge of the
alienor’s actual or imminent insolvency. In a case such as
the present there are
several theoretical possibilities, in the
light of the queries raised by the trustees: that the entire
transaction was not a
sale at all but a collusive donation, that it
was a sale but the price was collusively diminished or, again, that
it was a sale
but with the price collusively agreed not to be paid
by the wife (which latter is really a donation). In my opinion the
facts
clearly indicate that the true intention of the parties was a
collusive donation agreed upon in order to prejudice creditors and
save the home for themselves, which donation they sought to disguise
by a simulation - the sale. This means that the wife has
not
discharged the onus of proving valid title. I would add that even
if the onus had rested on the trustee, I consider that
she would
have discharged it. My reasons for these conclusions are set out
below.
The papers and much of the heads of
argument were directed to the sale in May 1990 as constituting the
disposition under consideration.
If one were concerned with the
statute then this sale would constitute a “disposition”,
as the wide definition of
that term in s 1 of the Act includes a
sale. But it also includes a transfer. However, I consider that
the answer should be
sought in the common law. The act with which
the common law concerns itself is alienation - see eg Voet 42.8.1
and van der Keessel
Theses
Selectae
200
(Lorenz translation 67) and the transfer in September 1991 was an
alienation. Although it is necessary to analyse the sale
in some
detail in order to understand the entire course of dealing, in the
end the emphasis will fall upon the transfer, because,
although the
insolvent may have been precariously solvent in May 1990, by
September 1991 he was bereft of assets whilst still
subject to a
substantial liability, and also because it is the transfer that is
ultimately relevant to the validity of the wife’s
title.
When
the evidence is considered one is struck by the generality of
much of what is presented by the wife on important matters
and by
the paucity and patchiness of documentary support . It was not that
she was not forewarned. The trustee warned her at
an early stage
that her duty entailed that she had to be presented with sufficient
evidence before she could release assets.
In her answering
affidavit the trustee raised pertinently those things that troubled
her, and which in her opinion required
explanation. Yet in her
reply the wife went so far as to say that she had already largely
dealt with the real points of dispute
in her founding affidavit.
Although she did attempt to deal with some of the points raised in
the answer, her tendency was to
be dismissive and not to face up to
them squarely. Perhaps that was because it was not possible for her
to do so.
A
convenient starting point is the purchase price for the home fixed
in the contract between the spouses on 23 May 1990. It
was R 67
000, payable in cash against registration of transfer. Questions
have been raised by the trustee both as to whether
the price was
related to market value, and, in any event, as to what, if anything,
the wife paid out of her own, rather than
the insolvent’s
estate.
As to the true value of the home,
the trustee points to the fact that when the insolvent bought it in
1981 or 1982 (transfer
was registered on 21 May 1982) the price was
already R 62 500. No mention of this price was made in the
founding papers. An
appreciation of a mere R 4500 over eight years
of the inflationery 80s is most unlikely, the trustee contends. In
her reply
the wife brushes aside the price that the insolvent paid
as irrelevant. The striking fact is that nowhere does she attempt
to
make out a positive case as to what the market value was in 1990
or in 1991. Indeed she goes so far as to say in her reply that
in
the context of the transaction with the insolvent the actual market
value in 1990 is an irrelevance. This attitude is confirmed
by
another passage in her reply, in which she says that she and the
insolvent had regard to all the facts and circumstances at
the time
when they determined the price. For her part she was satisfied that
she had been compensated for all that she had paid
out on the
insolvent’s behalf in the past (what she meant by this will
become apparent later). However, in the founding
affidavit the
emphasis had been somewhat different - not on what the spouses had
determined - but rather: “Hierdie koopprys
[R 67 000] is
destyds deur prokureur Bouwer van Graaff-Reinet
bepaal
. . .”. For whatever reason, in her reply she asserted
“Nêrens het ek beweer dat . . . Bouwer die eiendom
waardeer
het nie” (both emphases my own). What the point of the
reference to Bouwer was, other than to lend an air of respectability
to the transaction, is unclear. The passage quoted from the
founding affidavit involving Bouwer is followed by another
invocation
of authoritative confirmation in these terms: “. .
. Hereregte is ook op slegs hierdie bedrag betaal, wat deur die
Ontvanger
van Inkomste as die billike markwaarde aanvaar is.”
What the Receiver was told, other than that the cash price was R 67
000, we are not informed. Had he had sight of the wife’s
papers in this case, never mind those of the trustee, his assessment
of transfer duty might have been different.
A
further important fact put forward by the trustee is to be found in
the affidavit of the insolvent which he filed in an application
in
mid 1989 by Boland Bank to sequestrate his estate. The insolvent
succeeded in his opposition, but what is now of importance
is that
in his list of assets he reflected the home as being worth R 120
000. In her reply the wife brushes this aside with
the remark: “Ek
kan nie verantwoordelikheid aanvaar vir die insolvent se opinie van
wat die eiendom in 1989 werd sou wees
nie.” Elsewhere in her
reply she describes this value as irrelevant. The matter cannot be
so simple. The two spouses
are still married and live together.
She is accused of having colluded with him. He made an affidavit
in support of the founding
affidavit, even if it was in simple
confirmatory form. But no explanation of this value of R 120 000 is
given by him in the
reply. Accordingly, looking only at the facts
mentioned so far, before one even looks at the valuations put in by
the trustee,
there must be a strong suspicion that the home was
worth much more than R 67 000 in 1990 and in 1991.
The
trustee has produced two valuations of the home made by an
appraiser, one Levitt, in November 1996. His valuation at that
date
is R 250 000, and at May 1990, approximately R 180 000. In making
these valuations he took into account that the property
was not in
a good state of repair. The wife has raised a series of objections
to the these valuations, questioning both their
admissibility
(because Levitt did not make an affidavit) and their worth. For
instance, she contends that the appraiser is
not acquainted with the
area and has not viewed the interior. However, I do not consider
that these valuations can be brushed
aside as incapable of giving
even an approximate value much in excess of the 1990 purchase
price. Particularly is this so when
the wife has made no attempt to
put forward a lower valuation in reply. Indeed, as I have indicated
already, in her reply she
treats market value as an irrelevance.
The result is that the strong suspicion mentioned in the previous
paragraph is strengthened.
Nor
does the wife make a persuasive case that she paid R 67 000 out of
her own separate estate and not out of her husband’s.
Her
case is that she had a substantial estate of her own, partly built
up out of her independent farming activities, carried
out on the
insolvent’s farms. I shall return to this subject. Her
version of the payment of the price is that she paid
a total of R
56 511,79 direct to the bondholder, Allied Building Society, by
means of two payments out of her bank account,
of R 12 000,00 on 28
February 1990 (before the sale) and R 44 511,79 on 8 June 1990. The
balance of the price of R 10 488,21
was paid by way of further
set-off of amounts owed to her by the insolvent. The “further”
set-off is a reference
to her earlier statement that in arriving at
the price of R 67 000 the spouses had already given her credit for
the fact that
since 1986 she had paid a total of R 35 000 as
instalments on the Allied bond over the home. A difficulty with
both the R 10
488,21 and the R 35 000 is that in the insolvent’s
affidavit in mid 1989, already referred to, when he lists his
liabilities,
he makes no mention of any debts owed to his wife.
Again no explanation is given. Nor is there any objective evidence
that
an indebtedness existed. It must be borne in mind that on the
wife’s own showing the insolvent was hard pressed for money
continuously after 1986, so that any payments she may have made for
his benefit may well have been paid as part of her duty of
support
or even as a means of keeping a roof over her own head. These
problems are simply not addressed. It is all too easy
for spouses
staring insolvency in the face to fashion out of the past
liabilities that were not there before. No attempt is
made by the
wife to establish in detail how the
R
10 488,21 was made up. Even in her reply she is content to say
“Deurdat die insolvent veel meer as R 10 488,21 op die
betrokke datum [23 May 1990] aan my verskuldig was uit hoofde
daarvan dat ek finansiële bystand aan hom verleen het, het
skuldvergelyking plaasgevind.” As far as the two payments to
Allied are concerned there is, as will be explained later,
the
additional question as to whether the funds in the wife’s
bank account in May 1990 were all her own.
In
order to examine the wife’s claim that she was using her own
money and also to test her claim that the spouses believed
that the
insolvent had weathered his troubles and was not faced by probable
insolvency, it is necessary to look at their financial
histories
more closely. The wife says that she had an estate of her own
acquired from non-farming sources between 1956 and 1982.
It was
derived from pension moneys paid out to her when she gave up
teaching, and sundry gifts and inheritances, none of which
was
large. From the time of her marriage in 1957 she earned an income
from the sale of cream, milk, butter, eggs and vegetables.
She
acquired some stud Jerseys which she marked with her own brand. She
had to sell them in the 1967 drought. When it was
over she used the
proceeds to buy some angora goats, as also some milk goats. These
also bore her brand. Later she acquired
some sheep, which were
branded as hers. By means of careful husbanding of her income she
acquired livestock, implements and
other farming necessaries.
Because of the insolvent’s sale of his farms towards the end
of 1989, she was obliged to sell
these things in late February 1990.
Up to this point she has given no figures of her farming income or
the proceeds of the disposal
of her farming assets. She then claims
that she received R 110 625, 45 for this disposal, relying upon a
credit transfer in
that amount to her Nedbank account at George on 9
November 1990. The subject of the transaction is described as a
transfer by
First National Bank at Graaff-Reinet of an investment
comprising capital and interest. Other than a general statement
that these
moneys were derived from the sale of her farming assets,
we are given no details of the sale of the assets, or of the
creation
of the investment. Because there are no details of the
sale there is no evidence, other than the wife’s say so and
the
insolvent’s laconic confirmation, that these moneys were
hers and not derived from the sale of some of his assets.
On
her version the insolvent’s farming, to avail oneself of the
Afrikaans expression, went backwards. After the collapse
of the
goat and ostrich markets, in 1986 the Boland Bank, which had a bond
over his farms, terminated his credit facilities.
As a result he
suffered an acute shortage of working capital and had to devote all
his income to paying creditors. She had
to use some of her own
funds to ease his cash flow problems. She claims to have paid R 35
000 to the Allied Building society
in instalments on the bond over
the home, at least R 38 658,25 to the Land Bank, which also had a
bond over the farms, and sundry
current farming expenses. In
fact in the last few years preceding 1990 she claimed to have
maintained him. Late in 1987
she became a member of the
co-operative (Boeremakelaars (Koöp) Beperk - “BKB”).
She states this fact in order
to bolster her claim that she was
farming on her own account on a substantial scale, but does not
explain why it was only in
1987 that she became a member. Nor are
any BKB accounts annexed, either for herself or the insolvent
(assuming that he was a
member - we are not told). Such accounts
would probably have been revealing. In September and October 1987
the insolvent was
obliged to sell five bakkies in order to provide
working capital. In addition he sold a 1984 Audi motorcar to the
wife.
In
the meantime the insolvent, perennially short of funds, was still
farming on Vredelus, Voorspoed, Skoongezicht, Spioenkop
and Eiland,
principally with 2500 angora goats. On 12 July 1989 Boland Bank
obtained a provisional order of sequestration against
him. The
affidavit filed by him in those proceedings is the one already
referred to, in which he lists his assets and liabilities.
Livestock was reflected as being worth R 608 850 (after shearing)
and implements R 250 000. A surplus of assets over liabilities
of R
1 273 458,60 was reflected. Not surprisingly, on this version the
provisional order was discharged on 17 August 1989.
But the
insolvent’s farming days were ending. In December 1989 he
sold his farms. We are not told what the price was.
It is common
cause that the proceeds were sufficient to settle the claims of the
bondholders Boland Bank and the Land Bank,
and that they were paid.
We are also not told what was received for livestock and implements
(not long before valued at R 608
850 and R 250 000 respectively).
However that may be, it appears to be common cause that on 18 June
1990 creditors (save one
to be mentioned below) were paid, whoever
they were and in whatever amounts. (The affidavit of mid 1989 had
shown only one creditor
other than Boland Bank and the Land Bank,
and that was Allied, which was owed R 53 000 on the bond over the
home).
In
her founding affidavit the wife says that upon the sale of the farms
the spouses expected there to be a surplus and that is
how it turned
out when the proceeds were received. In her reply she claims that
the surplus amounted to R 75 418,89.
This she seeks to
establish by reference to a letter from attorney Bouwer in April
1992, setting out total proceeds (from the
sale of what exactly?) as
R 1 682 601,68, the payments to the two farm bondholders and the
expenses incurred in respect of commission
and advertising, leaving
the balance mentioned available for the insolvent. The trustee has
had no opportunity to deal with
this letter and it may be ignored as
possible support for the wife’s case. But it should not be
ignored for the admissions
it contains, concerning what the wife
says happened to the surplus. It was used to buy annuities
(unspecified), to compensate
two sons for the inadequate
renumeration they had received from the insolvent when farming with
him, and to provide for a recently
divorced daughter, who was unable
to maintain herself. No dates or further details are given. It is
most improbable that she
did not know of the insolvent’s
intentions with regard to the few worldly goods that would be left
to him. In any event
she does not claim such ignorance. Her reply
proceeds:
“Die insolvent was omdat hy sy plase verkoop het
en dus sy boerdery gelikwideer het en die opbrengs daarvan aangewend
het
nie in staat om die verbandpaaiemente ten opsigte van die
onroerende eiendom [the home] verder te betaal nie en hy moes
daarvan
ontslae raak” [thus leading on to the sale to her].
Apart
from contradicting her statement in the founding affidavit that she
had been paying the instalments on the home since
1986, the clear
implication is that already by May 1990 the spouses contemplated
that the insolvent would be left with practically
nothing. If there
was a creditor who had not been paid, and provision had not been
made for him, then it seems clear that allowing
the wife to set off
her claims of R 35 000,00 and R 10 488,21 (assuming that she had
such claims) constituted an undue preference
and, in addition, that
the payments to the children are suspect as dispositions without
value, to the detriment of that creditor.
Nor is there any attempt
to explain why part of the surplus of R 75 418,89 was not used to
pay off the bond over the home,
seemingly the obvious destination
of these funds .
There
was such a creditor, the Davis Myles Trust (“the Trust”).
The payment of its claim, which existed well before
1989, was
delayed by litigation for years, but it was the claim upon which the
insolvent’s estate was ultimately sequestrated
on 2 March
1995. The explanation offered in the founding affidavit for the
non-payment of the Trust was the following:
“Op hierdie stadium [late
1989 early 1990] was die insolvent ook in besit van voldoende
sybokke om aan die Davis Myles
Trust te lewer. Lewering kon toe nie
geskied nie
omdat
die insolvent nie geweet het op watter plek die sybokke gelewer moes
word nie
.
Uiteindelik kon die insolvent nie die sybokke lewer nie omdat die
sybokke wat vir daardie doel op Voorspoed by die nuwe eienaar
van
die plaas gelaat is,
nie
meer daar was nie
.
. . .” (Own emphasis).
We are not told what the goats were
worth or what, if anything, was done to recover from the new owner
of Voorspoed. The Trust
had sued the insolvent for the purchase
price of R 79 000, and, according to the reply, the action had been
set down for hearing
on 14 May 1990 (that is just nine days before
the sale of the home to the wife). The matter was postponed because
it might
be settled by an agreement that the insolvent deliver
goats rather than pay money. At the time, so the reply tells us,
the insolvent
had the goats needed, but by the time the anticipated
settlement was concluded in 1992 they were “egter nie meer
beskikbaar
nie”. Nor had the insolvent the money to buy them
in. In argument an attempt was made to wish away the Trust’s
claim by suggesting that because of its failure to take back goats
when tendered by the insolvent it placed itself
in
mora creditoris,
so that when the goats somehow disappeared, the risk of loss, so it
was suggested, fell upon the Trust. Apart from other possible
difficulties with this contention, its fatal defect is that it was
not raised in the founding affidavit. What was said in the
founding
affidavit I have already quoted.
Summons
based on the settlement was issued by the Trust in January 1993.
The claim was for 260 ewes with lambs, alternatively
their value,
being R 45 500. Judgment was later taken for R 53 000 and it was on
this debt that the insolvent’s estate
was eventually
sequestrated in 1995. The insolvent’s subsequent statement
of affairs reflected the R 53 000 as his
only debt, apart from an
unexplained claim of R 50 000 by the wife. Leaving aside the
complexities which might seem to
exist in the present litigation,
the essential dispute is whether the Trust is entitled to have its
claim paid out of the proceeds
of the home preferently to, or
conceivably, concurrently with, the wife. In her reply the wife
says that in May 1990 (when
the home was sold to her) the goats
(then still in existence) were worth considerably more than R
45 000. The “considerably
more” is presumably a
reference to the difference between the R 75 418,89 mentioned before
and
R
45 500. This explanation or justification overlooks two things.
The first is that at the time the Trust’s claim was
not for R
45 500 but for R 79 000 plus costs plus interest. The second is
that in the interim, in terms of the wife’s
own affidavit,
the surplus had simply been handed out to the children or used in
the purchase of
annuities,
so that when the time came to purchase goats the cupboard was bare.
The dissipation of the R 75 418,89
affords a simple basis for allowing the appeal, because the
inevitable conclusion on the
papers is that after it had taken place
and before the transfer of the home, the insolvent’s assets
were all gone, (this
could not be contested by
Mr
van der Walt
, for
the wife), whereas he still faced the claim of the Trust. In
addition, as I have pointed out already, the strong probability
is
that the wife knew all of these things. When taken together with
the unsatisfactory features surrounding the sale which I
have
mentioned, and the insufficiencies of the evidence produced by the
wife, both already mentioned and to be mentioned in
the next
paragraph, I think that the conclusion is inevitable that the
spouses colluded to defraud the Trust.
Not surprisingly, there is not much evidence that the trustee has
produced to contradict positively the history put forward
by the
wife. But the trustee has raised serious suspicions, largely based
on the wife’s version and lack of version.
On the other hand,
I find the combined effect of the affidavits of the two spouses to
be selective, evasive, unpersuasive and
at times contradictory.
Thus the wife annexes tax assessments in her own name for the years
1993 to 1995, informing us that
before that it was not the practice
for wives to render separate returns. But no mention is made of the
husband’s returns
in the preceding years. They may have told
us much about his income, her income, and their respective assets
and liabilities.
Then she tells us that throughout she had her own
cheque account, first at Volkskas, Aberdeen, and after May 1990 at
Nedbank,
George. She produces the Volkskas Bank statements ranging
from April 1988 to 23 May 1990 (which happens to be the date of sale
of the home, and which seems to be the date on which the Volkskas
account was closed). She also annexes some of the cheques
drawn on
this account. The difficulty is that the great bulk of them,
although drawn on an account in her name, are signed by
the
insolvent, not herself. She also annexes numerous post May 1990
cheques drawn on Nedbank, George. All of them are signed
by the
insolvent, not herself. So whose bank accounts were these really?
Nor are we told who was responsible for the credits
or what they
were. Hardly any deposit slips have been produced. We are not
told if the insolvent had his own cheque account.
Nor are we told
whether either spouse had other accounts, such as savings accounts.
What, for instance, was the nature of the
“investment”
transferred from Graaff-Reinet in November 1990? The wife may well
be correct in saying that many past
records have been destroyed, but
it does not seem to me that, despite many warnings by the trustee to
do so, she has made a genuine
attempt to reconstruct a true
picture.
In
the court below van Deventer J inclined to the view that the onus
did not rest on the wife (for reasons that are not clear),
but
concluded, in any event, that “there is no evidence here to
justify an inference, on a balance of probabilities, that
the sale
of the house was a simulated transaction or that the applicant acted
as a nominee or dummy for her husband or that the
sale amounted to a
collusive dealing.” For the reasons given I cannot agree
with this conclusion.
The appeal is upheld with costs.
The order of the court
a
quo
is replaced
with the following:
“The
application is dismissed with costs.”
W
P SCHUTZ
JUDGE
OF APPEAL
CONCUR
:
VAN
HEERDEN DCJ
HEFER JA
NIENABER
JA
MARAIS JA