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2001
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[2001] ZACC 14
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Lane and Fey NNO v Dabelstein (CCT 60/00) [2001] ZACC 14; 2001 (2) SA 1187 (CC); 2001 (4) BCLR 312 (6 March 2001)
CONSTITUTIONAL COURT OF SOUTH AFRICA
Case CCT
60/00
MICHAEL LANE N.O. First Applicant
EILEEN FEY N.O. Second
Applicant
versus
HEINO DABELSTEIN AND 12
OTHERS Respondents
Decided on : 6 March 2001
JUDGMENT
GOLDSTONE and KRIEGLER JJ:
[1] This is an
application for special leave to appeal to this Court against a judgment and
order of the Supreme Court of Appeal
(SCA) in a case between two opposing sets
of foreign creditors in the insolvent estate of a certain Mr Jürgen
Harksen. The
effect of the order was to set aside an attachment of South
African assets of the respondents in order to found and confirm the jurisdiction
of the Cape Provincial Division of the High
Court.
[1]
The attachment order had
been obtained by the other set of creditors suing in the name of the applicants,
who were the trustees in
the insolvent estate. They wished to bring an action
to set aside as voidable dispositions two payments made to the respondents
by
the insolvent pursuant to orders of court.
[2]
[ The definition of
“disposition” in
section 2
of the
Insolvency Act, 24 of 1936
,
excludes a “disposition in compliance with an order of . . . court”.
In
Sackstein en Venter NNO v
Greyling
[2]
it was held that the
exclusion does not apply to orders fraudulently obtained or obtained pursuant to
agreements concluded in order
to defeat the claims of other creditors. In the
High Court, Van Zyl J followed
Sackstein
and granted the attachment on
the basis that a prima facie case of fraud had been established. The SCA upheld
the appeal on the
basis that the factual averments contained in the affidavits
of the applicants did not establish a prima facie case of
fraud.
[3] In seeking leave to appeal to this
Court the applicants allege that the case raises the following constitutional
issues:
(a) The order of the SCA violated the applicant’s right of access to the
courts in violation of section 34 of the Constitution;
(b) The fact that peregrini require an attachment to found and confirm
jurisdiction even though a ground of jurisdiction exists,
whereas incolae do
not, constitutes unfair discrimination against peregrini in violation of section
9 of the Constitution; and
(c) The SCA failed to consider crucially important evidence contained in the
applicants’ affidavits and thereby violated the
applicants’
“right to a fair trial and to fair justice” (presumably also under
section 34 of the Constitution).
The respondents
oppose the application and seek the costs thereof.
[4] In our opinion
the application should not be granted. There is no substance in the ground
raised in 3(c). Even if the SCA had
erred in its assessment of the facts, that
would not constitute the denial of the constitutional right contended for. The
Constitution
does not and could hardly ensure that litigants are protected
against wrong decisions. On the assumption that section 34 of the
Constitution
does indeed embrace that right, it would be the fairness and not the correctness
of the court proceedings to which litigants
would be entitled.
[5] The
grounds raised in 3(a) and (b) are constitutional issues. However, they were
not raised in either the High Court or the
SCA. The applicants could have
brought their application for an attachment and, in the alternative, claimed an
order declaring the
common law rule requiring such attachment to be
unconstitutional. This would have alerted both the High Court and the SCA, as
well
as the respondents, to the fact that this was a basis being relied upon by
the applicants. More importantly it would have enabled
those courts to deal
with the constitutional questions. The rules relating to attachment to found or
confirm jurisdiction in cases
against peregrini are rooted in the common law.
Where the development of the common law is the issue, the views and approach of
the ordinary courts, and particularly the SCA, are of particular significance
and value. Save in special circumstances, this Court
should not consider this
kind of matter as a court of first
instance.
[3]
No relevant factors have
been raised by the applicants that would constitute such special
circumstances.
[6] On the contrary, it is contended on behalf of the
applicants that “[t]he issues are of pivotal significance and importance
to trade and commerce in South Africa , and to this country’s external
relationship with foreign business entities.”
Circumstances of such
weighty legal import and bearing such wide-ranging commercial implications ought
not ordinarily to be considered
by this Court unless and until they have been
thoroughly canvassed in the courts that are more directly concerned with such
matters.
It is in any event undesirable — and may well work injustice on
the other side — to allow such a fundamental change
of front at this late
stage of the proceedings.
[7] We are therefore of the opinion that the
application should be dismissed and that the costs of the application should be
paid
by the applicants.
[8] The following order is made:
The application is dismissed with costs.
Chaskalson
P, Ackermann J, Madala J, Mokgoro J, Ngcobo J, Sachs J, Yacoob J, Madlanga AJ
and Somyalo AJ concur in the judgment of
Goldstone and Kriegler JJ.
[1]
The judgment of the Cape High
Court ordering the attachment is reported as
Lane and Another v Dabelstein
and Others (Lane and Another NNO Intervening)
1999 (3) SA 150
(C).
[2]
1990 (2) SA 323
(O).
[3]
See
Dormehl v Minister of
Justice and Others
2000 (2) SA 987
(CC),
2000 (5) BCLR 471
(CC) at para 5,
Transvaal Agricultural Union v Minister of Land Affairs and Another
1997
(2) 621 (CC),
1996 (12) BCLR 1573
(CC) at para 18,
S v Bequinot
[1996] ZACC 21
;
1997 (2)
SA 887
(CC),
1996 (12) BCLR 1588
(CC) at para 15.