About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Western Cape High Court, Cape Town
SAFLII
>>
Databases
>>
South Africa: Western Cape High Court, Cape Town
>>
2013
>>
[2013] ZAWCHC 160
|
|
Venter NO and Others v Mjongile (6435/2007, 2192/2008) [2013] ZAWCHC 160 (28 October 2013)
IN THE HIGH COURT OF SOUTH AFRICA
(WESTERN CAPE HIGH
COURT, CAPE TOWN)
Case no: 6435/2007 &
2192/2008
In
the matter between:
VENTER N.O., ANNA FRANCINA
............................................................................
1
st
Plaintiff
NDUNA N.O., RAINOTES BANTUBONKE
.............................................................
2
nd
Plaintiff
KLOPPER N.O., JOHANNES FREDERICK
.............................................................
3
rd
Plaintiff
(in their capacity as the duly appointed joint trustees
of the insolvent deceased estate of Roger Brett Kebble)
STEENKAMP N.O., JURGENS JOHANNES
...........................................................
4
th
Plaintiff
KAJIE N.O., HASSAN
...............................................................................................
5
th
Plaintiff
(in their capacity as the duly appointed joint trustees
of the insolvent estate of the Kebble Buitendag Investment Trust)
and
MJONGILE, SONGEZO BENTON
............................................................................
Defendant
Heard: 22 October 2013
reasons FOR ORDER - DELIVERED 28 OCTOBER 2013
SAVAGE AJ
Introduction
First, second and third plaintiffs are the duly appointed joint
trustees of the insolvent estate of the later Roger Brett Kebble
(“Kebble”), whilst fourth and fifth plaintiffs are the
duly appointed joint trustees of the insolvent estate of the
KebbleBuitendag Investment Trust (“KBIT”).
On 14 October 2009 an order consolidating case number 6435/2007 and
2192/2008 was granted by this Court, both actions being founded
on
s26(1)(b) of the Insolvency Act, 24 of 1936 (“the Act”)
which provides that:
‘
(1) Every disposition of property not
made for value may be set aside by the court if such disposition was
made by an insolvent-
…
(b) within two years of the
sequestration of his estate, and the person claiming under or
benefited by the disposition is unable
to prove that, immediately
after the disposition was made, the assets of the insolvent exceeded
his liabilities.
Provided that if it is proved that the liabilities of the
insolvent at any time after the making of the disposition exceeded
his
assets by less than the value of the property disposed of, it may
be set aside only to the extent of such excess.’
Plaintiffs seek an order in terms of s26(1)(b) of the Act setting
aside dispositions made by Kebble and the KBIT to defendant.
In
order to rely on s26(1)(b), plaintiffs must prove a disposition by
the insolvent of property to defendant for no value less
than two
years before the sequestration of the insolvent’s estate.It is
incumbent upon defendant to show that immediately
after the
disposition of the property, the insolvent’s assets exceeded
liabilities, failing which, the dispositions are
liable to be set
aside.Once the provisions of s26(1)(b) have been met, the Court has
a limited discretion not to proceed to set
the dispositions aside
and direct the defendant to make payment of the amounts of the
dispositions
1
with interest from date of judgment and costs.
2
The matter proceeded in default, notice of set down having been sent
to defendant’s attorneys of record on 26 August 2013.
In
addition, plaintiffs served consolidated notices on defendant’s
correspondent attorneys on 10 October 2013, the index
to the trial
bundle on defendant’s attorneys on 14 October 2013 and no
response was received to a letter sent by plaintiffs’
attorneys to defendant’s attorneys on 14 October 2013
enquiring as to whether defendant intended to supplement the trial
bundle. It was apparentfrom these facts that defendant was duly
informed of the date of set down and yet failed to appear on
this
date.The matter accordingly proceeded in his absence.
Kebble dispositions - Case No: 6435/2007
From 15 November 2004 until 17 February 2005 payments in the amount
of R214 593,40were made by Kebbleto defendant, with
one of
these payments made to a third party on defendant’s request.
On 27 September 2005 Kebble passed away. His estate
was
provisionally sequestrated on 25 April 2006, less than two years
after the payments were made to the defendant, with an order
of
final sequestration granted on 13 June 2006. On 11 September 2006
first, second and third plaintiffs were appointed joint
final
trustees of Kebble’s insolvent estate.
Third plaintiff, Mr Johannes Frederick Klopper N.O., testified that
the dispositions were made by Kebble to defendant for no
value less
than two years before the sequestration of the insolvent’s
estate.
In response to plaintiffs’ claim to set aside the dispositions
made,defendant pleaded that the Kebble payments were made
to him “
by
Kebble, alternatively JCI Limited alternatively companies which were
at the time related
(sic)
and/or subsidiaries of JCI Limited
(“the JCI Group”) through Kebble to the defendant for
value in part settlement
of salary and commission due and payable to
the defendant by Kebble, alternatively JCI Limited and/or the JCI
Group through Kebble
they being jointly and severally liable to the
defendant for same.
In addition, defendant had raised a
counterclaim against plaintiffs for alleged outstanding commission
and salaries in the amount
of R4 598 852,45 plus interest and costs.
Given that the matter proceeded in default no evidence was led in
respect of this counterclaim,
nor was evidence led in support of
defendant’s defence to plaintiff’s claim.
KebbleBuitendag Investment Trust dispositions - Case No: 2192/2008
From 26 May 2005 until 15 September 2005 payments in the amount of
R142 124.80 were made by the KebbleBuitendag Investment
Trust
(‘KBIT’) to the defendant. On 11 May 2007 KBIT’s
estate was provisionally sequestrated, less than two
years after the
payments were made to the defendant, and on 11 June 2007 KBIT’s
estate is finally sequestrated with the
third and fourth
plaintiffsappointed as joint final trustees of KBIT’s
insolvent estate on 21 August 2007.
Fourth plaintiff, Mr Jurgens Johannes Steenkamp N.O., testified that
the dispositions were made by the KBIT to defendant for
no value
less than two years before the sequestration of the insolvent’s
estate.
The defendant pleaded that the KBIT payments were made to him “
by
Kebble alternatively by KBIT alternatively companies which were at
the time related
(sic)
and/or subsidiaries of KBIT through
Kebble to the defendant for value in part settlement of salary and
commission due and payable
to the defendant by Kebble alternatively
by KBIT through Kebble they being jointly and severally liable to
the defendant for
the same.
No evidence was led in support of
such defence given that the matter proceeded in default.
Evaluation
Having considered the pleadings and the evidence led by plaintiffs,
I am satisfied that plaintiffs have discharged the onus to
prove
that the dispositionsmade by Kebble and KBIT respectively were made
within two years of their respective sequestrations;
that these
dispositions were not made for value and were made in circumstances
in which Kebble and KBIT were insolvent. It follows
accordinglythat
the dispositions must be set aside in accordance with the provisions
of s26(1)(b) of the Act.
Given the absence of any evidence to support the counterclaim, such
claim has not been proved and falls to be dismissed with
costs.
Order
In the result, judgment is granted in favour of plaintiffs against
defendant as follows:
In Case No. 6435/2007
1. The dispositions of the following amounts are set aside in terms
of the provisions of Section 26(1)(b) of the Insolvency Act:
1.1. 15 November 2004 - R50 000,00
1.2. 16 November 2004 - R46 493,40
1.3. 21 December 2004 - R40 000,00
1.4. 17 February 2005 - R78 100,00
2. Payment is to be made by the defendant of the sums of:
2.1. R50 000.00;
2.2. R46 493.40;
2.3. R40 000.00;
2.4. R78 100.00.
3. Interest on the aforesaid amounts calculated at the interest rate
of 15,5% per annum from date of judgment, to date of payment;
4. Costs of suit.
Case No: 2192/2008
1. Dispositions in the total amount of R142 142,80 are set aside in
terms of
Section 26(1)(b)
of the
Insolvency Act
;
2. Payment is to be made by the defendant of the sums of R142 124,80;
3. Interest on the sum of R142 124,80 at the rate of 15,5% per annum
from date of judgment to the date of final payment;
4. Costs of suit.
______________________
K M SAVAGE
ACTING JUDGE OF THE HIGH COURT
Appearances
:
Plaintiffs:
Mr J W Steyn instructed by Brooks & Brand
Defendant:
No appearance
1
Visser
en ‘n ander v Rosseau en andere NNO
1990 (1) SA 129
(A) at
156-9
2
Janse
van Rensburg and others NNO v Steyn
2012 (3) SA 72
(SCA)