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[2015] ZAWCHC 26
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Absa Bank Limited v Collier (A 314/2014) [2015] ZAWCHC 26; 2015 (4) SA 364 (WCC) (12 March 2015)
IN
THE HIGH COURT OF SOUTH AFRICA
(WESTERN
CAPE DIVISION, CAPE TOWN)
Case
No: A 314/2014
DATE:
12 MARCH 2015
REPORTABLE
In
the matter between:
ABSA
BANK
LIMITED
...........................................................................................................
Appellant
And
EBRAHIM
BRIAN
COLLIER
............................................................................................
Respondent
Date
of hearing: 30 January 2015
JUDGMENT
DELIVERED 12 MARCH 2015
SAVAGE
J:
Introduction
[1]
This is an appeal against the refusal of
Blignault J to grant to the appellant, Absa Bank Limited, as
creditor, a final order of
sequestration against the estate of the
respondent, Mr Ebrahim Brian Collier on the basis that the appellant
had failed to establish
an act of insolvency within the meaning of s
8 (b) of the Insolvency Act 24 of 1936 (as amended).
[2]
The appellant launched the application for
sequestration in the court
a quo
as creditor of the respondent for an amount in excess of R800 000,00,
including a judgment debt of R169 342,81. The sheriff rendered
a
return of
nulla bona
following an attempt to serve a writ of execution against the
respondent’s movable property to satisfy the judgment debt.
Recorded in the sheriff’s return was that the respondent had
indicated on 27 November 2012 at 08:55 that ‘
it
was impossible to pay the amount claimed or any sum
’
and that:
‘
....(e)
xcept
property exempted by law in terms of Section 39 of Act 59 of 1959, as
amended, no property or assets could, after enquiry,
be pointed out
to satisfy this writ. Despite a diligent search and enquiry I could
not find sufficient disposable property to satisfy
this writ. I
therefore make a return of NULLA BONA. The debtor was requested to
declare whether HE has any immovable property which
is executable, on
which the following answer has been furnished: ‘I DO NOT OWN
MOVABLE OR IMMOVABLE PROPERTY
’.
[3]
Mr Ashraf Rocker, a manager of the
appellant, deposed to the appellant’s founding affidavit in the
sequestration application,
relying on the sheriff’s
nulla
bona
return as
prima
facie
proof of the commission of an act
of insolvency by the respondent under s 8(b) of the Act. In this
affidavit Mr Rocker stated that
the respondent is ‘
permanently
domiciled
’ at 19 Marsden Road,
Walmer Estate, Woodstock, Cape Town, Western Cape and is the
co-owner, with his wife to whom he is married
according to Muslim
rites, of immovable property described as erf 2778 Sandbaai, Western
Cape over which a covering mortgage bond
in the amount of R858 000,00
has been registered in favour of the appellant as security for the
obligation of the respondent.
[4]
The respondent opposed the sequestration
application, admitted the judgment debt but disputed the appellant’s
locus standi
to bring the application. He denied having informed the sheriff that
it was impossible for him to pay the amount due and stated
that he
had indicated to the sheriff that with Perl Zips CC, a close
corporation of which he is sole member, he holds a damages
claim
against the appellant for a sum exceeding R50 million arising from a
negligent misstatement made by the appellant that Perl
Zips CC was in
liquidation and against which damages claim the appellant’s
claims against him should be set off. The respondent
stated that he
currently resides at both 19 Marsden Road, Walmer Estate and at erf
2778 Sandbaai and that–
‘…
It
should be noted….that I at no stage advised the sheriff that I
do not own any movable and/or immovable property, I advised
him that
I live temporary at No. 19 Marden Road, Walmer Estate, Woodstock for
work purposes as all of my business are in the Cape
Town area, I
however retreat to my own home namely Sun Breeze, Hermanus, commonly
known as Erf 2778 Sandbaai, when I am not busy
with my businesses,
weekends and holidays
.’
[5]
Filed together with the appellant’s
replying papers was an affidavit deposed to by Mr Johan Erasmus, the
sheriff who attended
to the service of the warrant of execution, in
which he confirmed the veracity of the contents of the return and
stated that:
‘
I
confirm that the nulla bona return followed upon the respondent's
inability to make payment of the amount claimed and his failure
to
point out any movable assets to satisfy a judgment or any portion
thereof as I requested him to do.
’
[6]
On
2 September 2013 a provisional order of sequestration was granted
against the respondent. On the return date of that order the
appellant contended that it had discharged the onus of proving an act
of insolvency under s 8(b)
prima
facie
by way of the sheriff’s return and that the onus thereafter
shifted to the respondent to impeach the return on ‘
the
clearest and most satisfactory evidence
’.
[1]
The respondent persisted that the sheriff’s return was
factually incorrect as he had advised the sheriff of his ownership
of
the immovable property and that the return was not congruent with the
true facts known to the appellant that the respondent
owned the
property against which a covering mortgage bond was registered in
favour of the appellant.
[7]
The court
a
quo
refused a final order of
sequestration against the respondent on the basis that the appellant
had failed to establish an act of
insolvency on the part of the
respondent within the meaning of s 8(b). The court concluded that the
appellant as mortgagee was
able to dispose of the property and that
the respondent’s undivided half share did not render it immune
from execution.
Evaluation
[8]
Section 8 of the Act provides that:
‘
8.
A debtor commits an act of insolvency –
…
(b)
if a court has given judgment against him and he fails, upon the
demand of the officer whose duty it is to execute that judgment,
to
satisfy it or to indicate to that officer disposable property
sufficient to satisfy it, or if it appears from the return made
by
that officer that he has not found sufficient disposable property to
satisfy the judgment;…
’
[9]
This
provision refers to two acts of insolvency. The first is committed
when the debtor fails to satisfy the judgment or to indicate
sufficient disposable property to satisfy it; and the second when the
sheriff fails to find sufficient property to satisfy the
judgment.
[2]
‘
Disposable
property’
[10]
With no dispute between the parties that
the appellant is the holder of a first mortgage bond over the
Sandbaai property co-owned
by the respondent, the appeal turns, in
the first instance, on whether the respondent’s immovable
property constitutes ‘
disposable
property
’ within the meaning of s
8(b) or not.
[11]
The
court
a
quo
relying
on
Western
Bank
Ltd v Els,
[3]
in which reference is made
inter
alia
to the Cape full bench decision of
Van
der Poel v Langerman,
[4]
concluded that given that the appellant is first mortgagee of the
property, regardless of the fact that it is an undivided half
share
and had not been declared specially executable under rule 46(a)(ii),
the immovable property amounted to ‘
disposable
property
’
under s 8(b).
[12]
Our
courts have consistently found that ‘
disposable
property
’
for purposes of s 8(b) may include immovable property, irrespective
of whether the writ is directed against movables only.
[5]
Divergent views have however arisen regarding whether bonded
immovable property in respect of which the applicant is the first
mortgagee is disposable under s 8(b).
[13]
In
Van
der Poel v Langerman
[6]
immovable property in respect of which the judgment creditor held a
first mortgage bond was found to constitute ‘
sufficient
disposable property
’
within the meaning of s 4 of Ordinance 64 of 1843 and that:
‘…
the
word “property” included real as well as movable property
– (vide Burton’s Insolvent Law, p. 44); that
as the
affidavit stated, and the plaintiff did not deny the allegation, that
the property was worth upwards of £2,000, the
defendant had
shown he was possessed of sufficient property to satisfy the
plaintiff's judgment; and that as the plaintiff held
the first
mortgage, not only was this property disposable for the satisfaction
of that judgment, but that it could be disposed
of by the plaintiff
for that purpose, by attachment and judicial sale, as easily, and in
as short a time, as under a sequestration
of the defendant's estate.
That
in this case it was unnecessary for the defendant to have pointed out
the hypothecated real property to the Sheriff's officer,
seeing that
the plaintiff's own bond informed him of it; and that he ought, after
the return made on the writ against the defendant’s
goods and
chattels, to have sued out a writ for attaching the immovable
property
…’
[7]
[14]
In
De
Waard v Andrew & Thienhaus Ltd,
[8]
in which immovable property was bonded to a third person, Innes CJ
stated that -
‘
And
I gather from the case of Dell v McHattie
[9]
that
the principles which underlay Van der Poel v Langerman were approved
by the late High Court – though I may point out
that the
circumstances in the two cases differed. Still, I think the High
Court intended to affirm the principle of Van der Poel
v Langerman,
and we ought not now to lay down a different rule. We must assume
that the pointing out of land would be a sufficient
pointing out of
disposable property within the meaning of the section. But the land
must be freely disposable. And land mortgaged
to a third person would
not fall within that category, because the consent of the mortgagee
would have to be obtained.
’
[15]
The
decision in
Van
der Poel v Langerman
was followed in
Marsh
v Makein,
[10]
in which the judgment creditor had obtained provisional sentence as
first mortgagee on a mortgage bond and the property had been
declared
executable. Noting that in
Van
der Poel
’s
case the applicant as first mortgagee ‘
had
obtained an order declaring the property executable
’
[11]
,
as was the case in
Marsh
v Makein
,
Innes CJ distinguished the facts in
De
Waard
finding
that the immovable property was bonded to a third person whose
consent had not been obtained, and that the return of
nulla
bona
was therefore a correct return and that an act of insolvency had been
committed.
[12]
[16]
Solomon J in a separate concurring judgment
stated that:
‘
I
think we ought to consider ourselves bound by the cases of Van der
Poel v Langerman and Marsh v Makein. In those cases the extent
to
which the court went was this, that where a first mortgagee of land
had obtained judgment, and the property had been declared
executable,
if it appeared that the value of the property was sufficient to
satisfy the exigency of the writ, no order of sequestration
could be
granted. All the cases on this point which have been decided in the
Cape court were cases in which the first mortgagee
was the creditor,
and where the property had been declared executable at his suit…
…
But
the case is very different where the landed property which has been
pointed out is mortgaged property. For we must take disposable
property to mean property which can be realised at once; because the
creditor is entitled to immediate payment of his debt, and,
consequently, where the property is mortgaged, and where the consent
of the mortgagee has not been obtained to the sale of the
property,
in my opinion the property is not disposable within the meaning of
sub-sec (b) of sec. 8 of the Insolvency Law.’
[13]
[17]
Bristowe J, in his concurring judgment, put
it this way:
‘
Mortgaged
property is not property which is immediately disposable. It can only
be sold after certain processes have taken place,
or at all events
after certain consents have been obtained. Whether it would be
disposable property if, when the insolvent pointed
it out, he also
handed a consent or a power of attorney from the mortgagee to sell,
is another question; but, at all events, where
that has not taken
place I do not think mortgaged property is “disposable
property” within the meaning of section.
That being so, an act
of insolvency has been committed.
’
[14]
[18]
In
Fourie
v Bezuidenhout
[15]
it was found that where the creditor is not the mortgagee, mortgaged
property is not ‘
disposable
property
’
and the sheriff is not required to mention it in his return.
[16]
In
Matthiessen
v Glas,
[17]
with
reference to
De
Waard
and
Fourie
v
Bezuidenhout,
it was noted that despite the debtor being the owner of various
immovable properties –
‘…
the
decisive point is that property which is bonded is not disposable
property. This means that the debtor, the owner of the property,
has
not got the free right to dispose of it, because the bondholder can
control its disposal, so that he has to get the consent
of the
bondholder before he can dispose of it; therefore, it is not
disposable property
…’.
[19]
Broome
JP in
Tewari
v Secura Investment,
[18]
a
Natal full bench decision, relying on
De
Waard
and
Matthiessen
v Glas
came to the same conclusion that bonded immovable properties did not
constitute disposable property ‘
because
they were mortgaged and so not freely
disposable’.
[20]
In
Van
der Poel
and
Marsh
v Makein
the creditor was the first mortgagee in respect of immovable property
held by the debtor, while in
De
Waard
,
Fourie
v Bezuidenhout
and
Matthiessen
v Glas
the creditor was not the first mortgagee. It is this distinction upon
which the court in
Western
Bank v Els
[19]
relied,
with reference to
Van
der Poel
and
De
Waard,
finding
that –
‘…
only
where the mortgagee is a third party will the bonded property be
excluded from the category of disposable property in terms
of
sec 8
(b) of the
Insolvency Act
&rsquo
;.
[21]
In
Barclays
National Bank v Badenhorst,
[20]
without reference to either
Van
der Poel
or
De
Waard
,
immovable property was found not to constitute ‘
disposable
property
’
for purposes of
s 8(b)
when subject to a first mortgage bond given
that an order declaring the property to be specially executable was
required before
the property could be attached and sold in execution.
[22]
A
number of writers have reflected the legal position as that set out
in
Van
der Poel
and
De
Waard
,
to which reference is made in
Western
Bank
.
In 1937 Davidson,
[21]
referring to
Johnson
v Papas,
[22]
stated
that disposable property meant property freely disposable and not
mortgaged to a third person
.
This
same view was expressed by Nathan in 1936.
[23]
Meskin
[24]
and Mars note, with
reference to
Western
Bank
that as an exception mortgaged property will be regarded as
disposable if the applicant is the first mortgagee,
noting
that the case of
Barclays
National Bank
was
decided differently.
[23]
The
purpose of the
Insolvency Act
is
stated in general terms as being ‘
to
consolidate and amend the law relating to insolvent persons and to
their estates’
with
s 8
providing a
numerus
clausus
of acts of insolvency committed by a debtor, of which
s 8(b)
is one.
The purpose of
s 8(b)
is to determine whether the debtor holds
disposable property sufficient to satisfy a debt.
The
Oxford
English Dictionary defines ‘
disposable
’
as ‘
readily
available for…use as required
’.
[24]
Rule 46(1)
provides that:
‘
(a)
No writ of execution against the immovable property of a judgment
debtor shall issue until –
…
(ii)
such immovable property shall have been declared to be specially
executable by the court …: Provided that, where the
property
sought to be attached is the primary residence of the judgment
debtor, no writ shall issue unless the court, having considered
all
the relevant circumstances, orders execution against such property.’
[25]
In terms of
rule 46(5)
, immovable property
subject to a claim preferent to that of the execution creditor shall
not be sold in execution unless written
notice of the intended sale
is served by registered post upon the preferent creditor and the
local authority concerned, if the
property is rateable, ‘
calling
upon them to stipulate within 10 days of the date to be stated a
reasonable reserve price or to agree in writing to sale
without
reserve
…’.
[26]
The
court in
Gerber
v Stolze and others
[25]
examined the purpose of seeking the issue of a writ against immovable
property, stating that:
‘
The
only reason for applying to Court at all is to have a short-cut in
the one case where a money judgment has been obtained and
the money
judgment is secured to the plaintiff by specially hypothecated
immovable property; then, in the normal course, the court
is asked,
in advance, to dispense with the circumlocution of having to take
execution against the movable property first and only
on that
property failing to realise the money sum, then to have recourse
against the immovable property. When an order is granted
declaring
executable the property specially hypothecated, the order permits the
grantee, the creditor, to take his execution straight
away against
the immovable property.
’
[27]
A
judgment creditor may under
rule 45(1)
sue out of the office of the
registrar a writ against movable property. A writ directed against
movable property requires the sheriff
in terms of
rule 45(3)
to
demand of the debtor in ‘
satisfaction
of the writ
…
so
much movable and disposable property be pointed out as he may deem
sufficient to satisfy the said writ
’,
failing which the sheriff is to search for such property. Our courts
have consistently found ‘
disposable
property
’
for purposes of
s 8(b)
to include immovable property, irrespective of
whether the writ is directed against movables only.
[26]
It is immaterial that if the property found by the sheriff is
unbonded immovable property, an order of special execution against
such property under the provisions of
rule 46(1)
remains a
requirement regardless of the identity of either the judgment
creditor or the debtor, whether the property is a primary
residence
or not, or is owned by an individual or a company.
[28]
If immovable property by its nature were to
fall outside the definition of ‘
disposable
property
’ for purposes of
s 8(b)
unless an order of special execution had been granted in terms of
rule 46(1)
declaring the property executable and therefore
‘
disposable
’,
the search for ‘
disposable
property
’ by the sheriff
executing a writ against movables in terms of
s 8(b)
would
practically be limited to a search for movable property. The relative
ease with which a writ against movables is capable
of being obtained
supports a conclusion that the process of execution is aimed at
encouraging a judgment creditor to execute against
movables first and
in the event that insufficient movables are found to be available to
satisfy the debt, then only against immovable
property. Were it to be
required under
s 8(b)
that for immovable property found to be
considered ‘
disposable
’
an order of special execution must already have been granted against
the property, this could encourage execution against
immovable
property even before a writ had been executed against movables.
[29]
Furthermore, if immovable property was not
to be disposable without an order of special execution having been
granted, a
nulla bona
return would be capable of being rendered under
s 8(b)
even when the
provisions of
rule 46(1)
would not reasonably have posed an
impediment to the disposal of such immovable property, such as when
the property was not the
primary residence of the debtor.
[30]
A
judgment creditor who is first mortgagee in respect of the debtor’s
immovable property is placed in a position materially
distinct from
that of other judgment creditors and subsequent mortgagees insofar as
the first mortgagee as preferent creditor may
seek the issue of a
writ of execution against the immovable property in order to satisfy
a judgment debt without notice such as
that required by
rule 46(5).
Execution against the immovable property may therefore ensue at the
instance of the first mortgagee, an advantage not open to other
creditors in the absence of the consent of the first mortgagee.
[27]
For this reason the position of the first mortgagee is materially
different from that of all other judgment creditors or subsequent
mortgagees.
[31]
Mr
Vivier
contended for the appellant that the court
a
quo
’s reliance on
Van
der Poel
was misplaced given that in
that matter no order of special execution had been granted. It is so
that Innes CJ in
De Waard
incorrectly stated that in
Van der Poel
an order of special execution had been
granted against the debtor’s immovable property when it had
not. However, the judge
distinguished the facts in
De
Waard
from
Van
der Poel
and based his conclusion that
the immovable property was not disposable on the fact that it was
bonded to a third person whose
consent had not been obtained and that
a
nulla bona
was therefore the correct return. It follows that the distinguishing
feature between
De Waard
and
Van der Poel
was that in the former matter a third party mortgagee’s consent
had not been obtained and in the latter no consent was required
given
that the judgment creditor was the first mortgagee.
[32]
In
interpreting what constitutes ‘
disposable
property
’,
the
purpose and context of the provision are important guides
.
[28]
While
a definition is not to be given that ‘…
leads
to impractical, unbusinesslike or oppressive consequences or that
will stultify the broader operation of the legislation or
contract
under consideration’:
[29]
‘…
Judges
must be alert to, and guard against, the temptation to substitute
what they regard as reasonable, sensible or businesslike
for the
words actually used. To do so in regard to a statute or statutory
instrument is to cross the divide between interpretation
and
legislation...The ‘inevitable point of departure is the
language of the provision itself’, read in context and
having
regard to the purpose of the provision and the background to the
preparation and production of the document’.
[30]
[33]
Our
law has long recognised a distinction between the rights of a first
mortgagee and those of a subsequent mortgagee.
[31]
To find no distinction between property in respect of which the
judgment creditor is first mortgagee and that in which the judgment
creditor is a subsequent mortgagee and that all mortgaged property is
not disposable within the meaning of
s 8(b)
, would amount to an
interpretation that is impractical, unbusinesslike and is likely to
stultify the broader operation of the legislation.
As much as the
fact that an asset is subject to a mortgage does not immunise it from
execution at the instance of an unsecured
creditor, execution by a
subsequent mortgagee may proceed subject to there being a yield to
the preferent claim of the prior mortgagee.
What permits a conclusion
that immovable property in respect of which a preferent creditor may
obtain a writ and execute is ‘
disposable
’
is that there exists no restriction on such execution, save for that
the requirements of
rule 46(1)
having been met, and no consent of
other mortgagees or judgment creditors required in order to proceed
against the property.
[34]
In the circumstances of the current
matter, the immovable property held by the judgment debtor is
therefore disposable at the instance
of the judgment creditor, being
the first mortgagee, fo
r purposes of
s 8(b)
regardless of the fact that the property had not been declared
specially executable. It follows that the decision in
Van
der Poel
is correct and that it is
binding upon this Court.
[35]
There
can be no issue taken with the court
a
quo
’s
conclusion that a writ of execution is capable of being issued
against an undivided half share in immovable property. An
undivided
half share may constitute disposable property within the meaning of
s
8(b)
[32]
and the court
a
quo’s
conclusion in this regard was correct. There was no suggestion in
this matter that the immovable property of the respondent, if
found
to constitute ‘
disposable
property
’
within the meaning of
s 8(b)
, would be sufficient to meet the
respondent’s indebtedness to the appellant. It follows that the
respondent holds ‘
disposable
property sufficient to satisfy’
his
indebtedness to the appellant. The appellant did not show there have
been committed an act of insolvency within the meaning
of the
provision and the court
a
quo
was correct in discharging the provisional order of sequestration
made against the respondent.
Sheriff’s
return
[36]
While the court
a
quo
made no findings with regards to
the veracity of the sheriff’s return, the appellant persisted
on appeal that the return
evidenced an act of insolvency under
s
8(b).
A sheriff’s return is
prima
facie
proof of its contents by virtue
of
s 43
of the
Superior Courts Act 10 of 2013
which provides that:
‘…
(2)
The return of the sheriff or deputy
sheriff of what has been done upon any process of court provides,
shall be prima facie evidence
of the matters stated therein
’.
[37]
Prima
facie
evidence
calls for an answer and places an evidential burden on the
respondent. It follows that where a respondent seeks to impeach
a
return of the sheriff this must be done on ‘
the
clearest and most satisfactory evidence
’.
[33]
It is not open to a respondent to impeach a return on flimsy grounds
or when there exists no reasonable basis on which to do so.
In
Sussman
& Co (Pty) Ltd v Schwarzer
[34]
it
was stated that:
‘…
If
the respondent then wishes to impeach those facts then the onus
shifts to him to show by clear evidence that although the return
shows that the requirements of
sec. 8(b)
have been complied with they
were in fact not complied with and that the return is not a proper
return. Where, however, the return
itself does not show that the
requirements of the sub-section have been complied with, then the
onus is not shifted and it rests
on applicant to show that in fact
the requirements have been complied with and that the return is in
fact a nulla bona return.’
[35]
[38]
In disputing the veracity of the sheriff’s
return, the respondent indicated that he had informed the sheriff of
his ownership
of the immovable property at Sandbaai. The sheriff in
his affidavit both denied that the return of service was wrong and
the respondent’s
allegations made in his opposing affidavit.
However, the sheriff’s statement under oath that the
nulla
bona
return followed the respondent's
inability to pay and his failure to point out any movable assets to
satisfy the debt when requested
does not accord with the return which
attributes an express statement regarding both movable and immovable
property to the respondent.
This lack of precision on the part of the
sheriff, when provided with an opportunity to clarify, does not aid
the appellant in
that it fails with the exactitude required to
confirm the contents of the return insofar as the statement is made
that only movable
assets were unable to be pointed out by the
respondent.
[39]
Motion
proceedings concern the resolution of legal issues based on common
cause facts and cannot be used to resolve factual issues
because they
are not designed to determine probabilities.
[36]
It is trite that in terms of the
Plascon-Evans
[37]
rule where in motion proceedings disputes of fact arise on the
affidavits, a final order can be granted only if the facts averred
in
the applicant’s affidavits, which have been admitted by the
respondent, together with the facts alleged by the latter,
justify
such order. This is so unless the respondent’s version consists
of bald or uncreditworthy denials, raises fictitious
disputes of
fact, is palpably implausible, far-fetched or so clearly untenable
that the court is justified in rejecting them merely
on the papers.
Faced
with the dispute of fact regarding the veracity of the sheriff’s
return and without the matter having been referred
to oral evidence,
the court
a
quo
was obliged to resolve the dispute on the basis of
Plascon-Evans
against the applicant. This was so given that the respondent’s
version is not untenable,
palpably
implausible or far-fetched
.
[40]
In
Ngqumba
& 'n Ander
v
Staatspresident
& Andere
[38]
and
National
Director of Public Prosecutions
v
Zuma
[39]
it was made clear
that
Plascon-Evans
rule
does not operate in reverse against a respondent even where the onus
rests upon the respondent. Rogers AJ (as he was then)
put it this way
in
Morgenster
1711 v De Kock NO
[40]
‘
The
respondents bear the burden of proving possession of the requisite
character and duration. However, and because the applicant
chose to
institute the proceedings on motion, any disputes of fact relevant to
that question must be resolved in favour of the
respondents unless
the assertion in question is so untenable or far-fetched that it can
be dismissed on the papers.
[41]
I note in this regard that neither side sought a referral of the
matter to oral evidence despite my having drawn to counsel's
attention the obvious dangers for each side in having the question
decided on paper without the benefits of trial proceedings (including
the right to subpoena witnesses who might have been unwilling to
provide affidavits, the cross-examination of witnesses, discovery
and
the like)
.
[41]
An
applicant who presses for a decision on the papers in the face of a
factual dispute by necessary implication consents to the
matter being
decided on the basis of the rule in
Plascon-Evans
.
The reason for this is not because the onus is on the applicant but
because the applicant is
dominus
litis
and must be taken to know that a court cannot decide factual disputes
on probabilities or on onus in opposed motion proceedings.
[42]
A
respondent who bears the onus is not
pro
tanto
regarded as applicant for purposes of the
rule
in
Plascon-Evans
,
which does
not
work in reverse against the respondent, regardless of the incidence
of the onus
.
[43]
[42]
It follows for these reasons that the
dispute with regards to the sheriff’s return fell to be
determined on the application
of the rule in
Plascon-Evans
in favour of the respondent.
Order
[43]
In the result, I propose an order in the
following terms:
1.
The appeal is dismissed with costs.
K M SAVAGE
Judge of the High
Court
I
agree and it is so ordered.
A H VELDHUIZEN
Judge
of the High Court
I
agree.
P A L GAMBLE
Judge
of the High Court
Appearances
:
Appellant:
Mr P de B Vivier
Instructed
by Sandenbergh Nel Haggard
Respondent:
Mr W Fisher
Instructed
by N Allen Attorneys
[1]
Deputy-Sheriff
v Goldberg
1905 TS 680
at 684 referred to in
Sussman
& Co (Pty) Ltd v Schwarzer
1960 (3) SA 94
(O) at 96D, as quoted in
Van
Vuuren v Jansen
1977 (3) SA 1062
(T) at 1062H
[2]
Rodrew
(Pty) Ltd v Rossouw
1973 (3) 137 (O) at 138B-C and the authorities cited there
[3]
1976
(2) SA 797
(T) at 799E-800B
[4]
3
Menz 307
[5]
N
edbank
Ltd v Norton
1987 (3) SA 619
(N) at 622E with reference to
Amalgamated
Hardware & Timber (Pty) Ltd v Wimmers
1964 (2) SA 542
(T) and
Rodrew
(Pty) Ltd v Rossouw
1975 (3) SA 137(O).
See too
Saber
Motors (Pty) Ltd v Morophone
1961
(1) SA 759
(W) and
Moodley
v Hedley
1963 (3) SA 453
(N) at 455C.
[6]
3 Menz 307
[7]
At 308
[8]
1907
TS 727
at 732
[9]
1 SAR 113
[10]
2 SC 104
, a decision of this Court in 1883-4
[11]
De
Waard (supra)
at 732
[12]
At 732-3
[13]
At 735
[14]
At 738
[15]
1932 TPD 110
[16]
Discussed by Nathan in his Commentary on the
Insolvency Act, 1936
at
43
[17]
1940
TPD 147
at 149
[18]
1960
(3) SA 432
(N) at 434D
[19]
1976 (2) SA 797
(T) at 800E-G
[20]
1973
(1) SA 333
(N) at 338F
[21]
Practice and Procedure under the Insolvency Act, 1937 at 68
[22]
1926
OPD 8
[23]
South African Insolvency Law, 1936 at 44
[24]
Insolvency Law (2014) at 2-8
[25]
1951 (2) SA 166
(T) at 172F-H
[26]
N
edbank
Ltd v Norton
1987 (3) SA 619
(N) at 622E with reference to
Amalgamated
Hardware & Timber (Pty) Ltd v Wimmers
1964 (2) SA 542
(T) and
Rodrew
(Pty) Ltd v Rossouw
1975 (3) SA 137(O).
See too
Saber
Motors (Pty) Ltd v Morophone
1961
(1) SA 759
(W) and
Moodley
v Hedley
1963 (3) SA 453
(N) at 455C.
[27]
Qui
prior est tempore potior est iure
(cf D 20 4 11
et
seq
)
[28]
Natal
Joint Municipal Pension Fund v Endumeni Municipality
2012 (4) SA 593
(SCA) at para 26
[29]
At para 26
[30]
At para 18
[31]
See footnote 27
[32]
LAWSA 27 at 412
[33]
As
stated in
Deputy-Sheriff
v Goldberg
1905
T.S. 680
at 684 to which reference is made in
Sussman
&
Co (Pty) Ltd v Schwarzer
1960
(3) SA 94
(OPD)
at
96D-H; Meskin Insolvency Law 2-6)6);
Saber
Motors (Pty) Ltd v Morophane
1961 (1) SA 759
(WLD) at 761D;
Van
Vuuren v Jansen
1977 (3) SA 1062
(TPD) at 1062H
[34]
At
96C-F quoted with approval in
Van
Vuuren v Jansen
1977 (3) SA 1062
(T) at 1062H-1062C
[35]
Sussman
& Co (Pty) Ltd v Schwarzer
at
96G-H
[36]
National
Director of Public Prosecutions v Zuma
[2009] ZASCA 1
;
2009 (2) SA 277
(SCA) at 290D
[37]
Plascon-Evans
Paints v Van Riebeeck Paints
[1984] ZASCA 51
;
1984
(3) SA 623
(A) at 634E-635D
[38]
1988
(4) SA 224
(A) at 259C-263D
[39]
[2009] ZASCA 1
;
2009
(2) SA 277
(SCA) paras 26-27
[40]
2012
(3) SA 59
(WCC) at par 19.
[41]
Ngqumba
& 'n Ander
v
Staatspresident
& Andere
1988
(4) SA 224
(A) at 259C-263D;
National
Director of Public Prosecutions
v
Zuma
[2009] ZASCA 1
;
2009
(2) SA 277
(SCA) paras 26-27.
[42]
Ngqumba
(supra)
at 243G-H
[43]
Ngqumba
at
244A-C and
259C-262B