Beira v Raphaely Weiner and Others (642/96, 643/96, 130/97, 131/97, 164/97, 165/97) [1997] ZASCA 59; 1997 (4) SA 332 (SCA); (30 May 1997)

Beira v Raphaely Weiner and Others (642/96, 643/96, 130/97, 131/97, 164/97, 165/97) [1997] ZASCA 59; 1997 (4) SA 332 (SCA); (30 May 1997)

The petitioner failed to provide any explanation for the lengthy delay between being advised of his rights and filing the notice of appeal. This omission is fatal to his application for condonation, regardless of any prospects of success. The partnership Raphaely-Weiner retained locus standi to pursue the claim as the asset remained a partnership asset post-dissolution. The nulla bona returns constituted valid acts of insolvency as personal service was effected and the petitioner failed to indicate disposable property. The petitioner's allegations of being denied a fair hearing were not supported by the record; the judge exercised proper judicial control and addressed all relevant issues....

Citation
[1997] ZASCA 59
Parties
Appellant: Bentley Samuel Beira; Respondent: Raphaely Weiner; Respondent: First National Bank; Respondent: Sheila Iris Beira
Court
Supreme Court of Appeal
Jurisdiction
South Africa
Judgment Date
30 May 1997
Case Number
642/96, 643/96, 130/97, 131/97, 164/97, 165/97
Procedural Posture
Civil Appeal / Petitions for Condonation, Leave to Adduce Further Evidence, Waiver of Security, and Leave to Proceed in Forma Pauperis Following a Final Sequestration Order.
Outcome
All petitions, including the application for condonation, leave to adduce further evidence, waiver of security, and leave to proceed in forma pauperis, are dismissed with costs.
Judges
Vivier, Nienaber, Harms
Legal Topics
Sequestration, Condonation of Late Appeal, Locus Standi, Acts of Insolvency, Nulla Bona Return, In Forma Pauperis
Civil Procedure Banking and Finance Sequestration Condonation of Late Appeal Locus Standi Acts of Insolvency Nulla Bona Return In Forma Pauperis

Case Brief

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Parties

Bentley Samuel Beira

Appellant

Raphaely Weiner

Respondent

First National Bank

Respondent

Sheila Iris Beira

Respondent

Procedural Posture

Civil Appeal / Petitions for Condonation, Leave to Adduce Further Evidence, Waiver of Security, and Leave to Proceed in Forma Pauperis Following a Final Sequestration Order.

Legal Issues

  1. 1 Whether condonation should be granted for the late filing of the notice of appeal against the sequestration order.
  2. 2 Whether the applicant in the sequestration proceedings had locus standi despite dissolution of the partnership.
  3. 3 Whether the nulla bona returns constituted valid acts of insolvency.

Ratio Decidendi

The petitioner failed to provide any explanation for the lengthy delay between being advised of his rights and filing the notice of appeal. This omission is fatal to his application for condonation, regardless of any prospects of success. The partnership Raphaely-Weiner retained locus standi to pursue the claim as the asset remained a partnership asset post-dissolution. The nulla bona returns constituted valid acts of insolvency as personal service was effected and the petitioner failed to indicate disposable property. The petitioner's allegations of being denied a fair hearing were not supported by the record; the judge exercised proper judicial control and addressed all relevant issues....

Court Disposition

All petitions, including the application for condonation, leave to adduce further evidence, waiver of security, and leave to proceed in forma pauperis, are dismissed with costs.

Orders

  • Petition for condonation of late filing of notice of appeal is dismissed with costs.
  • Petition for condonation of late filing of the record is dismissed with costs.