Bezuidenhout; In Re: Ex parte Pieterse (1858/2014; 1859/2014), Ex parte [2014] ZAECPEHC 60 (19 August 2014)

Bezuidenhout; In Re: Ex parte Pieterse (1858/2014; 1859/2014), Ex parte [2014] ZAECPEHC 60 (19 August 2014)

The court found that the evidence presented in support of the applications for voluntary surrender was unreliable, particularly the valuations of assets provided by the sworn appraiser, Mr. Styger, whose methods and relationship with the attorney, Mr. Markgraaf, raised serious concerns about independence and integrity. The applicants failed to demonstrate, on credible evidence, that there was an advantage to creditors as required by the Insolvency Act. Furthermore, neither application addressed why the statutory debt counselling mechanisms under the National Credit Act could not be utilised. The court concluded that the applications were improperly brought and that the conduct of the...

Citation
[2014] ZAECPEHC 60
Parties
Applicant: Lynne Anne Bezuidenhout; Applicant: Jan Hendrik Pieterse
Court
Eastern Cape High Court, Port Elizabeth
Jurisdiction
South Africa
Judgment Date
19 August 2014
Case Number
1858/2014; 1859/2014
Procedural Posture
Urgent Application / Application for Voluntary Surrender; Inquiry in Terms of S3(3) of Insolvency Act
Outcome
Applications for voluntary surrender dismissed; matter referred to regulatory authorities for investigation.
Judges
G Goosen
Legal Topics
Voluntary Surrender, Insolvency Act Section 3 3, Advantage to Creditors, Debt Counselling, Contingency Fee Arrangements
Banking and Finance Civil Procedure Voluntary Surrender Insolvency Act Section 3 3 Advantage to Creditors Debt Counselling Contingency Fee Arrangements

Case Brief

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Parties

Lynne Anne Bezuidenhout

Applicant

Jan Hendrik Pieterse

Applicant

Procedural Posture

Urgent Application / Application for Voluntary Surrender; Inquiry in Terms of S3(3) of Insolvency Act

Legal Issues

  1. 1 Whether the evidence presented in support of voluntary surrender is reliable and sufficient to establish advantage to creditors.
  2. 2 Whether the conduct of the attorney and sworn appraiser undermines the integrity of the application.
  3. 3 Whether the machinery of the National Credit Act should have been utilised instead of voluntary surrender.

Ratio Decidendi

The court found that the evidence presented in support of the applications for voluntary surrender was unreliable, particularly the valuations of assets provided by the sworn appraiser, Mr. Styger, whose methods and relationship with the attorney, Mr. Markgraaf, raised serious concerns about independence and integrity. The applicants failed to demonstrate, on credible evidence, that there was an advantage to creditors as required by the Insolvency Act. Furthermore, neither application addressed why the statutory debt counselling mechanisms under the National Credit Act could not be utilised. The court concluded that the applications were improperly brought and that the conduct of the...

Court Disposition

Applications for voluntary surrender dismissed; matter referred to regulatory authorities for investigation.

Orders

  • The applications for voluntary surrender under case number 1858/2014 and case number 1859/2014 are dismissed.
  • The Registrar of this Court is directed to provide a copy of this judgment together with a copy of the transcript of the examination conducted in terms of s 3(3) of the Insolvency Act on 1 August 2014 to the Law Society of the Northern Provinces; the Chief Executive Officer of the National Credit Regulator and the...