Breda NO v The Master of the High Court, Kimberley (20537/2014) [2015] ZASCA 166 (26 November 2015)

Breda NO v The Master of the High Court, Kimberley (20537/2014) [2015] ZASCA 166 (26 November 2015)

The Supreme Court of Appeal held that the admission of the third respondent's claim by the second respondent was provisional and subject to further investigation by the trustees. The presiding officer is not required to adjudicate the claim as a court of law but must be satisfied with prima facie proof. The issue of prescription is more appropriately determined by the trustees during their examination of claims, not by the presiding officer at the first meeting of creditors. The affidavit supporting the claim, although commissioned by an attorney with an interest in the matter, falls within the exemption provided by the amended schedule to the Regulations Governing the Administering of an...

Citation
[2015] ZASCA 166
Parties
Appellant: Lanel Breda NO; Respondent: The Master of the High Court, Kimberley; Respondent: Nomzi Khumalo NO; Respondent: Petrus Arnoldus Els
Court
Supreme Court of Appeal
Jurisdiction
South Africa
Judgment Date
26 November 2015
Case Number
20537/2014
Procedural Posture
Civil Appeal / Appeal From the Northern Cape Division of the High Court, Kimberley
Outcome
Appeal dismissed with costs.
Judges
Maya DP, Theron, Wallis, Swain, Mathopo
Legal Topics
Insolvency Act Section 44, Proof of Claims, Commissioner of Oaths Exemption, Prescription Interruption
Civil Procedure Land and Property Insolvency Act Section 44 Proof of Claims Commissioner of Oaths Exemption Prescription Interruption

Case Brief

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Parties

Lanel Breda NO

Appellant

The Master of the High Court, Kimberley

Respondent

Nomzi Khumalo NO

Respondent

Petrus Arnoldus Els

Respondent

Procedural Posture

Civil Appeal / Appeal From the Northern Cape Division of the High Court, Kimberley

Legal Issues

  1. 1 Whether the second respondent erred in admitting the third respondent's claim without interrogation regarding prescription.
  2. 2 Whether the affidavit supporting the third respondent's claim was invalid due to being commissioned by an attorney with an interest in the matter.
  3. 3 Whether the provisional admission of the claim was appropriate given the evidence of possible prescription.

Ratio Decidendi

The Supreme Court of Appeal held that the admission of the third respondent's claim by the second respondent was provisional and subject to further investigation by the trustees. The presiding officer is not required to adjudicate the claim as a court of law but must be satisfied with prima facie proof. The issue of prescription is more appropriately determined by the trustees during their examination of claims, not by the presiding officer at the first meeting of creditors. The affidavit supporting the claim, although commissioned by an attorney with an interest in the matter, falls within the exemption provided by the amended schedule to the Regulations Governing the Administering of an...

Court Disposition

Appeal dismissed with costs.

Orders

  • The appeal is dismissed with costs.