Breytenbach N.O. and Another v Ellison and Another (84994/2019) [2022] ZAGPPHC 409 (17 June 2022)

Breytenbach N.O. and Another v Ellison and Another (84994/2019) [2022] ZAGPPHC 409 (17 June 2022)

The court found that the order of Kollapen J dated 12 April 2018 empowered the applicants, as trustees, to administer and realise all assets of the first respondent in South Africa, including the immovable property at Dam Road, Waterkloof, Pretoria. The property was specifically identified in the proceedings before Kollapen J and was registered in the respondent's name at the time of the order. The respondent's arguments regarding rehabilitation under section 127A of the Insolvency Act and exclusion of the property from the estate were rejected, as the recognition order did not constitute a South African sequestration order but vested the trustees with powers to administer all assets in...

Citation
[2022] ZAGPPHC 409
Parties
Applicant: Marthinus Jacobus Dewald Breytenbach N.O.; Applicant: Richard Hicken N.O.; Respondent: Clive Malcolm Ellison; Respondent: The City of Tshwane
Court
North Gauteng High Court, Pretoria
Jurisdiction
South Africa
Judgment Date
17 June 2022
Case Number
84994/2019
Procedural Posture
Urgent Application / Opposed Application for Eviction and Counter Application
Outcome
Application for eviction granted; counter-application dismissed.
Judges
Collis
Legal Topics
Eviction Proceedings, Insolvency Trustee Powers, Rehabilitation Under Insolvency Act, Recognition of Foreign Insolvency, Just and Equitable Eviction, Pie Act Requirements
Civil Procedure Land and Property Eviction Proceedings Insolvency Trustee Powers Rehabilitation Under Insolvency Act Recognition of Foreign Insolvency Just and Equitable Eviction Pie Act Requirements

Case Brief

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Parties

Marthinus Jacobus Dewald Breytenbach N.O.

Applicant

Richard Hicken N.O.

Applicant

Clive Malcolm Ellison

Respondent

The City of Tshwane

Respondent

Procedural Posture

Urgent Application / Opposed Application for Eviction and Counter Application

Legal Issues

  1. 1 Whether the order of Kollapen J dated 12 April 2018 entitles the applicants to evict the first respondent from the property.
  2. 2 Whether sections 127A and 129 of the Insolvency Act 24 of 1936 are applicable to the respondent's rehabilitation.
  3. 3 Whether the immovable property occupied by the first respondent forms part of the sequestrated estate administered by the applicants.

Ratio Decidendi

The court found that the order of Kollapen J dated 12 April 2018 empowered the applicants, as trustees, to administer and realise all assets of the first respondent in South Africa, including the immovable property at Dam Road, Waterkloof, Pretoria. The property was specifically identified in the proceedings before Kollapen J and was registered in the respondent's name at the time of the order. The respondent's arguments regarding rehabilitation under section 127A of the Insolvency Act and exclusion of the property from the estate were rejected, as the recognition order did not constitute a South African sequestration order but vested the trustees with powers to administer all assets in...

Court Disposition

Application for eviction granted; counter-application dismissed.

Orders

  • The First Respondent is evicted from the premises situated at Dam Road, Waterkloof, Pretoria.
  • The First Respondent is to vacate the premises within 30 days of the date of this order.