Bronn v Minister of Justice and Others (20598/2006) [2007] ZAGPHC 45 (31 May 2007)

IN

THE HIGH COURT OF SOUTH AFRICA /ES

(TRANSVAAL PROVINCIAL DIVISION)

CASE NO: 20598/2006

DATE: 31/5/2007

not reportable

IN TH E MATTER BETWEEN:

E

C BRONN APPLICANT

AND

THE MINISTER OF JUSTICE 1ST

RESPONDENT

THE MASTER OF THE HIGH COURT,

PRETORIA 2ND

RESPONDENT

MR N KRIGE N.O. 3RD

RESPONDENT

WORLD WIDE CAPITAL (PTY) LTD 4TH

RESPONDENT

E BRONN 5TH

RESPONDENT

P H STRYDOM 6TH

RESPONDENT

B P JONES 7TH

RESPONDENT

JUDGMENT

MOLOPA, J

This is a review application. The applicant seeks an order in the following terms:

1. that the decision of the 2nd respondent, to convene an enquiry in terms of section 152(2) of the Insolvency Act 24 of 1936 ("the act") as amended, be reviewed and set aside; and/or

2. a declaratory order that the summonses attached as annexures "A" to "D" are void and that neither of the witnesses mentioned therein are in terms thereof obliged to appear before the 1st and/or the 2nd respondent;

3. that the 4th respondent be ordered to pay the costs of this application;

4. that any of the other respondents be ordered to pay the costs of this application jointly and severally with the 3rd respondent in the event of any of them opposing the application.

The facts and history set out in the papers are briefly as follows.

0n 16 November 2005 the 4th respondent brought an application for the sequestration of the applicant's estate. The applicant's estate was provisionally sequestrated on 21 April 2006.

0n 8 May 2006, following on such provisional sequestration, the 3rd respondent, a deputy master of the high court, took a decision to convene an enquiry in terms of section 152(2) of the act. Following upon this decision, summonses were issued on 15 May 2006 in terms of which the applicant, together with the 5th to 7th respondents, were called upon to appear before the 2nd respondent in order to furnish the master with all the information within their knowledge concerning the insolvent estate of the applicant or concerning the insolvent/applicant or the administration of her estate. Each of the witnesses, including the applicant, was also required to produce documentation referred to in annexure "A" to the summonses issued in respect of him/her.

The enquiry aforesaid was convened at the instance and request of the 4th respondent. Written submissions were apparently made by the 4th respondent to the 3rd respondent in accordance with the provisions of section 152 of the act, in terms whereof authorisation for the enquiry aforesaid was granted.

Applicant's legal representatives apparently requested a copy of the 4th respondent's written submissions/application for the enquiry, from the 3rd respondent, which request was apparently refused by the 3rd respondent ie 3rd respondent refused to furnish the applicant and/or her legal representatives with a copy of the 4th respondent's application/submissions pursuant to which the enquiry was authorised to be held.

The applicant contends that the convening of the enquiry by the 3rd respondent in terms of section 152 of the act is invalid on the basis that the 3rd respondent did not exercise his discretion properly, since he did not have all the facts before him alternatively that he did not consider all the facts properly in arriving at his decision to authorise the enquiry in terms of section 152 of the act. Also, that the summonses he issued were invalid.

Applicant sets out as a basis that the 3rd respondent did not exercise his discretion in authorising the enquiry aforesaid grounds for a review as follows:

• That the 4th respondent who requested the 3rd respondent to convene an enquiry's motive in this regard was to acquire information to help them in litigation against applicant and not to advance the administration of applicant's estate. It appears from the record of the enquiry and the report filed by the third respondent who, in his capacity as deputy master, authorised the enquiry, and papers filed by the 4th respondent that the main purpose of the enquiry was to get assets into the insolvent estate for the benefit of applicant's creditors.

This contention has not been disputed in any way by the applicant.

• Secondly, that the applicant's provisional trustees, appointed by the 2nd respondent, was not informed of the application for the enquiry nor was he informed of the enquiry, to enable him to partake/take part in the process. As appears from annexure "GES9" to the 4th respondent's answering affidavit it is clear that the provisional trustee was aware of the enquiry and actually also consented to such enquiry. This is not disputed by the applicant on the papers. Further, the enquiry was for the purpose of acquiring assets for the estate. The applicant does not in any event suggest that the deputy master acted mala fide or from ulterior motive in authorising the enquiry aforesaid.

• That applicant already gave her full co operation to the provisional trustee/curator and that she was already questioned by the curator about all relevant aspects relating to the administration of her estate.

• That she had already provided the curator with all relevant documentation in her possession. As already stated above and as appears from annexure "GES9" aforesaid, the provisional trustee did not have an objection to the enquiry in question. Further the provisional trustee disputes, as appears from annexure "GES8", that he has received any documentation from the applicant. This aspect stands unchallenged on the papers.

• That the summonses issued against her and the 5th to 7th respondents were issued before the enquiry was authorised by the 3rd respondent. The deputy master confirms in his report that the summons were issued by him in Pretoria. The Master's stamp bears evidence to this.

• That the 3rd respondent at all material times held the incorrect view that 4th respondent was dominus litis and that he was merely a functionary that had to carry out 4th respondent's instructions. The term was used by the 3rd respondent apparently to refer to the 4th respondent as the applicant in the enquiry. The applicant has not shown that 3rd respondent failed to apply his mind properly nor that he acted mala fide and/or with ulterior motive.

• That the 3rd respondent ordered the applicant's legal representatives to leave/vacate the forum while other witnesses testified. There is authority in our law that section 152 enquiries are private in nature, the 3rd respondent was thus entitled to order the applicant and her legal team to leave the forum. In any event the applicant does not seek to review this ruling/decision by the 3rd respondent at the proceeding.

• That the 3rd respondent refused to provide the applicant and/or her legal representatives with a copy of the 4th respondent's application which was placed before the 3rd respondent for the enquiry. In this it has been held that the enquiry is a private and confidential one and that the contents of the application should be regarded as confidential. See Strauss and 0thers v The Master and 0thers NNO 2001 1 SA 649 at 662J 663C. It follows from the above that the applicant is not entitled to access to the written application which was placed before the master with a view to enable the applicant to decide whether or not to bring an application for the review of that decision in terms of section 151 of the act.

In so far as the summonses are concerned the argument has no merit, such in any event falls away due to the stalling of the process. The master will in any event have to re issue new summonses when the proceedings in terms of section 152 of the act are reconvened.

It is prudent, in my view, to point out that the applicant had an opportunity in terms of rule 53(4) to amend or add or vary her notice of motion or to supplement her supporting affidavit. Further, after the 3rd and 4th respondents had served and filed their Master's report and answering affidavits respectively applicant had the opportunity to file her replying affidavit to deal with issues raised by the respondents in their affidavits. Applicant chose not to utilise the opportunity available to her aforesaid. At the commencement of the hearing herein counsel for the applicant did not raise and/or argue any prejudice on the part of the applicant on the basis of the absence of any supplementary and/or replying affidavits. He was ready to proceed with the matter on the papers before court.

Thus, issues raised and dealt with by the 3rd and 4th respondents in their respective affidavits stand unchallenged and/or are not disputed.

In the light of the aforegoing I therefore find that the applicant has not made out a proper case for the relief she seeks in her notice of motion.

In the result the application is dismissed with costs, such costs to include the costs of two counsel and such costs should be payable out of the estate of the applicant.

Ms

L M MOLOPA

JUDGE

OF THE HIGH COURT

20598-2006

HEARD ON: 20 OCTOBER 2006

FOR THE APPLICANT: J G

CILLIERS SC

INSTRUCTED BY: STRYDOM & BREDENKAMP INC

FOR THE 4TH RESPONDENT: J M SUTTNER SC & G W GIRWOOD

INSTRUCTED BY: WERKSMANS INC