Chiliza v Govender and Another (1603/2012) [2013] ZAKZDHC 14; 2013 (4) SA 600 (KZD) (29 April 2013)

Chiliza v Govender and Another (1603/2012) [2013] ZAKZDHC 14; 2013 (4) SA 600 (KZD) (29 April 2013)

The court held that while service of the sequestration petition on SARS is peremptory, the requirement to serve the provisional order on SARS under section 11(2A)(c) of the Insolvency Act is not absolute. The absence of a statutory requirement for an affidavit confirming service of the provisional order, and the retention of section 12 in its original form, indicate that non-service of the provisional order does not preclude the granting of a final sequestration order. The legislative purpose—to afford SARS an opportunity to intervene—is substantially achieved by service of the petition. The court retains discretion to insist on service of the provisional order in appropriate cases, but...

Citation
[2013] ZAKZDHC 14
Parties
Applicant: Nomvula Effie Chiliza; Respondent: Ashendran Govender; Respondent: Integer Mortgage
Court
Kwazulu-Natal High Court, Durban
Jurisdiction
South Africa
Judgment Date
29 April 2013
Case Number
1603/2012
Procedural Posture
Urgent Application / Application for Rescission of Final Sequestration Order
Outcome
Application dismissed with costs.
Judges
Vahed
Legal Topics
Sequestration, Service on Sars, Insolvency Act Section 11 2a C, Rescission of Order
Civil Procedure Sequestration Service on Sars Insolvency Act Section 11 2a C Rescission of Order

Case Brief

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Parties

Nomvula Effie Chiliza

Applicant

Ashendran Govender

Respondent

Integer Mortgage

Respondent

Procedural Posture

Urgent Application / Application for Rescission of Final Sequestration Order

Legal Issues

  1. 1 Whether the failure to serve the provisional sequestration order on SARS as required by section 11(2A)(c) of the Insolvency Act precluded the court from granting a final sequestration order.
  2. 2 Whether the requirement to serve the provisional order on SARS is peremptory or directory.

Ratio Decidendi

The court held that while service of the sequestration petition on SARS is peremptory, the requirement to serve the provisional order on SARS under section 11(2A)(c) of the Insolvency Act is not absolute. The absence of a statutory requirement for an affidavit confirming service of the provisional order, and the retention of section 12 in its original form, indicate that non-service of the provisional order does not preclude the granting of a final sequestration order. The legislative purpose—to afford SARS an opportunity to intervene—is substantially achieved by service of the petition. The court retains discretion to insist on service of the provisional order in appropriate cases, but...

Court Disposition

Application dismissed with costs.

Orders

  • The application for rescission of the final sequestration order is dismissed.
  • The applicant is ordered to pay the costs of the application.