Cloete N.O v Ramphele (25067/2020) [2021] ZAGPPHC 509 (28 July 2021)
- Citation
- [2021] ZAGPPHC 509
- Status
- Judgment
- Jurisdiction
- South Africa
- Court
- North Gauteng High Court, Pretoria
- Panel
- Van Zyl
- Case number
- 25067/2020
More details
- Court
- North Gauteng High Court, Pretoria
- Panel
- Van Zyl
- Case number
- 25067/2020
On this page
Professional case brief
Research organized from the available case record
01
Holding and result
The court held that section 150 of the Insolvency Act restricts the right of appeal to final sequestration orders or orders setting aside provisional sequestration. An appeal does not lie against a provisional sequestration order. The respondent's application for leave to appeal was therefore incompetent and had to be dismissed. The court further found that the respondent's allegations of dishonest litigation were irrelevant to the appeal and did not warrant a punitive costs order, as no prior notice had been given to the respondent that such an order would be sought.
Court disposition
Application for leave to appeal dismissed with costs.
Orders
- The application for leave to appeal is dismissed with costs.
- The respondent is ordered to pay the costs of the application for leave to appeal.
02
Material facts
Parties
Cloete Murray N.O.
Applicant Counsel: Adv LourensRamphele, Tshepiso David
Respondent Counsel: Adv P. W. Makhambeni03
Procedural history
Posture
Leave to Appeal / Application for Leave to Appeal Against Provisional Sequestration Order
04
Questions and positions
Legal issues
- 01
Whether an appeal lies against a provisional order of sequestration under section 150 of the Insolvency Act.
- 02
Whether the respondent's application for leave to appeal is competent.
- 03
Whether a punitive costs order should be granted due to allegations of dishonest litigation.
Party arguments
- Applicant
- The applicant argued that section 150 of the Insolvency Act only permits appeals against final sequestration orders or orders setting aside provisional sequestration, and not against provisional sequestration orders. The applicant further submitted that the respondent's allegations of dishonest litigation are irrelevant and do not constitute grounds for appeal.
- Respondent
- The respondent sought leave to appeal the provisional sequestration order, alleging that the applicant had litigated dishonestly. The respondent did not provide legal grounds to support the appealability of the provisional order under section 150 of the Insolvency Act.
05
Court’s reasoning
Legal principles
- 01
Insolvency Act 24 of 1936, section 150(1)
Section 150(1) of the Insolvency Act permits appeals only against final sequestration orders or orders setting aside provisional sequestration, not against provisional sequestration orders.
- 02
Insolvency Act 24 of 1936, section 150(5)
There shall be no appeal against any order made by the court in terms of the Insolvency Act except as provided in section 150.
- 03
Superior Courts Act 10 of 2013, section 17
The Supreme Court Act section 20, now replaced by section 17 of the Superior Courts Act, does not alter the appealability of provisional sequestration orders.
- 04
Lawclaims (Pty) Ltd v Rea Shipping Co SA 1979 (4) SA 745 (N)
A decision granting a provisional order of sequestration is not appealable.
- 05
Moch v Nedtravel (Pty) Limited trading as American Express Travel Service 1996 (3) SA 1 (A) at 7
Allegations of dishonest litigation, without prior notice, do not justify a punitive costs order.
06
Ratio, limits and disposition
Ratio decidendi
The court held that section 150 of the Insolvency Act restricts the right of appeal to final sequestration orders or orders setting aside provisional sequestration. An appeal does not lie against a provisional sequestration order. The respondent's application for leave to appeal was therefore incompetent and had to be dismissed. The court further found that the respondent's allegations of dishonest litigation were irrelevant to the appeal and did not warrant a punitive costs order, as no prior notice had been given to the respondent that such an order would be sought.
Obiter and limits
- The respondent's allegations of dishonest litigation were inappropriate and irrelevant to the grounds of appeal.
- Punitive costs orders require prior notice to the affected party.
Court disposition
Application for leave to appeal dismissed with costs.
- The application for leave to appeal is dismissed with costs.
- The respondent is ordered to pay the costs of the application for leave to appeal.
Source and reliance status
North Gauteng High Court, Pretoria
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Judgment reading view
Judgment text
The complete available source text.
North Gauteng High Court, Pretoria
Judgment
SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document in compliance with the law and SAFLII Policy
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, PRETORIA
(1) REPORTABLE:
YES/NO
(2) OF INTEREST TO
OTHER JUDGES YES/NO
(3) REVISED:
28 July 2021
CASE NUMBER: 25067/2020
In the matter between :
CLOETE MURRAY N.O.
Applicant
and
RAMPHELE, TSHEPISO DAVID
Respondent
([….])
JUDGMENT
Heard on:
28 July 2021
Judgment handed down: This judgment is handed down electronically by circulation to the parties or their legal representatives by email and by uploading it to the electronic file of this matter on Caselines. The date for hand-down is deemed to be 28 July 2021.
VAN
ZYL AJ
1. For the sake of convenience, I refer to the parties as cited in the main application.
2. The Respondent, Mr Ramphele, has applied for leave to appeal against my judgment and order of 14 June 2021 in terms of which I placed Mr Ramphele’s estate under provisional sequestration, returnable on 2 August 2021.
3. Section 150(1) of the Insolvency Act (Act 24 of 1936)[1] provides that a person aggrieved by a final order of sequestration or by an order setting aside an order of provisional sequestration, may appeal against the order. The orders mentioned are the only two orders that are appealable in terms of the Act.[2]
4. Section 150 of the Insolvency Act does not permit an appeal against a provisional order of sequestration.[3] It follows that a decision granting a provisional order of sequestration is not appealable.[4]
5. In the premises the application for leave to appeal cannot succeed.
6. In paragraph 10 of the application of the notice of application for leave to appeal, Mr Ramphele saw it fit to accuse the applicant, Mr Murray, of litigating in a dishonest fashion. The allegations do not constitute a ground for appeal, are irrelevant and inappropriate. Counsel for Mr Murray requested that I dismiss the application on a punitive scale given these allegations. However, since no prior notice had been given to Mr Ramphele that a punitive cost order would be sought, I am declining to make such an order.
ORDER:
In the premises I make the following order:
1. The application for leave to appeal is dismissed with costs.
2. The Respondent is ordered to pay the costs of the application for leave to appeal.
DIRK R. VAN ZYL
ACTING JUDGE OF THE HIGH COURT
GAUTENG DIVISION, PRETORIA
Appearances: For the Respondent: Adv P. W. Makhambeni Adv Shai Instructed by: Ramphele Attorneys
For the Applicant: Adv Lourens
Instructed by:
Roestoff Attorneys
[1] Section 150(1) provides as follows in relevant part: “150. Appeal (1) Any person aggrieved by a final order of sequestration or by an order setting aside an order of provisional sequestration may, subject to the provisions of section 20(4) and (5) of the Supreme Court, 1959 (Act No 59 of 1959), appeal against such order. […] (5) There shall be no appeal against any Order made by the court in terms of this Act, except as provided in this section” (Section 20 of the Supreme Court Act of 1959 has been replaced by section 17 of the Superior Courts Act (Act 10 of 2013). This, however, does not alter the situation in any material way.)
[1] Section 150(1) provides as follows in relevant part:
“150. Appeal
(1) Any person aggrieved by a final order of sequestration or by an order setting aside an order of provisional sequestration may, subject to the provisions of section 20(4) and (5) of the Supreme Court, 1959 (Act No 59 of 1959), appeal against such order. […]
(5) There shall be no appeal against any Order made by the court in terms of this Act, except as provided in this section”
(Section 20 of the Supreme Court Act of 1959 has been replaced by section 17 of the Superior Courts Act (Act 10 of 2013). This, however, does not alter the situation in any material way.)
[2] The Law of South Africa (LAWSA), Insolvency (Volume 11 – Second Edition), Jurisdiction, Appeals and Review, paragraph 371.
[3] Lawclaims (Pty) Ltd v Rea Shipping Co SA: Schiffscommerz Aussenhandelsbetrieb der VVB Schiffbau intervening 1979 (4) SA 745 (N).
[4] LAWSA supra paragraph 371; Moch v Nedtravel (Pty) Limited trading as American Express Travel Service 1996 (3) SA 1 (A) at 7.
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