Court v Standard Bank of South Africa Ltd., Court v Bester NO (133/93, 638/93) [1995] ZASCA 39; 1995 (3) SA 123 (AD); [1995] 2 All SA 440 (A) (30 March 1995)

Court v Standard Bank of South Africa Ltd., Court v Bester NO (133/93, 638/93) [1995] ZASCA 39; 1995 (3) SA 123 (AD); [1995] 2 All SA 440 (A) (30 March 1995)

The court held that the sequestration application was not fatally defective for want of compliance with section 9(3) of the Insolvency Act. The certificate of security need not accompany the application at the time of filing or service, provided it is before the court at the hearing. The purpose of the security is to cover administrative costs, not opposition costs. The appellant's letter to Standard Bank constituted an act of insolvency under section 8(g), as it indicated an inability to pay debts. The evidence showed that the appellant was insolvent at the time of the second hearing, with liabilities exceeding the value of her assets. The application for condonation was refused due to...

Citation
[1995] ZASCA 39
Parties
Appellant: Barbara Kilroy Court; Respondent: Standard Bank of South Africa Limited; Respondent: Lambertus Von Wielligh Bester NO; Respondent: Barend Johannes Vorster Durandt NO; Respondent: Syfrets Bank Limited
Court
Supreme Court of Appeal
Jurisdiction
South Africa
Judgment Date
30 March 1995
Case Number
133/93, 638/93
Procedural Posture
Civil Appeal / Appeal Against Final Order of Sequestration and Application for Condonation
Outcome
Application for condonation refused; appeal against final order of sequestration dismissed; appeal in case no 9716/93 upheld.
Judges
Joubert, Vivier, Eksteen, F H Grosskopf, Nienaber
Legal Topics
Sequestration Proceedings, Condonation of Late Filing, Security for Costs, Acts of Insolvency, Advantage to Creditors
Civil Procedure Banking and Finance Sequestration Proceedings Condonation of Late Filing Security for Costs Acts of Insolvency Advantage to Creditors

Case Brief

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Parties

Barbara Kilroy Court

Appellant

Standard Bank of South Africa Limited

Respondent

Lambertus Von Wielligh Bester NO

Respondent

Barend Johannes Vorster Durandt NO

Respondent

Syfrets Bank Limited

Respondent

Procedural Posture

Civil Appeal / Appeal Against Final Order of Sequestration and Application for Condonation

Legal Issues

  1. 1 Whether the sequestration application was fatally defective for non-compliance with section 9(3) of the Insolvency Act.
  2. 2 Whether the appellant's estate was properly placed under sequestration.
  3. 3 Whether the appellant committed an act of insolvency under section 8(g) of the Insolvency Act.

Ratio Decidendi

The court held that the sequestration application was not fatally defective for want of compliance with section 9(3) of the Insolvency Act. The certificate of security need not accompany the application at the time of filing or service, provided it is before the court at the hearing. The purpose of the security is to cover administrative costs, not opposition costs. The appellant's letter to Standard Bank constituted an act of insolvency under section 8(g), as it indicated an inability to pay debts. The evidence showed that the appellant was insolvent at the time of the second hearing, with liabilities exceeding the value of her assets. The application for condonation was refused due to...

Court Disposition

Application for condonation refused; appeal against final order of sequestration dismissed; appeal in case no 9716/93 upheld.

Orders

  • In case no 9245/91, the application for condonation of the late lodging of the record is refused and the appellant is ordered to pay Standard Bank's costs relating to the application for condonation and the appeal, including the costs of two counsel.
  • In case no 9716/93, the appeal is upheld with costs. The judgment of the court a quo is altered to read: No order is made on the application save that the costs of the first and second applicants are ordered to be costs in the administration of the insolvent estate, such costs to be treated as costs of realisation...