De Klerk v Griekwaland Wes Korporatief Bpk (CCT 187/13) [2014] ZACC 20; 2014 (8) BCLR 922 (CC) (19 June 2014)

De Klerk v Griekwaland Wes Korporatief Bpk (CCT 187/13) [2014] ZACC 20; 2014 (8) BCLR 922 (CC) (19 June 2014)

The Constitutional Court refused leave to appeal on the basis that the applicant was found to be factually insolvent by both the High Court and the Full Court, independently of whether the debt-restructuring proposal constituted an act of insolvency. The Court held that it should not interfere with the factual findings of the lower courts, as no exceptional circumstances were present and the applicant failed to provide persuasive reasons for such interference. Furthermore, a recent statutory amendment to the National Credit Act (section 8A) clarified that a debtor who has applied for debt review must not be regarded as having committed an act of insolvency, rendering the central legal...

Citation
[2014] ZACC 20
Parties
Applicant: Marthinus David De Klerk; Respondent: Griekwaland Wes Korporatief Bpk
Court
Constitutional Court
Jurisdiction
South Africa
Judgment Date
19 June 2014
Case Number
CCT 187/13
Procedural Posture
Leave to Appeal / Application for Leave to Appeal to the Constitutional Court After Dismissal by Supreme Court of Appeal
Outcome
Leave to appeal refused; costs awarded against the applicant.
Judges
Mogoeng, Moseneke, Cameron, Froneman, Jafta, Khampepe, Madlanga, Majiedt, Van der Westhuizen, Zondo
Legal Topics
Sequestration, Act of Insolvency, Debt Review, National Credit Act Interpretation, Factual Insolvency
Civil Procedure Banking and Finance Sequestration Act of Insolvency Debt Review National Credit Act Interpretation Factual Insolvency

Case Brief

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Parties

Marthinus David De Klerk

Applicant

Griekwaland Wes Korporatief Bpk

Respondent

Procedural Posture

Leave to Appeal / Application for Leave to Appeal to the Constitutional Court After Dismissal by Supreme Court of Appeal

Legal Issues

  1. 1 Does a debt-restructuring proposal under section 86(1) of the National Credit Act constitute an act of insolvency under section 8(g) of the Insolvency Act?
  2. 2 Is the applicant factually insolvent, providing an independent basis for sequestration?
  3. 3 Is it in the interests of justice for the Constitutional Court to grant leave to appeal given the statutory amendment and factual findings?

Ratio Decidendi

The Constitutional Court refused leave to appeal on the basis that the applicant was found to be factually insolvent by both the High Court and the Full Court, independently of whether the debt-restructuring proposal constituted an act of insolvency. The Court held that it should not interfere with the factual findings of the lower courts, as no exceptional circumstances were present and the applicant failed to provide persuasive reasons for such interference. Furthermore, a recent statutory amendment to the National Credit Act (section 8A) clarified that a debtor who has applied for debt review must not be regarded as having committed an act of insolvency, rendering the central legal...

Court Disposition

Leave to appeal refused; costs awarded against the applicant.

Orders

  • The application to amend the respondent’s citation is granted.
  • Leave to appeal is refused.