Divaris and Another v Master of the High Court Johannesburg and Others (046772/2023) [2023] ZAGPJHC 611 (1 June 2023)

Divaris and Another v Master of the High Court Johannesburg and Others (046772/2023) [2023] ZAGPJHC 611 (1 June 2023)

The court held that the summons issued under section 152(2) of the Insolvency Act was invalid due to the failure to tender the prescribed witness fees. The authorities binding on the court require strict compliance with the tariff, and a defective tender renders the summons liable to be set aside. The respondents' attempt to distinguish the matter on the basis of waiver or remote evidence was rejected, as waiver was neither pleaded nor established, and the applicants' conduct did not amount to acceptance of the defective process. The court found no basis for costs de bonis propriis, as the respondents' opposition was not frivolous or unreasonable, despite being unsuccessful. Both parties...

Citation
[2023] ZAGPJHC 611
Parties
Applicant: Justin Nichlas Divaris; Applicant: Daytona (Pty) Ltd t/a Rolls Royce Motor Cars Johannesburg; Respondent: The Master of the High Court Johannesburg; Respondent: Saffy, Luke Barnard N.O.; Respondent: Du Plessis, Johannes Hendricus N.O.; Respondent: Kgatle, Louisa Selina N.O.
Court
South Gauteng High Court, Johannesburg
Jurisdiction
South Africa
Judgment Date
1 June 2023
Case Number
046772/2023
Procedural Posture
Urgent Application / Application to Set Aside Summons Issued Under Section 152(2) of the Insolvency Act
Outcome
Application granted; summons set aside; costs are costs in the administration of the insolvent estate.
Judges
C E Thompson
Legal Topics
Insolvency Act Section 152, Witness Fees Tender, Summons Validity, Waiver of Rights
Civil Procedure Banking and Finance Insolvency Act Section 152 Witness Fees Tender Summons Validity Waiver of Rights

Case Brief

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Parties

Justin Nichlas Divaris

Applicant

Daytona (Pty) Ltd t/a Rolls Royce Motor Cars Johannesburg

Applicant

The Master of the High Court Johannesburg

Respondent

Saffy, Luke Barnard N.O.

Respondent

Du Plessis, Johannes Hendricus N.O.

Respondent

Kgatle, Louisa Selina N.O.

Respondent

Procedural Posture

Urgent Application / Application to Set Aside Summons Issued Under Section 152(2) of the Insolvency Act

Legal Issues

  1. 1 Whether a summons issued under section 152(2) of the Insolvency Act is valid if the prescribed witness fees are not properly tendered.
  2. 2 Whether the applicants waived their right to object to the defective tender of witness fees.
  3. 3 Whether the matter is distinguishable from settled authority regarding defective witness fee tenders.

Ratio Decidendi

The court held that the summons issued under section 152(2) of the Insolvency Act was invalid due to the failure to tender the prescribed witness fees. The authorities binding on the court require strict compliance with the tariff, and a defective tender renders the summons liable to be set aside. The respondents' attempt to distinguish the matter on the basis of waiver or remote evidence was rejected, as waiver was neither pleaded nor established, and the applicants' conduct did not amount to acceptance of the defective process. The court found no basis for costs de bonis propriis, as the respondents' opposition was not frivolous or unreasonable, despite being unsuccessful. Both parties...

Court Disposition

Application granted; summons set aside; costs are costs in the administration of the insolvent estate.

Orders

  • The summons issued in terms of Section 152(2) of the Insolvency Act of 1936 dated and issued by the First Respondent on 18 April 2023 in the insolvent estate of Sheperd Huxley Bushiri with Master Reference Number G1230/2020 and directed at the Applicants is set aside.
  • The costs of the application are costs in the administration of the insolvent estate.