Engelbrecht and Another v Meester van die Hooggeregshof and Others (3574/2002, 3581/2002) [2002] ZAFSHC 14 (10 October 2002)

Engelbrecht and Another v Meester van die Hooggeregshof and Others (3574/2002, 3581/2002) [2002] ZAFSHC 14 (10 October 2002)

The court held that the applicants, being the insolvent and her spouse, were not entitled to witness allowances under section 65(7) of the Insolvency Act. The statutory exclusion applied, and the facts were distinguishable from previous cases where the witness was entitled to payment. The payment by crossed cheque, although not legal tender, was supplemented by a further tender to cover any additional proven costs. Even if the applicants were entitled to witness allowances, a proper tender was made. Therefore, the arrest warrants issued for their failure to attend the insolvency examination were lawfully authorised, and the application to set aside the warrants was dismissed.

Citation
[2002] ZAFSHC 14
Parties
Applicant: Isabel Engelbrecht; Applicant: Hendrik Engelbrecht; Respondent: Meester van die Hooggeregshof; Respondent: Pierre Steyn NO; Respondent: Roelof Davel du Plessis NO; Respondent: Philippus Christoffel Lessing NO; Respondent: Mmathebe Violet Phatshoane NO
Court
Free State High Court, Bloemfontein
Jurisdiction
South Africa
Judgment Date
10 October 2002
Case Number
3574/2002, 3581/2002
Procedural Posture
Urgent Application / Final Determination of Urgent Application
Outcome
Application dismissed with costs.
Judges
Hancke R
Legal Topics
Insolvent Estate Examination, Witness Allowances, Payment by Cheque, Urgent Interdict
Civil Procedure Banking and Finance Insolvent Estate Examination Witness Allowances Payment by Cheque Urgent Interdict

Case Brief

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Parties

Isabel Engelbrecht

Applicant

Hendrik Engelbrecht

Applicant

Meester van die Hooggeregshof

Respondent

Pierre Steyn NO

Respondent

Roelof Davel du Plessis NO

Respondent

Philippus Christoffel Lessing NO

Respondent

Mmathebe Violet Phatshoane NO

Respondent

Procedural Posture

Urgent Application / Final Determination of Urgent Application

Legal Issues

  1. 1 Whether applicants were entitled to advance payment of witness allowances before attending insolvency examination.
  2. 2 Whether payment by crossed cheque constitutes proper tender under the relevant statutes.
  3. 3 Whether the arrest warrants issued for applicants' failure to attend were lawfully authorised.

Ratio Decidendi

The court held that the applicants, being the insolvent and her spouse, were not entitled to witness allowances under section 65(7) of the Insolvency Act. The statutory exclusion applied, and the facts were distinguishable from previous cases where the witness was entitled to payment. The payment by crossed cheque, although not legal tender, was supplemented by a further tender to cover any additional proven costs. Even if the applicants were entitled to witness allowances, a proper tender was made. Therefore, the arrest warrants issued for their failure to attend the insolvency examination were lawfully authorised, and the application to set aside the warrants was dismissed.

Court Disposition

Application dismissed with costs.

Orders

  • The application is dismissed.
  • Applicants are ordered to pay the costs of the application, including those of 4 October 2002, jointly and severally, the one paying the other to be absolved.