Fey N.O. and Another v Serfontein and Another (244/92) [1993] ZASCA 8; [1993] 2 All SA 137 (A) (26 February 1993)

Fey N.O. and Another v Serfontein and Another (244/92) [1993] ZASCA 8; [1993] 2 All SA 137 (A) (26 February 1993)

The majority held that the Supreme Court retains its inherent common law power to remove a trustee in insolvency for misconduct, despite the statutory provisions of the Insolvency Act 24 of 1936, as amended. The court found that the statutory grounds for removal by the Master do not expressly or by necessary implication exclude the court's jurisdiction. The legislative history demonstrates that while the power to remove trustees for misconduct was assigned to the Master, the statute did not intend to abolish the court's residual common law jurisdiction. The majority reasoned that considerations of logic and justice demand that trustees in insolvent estates, as fiduciaries, fall within the...

Citation
[1993] ZASCA 8
Parties
Appellant: Eileen Margaret Fey N.O.; Appellant: Ian Lockhart Whiteford N.O.; Respondent: Jacobus Colyn Serfontein; Respondent: Gideon Andre Serfontein
Court
Supreme Court of Appeal
Jurisdiction
South Africa
Judgment Date
26 February 1993
Case Number
244/92
Procedural Posture
Civil Appeal / Appeal From Dismissal of Exception
Outcome
Appeal dismissed with costs.
Judges
Hoexter, Nestadt, Nienaber, Nicholas, Harms
Legal Topics
Removal of Trustee, Insolvency Act Interpretation, Common Law Jurisdiction, Fiduciary Misconduct
Civil Procedure Commercial and Corporate Removal of Trustee Insolvency Act Interpretation Common Law Jurisdiction Fiduciary Misconduct

Case Brief

Summary, issues, holding and outcome

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Parties

Eileen Margaret Fey N.O.

Appellant

Ian Lockhart Whiteford N.O.

Appellant

Jacobus Colyn Serfontein

Respondent

Gideon Andre Serfontein

Respondent

Procedural Posture

Civil Appeal / Appeal From Dismissal of Exception

Legal Issues

  1. 1 Does the Supreme Court retain a general power at common law to remove a trustee in insolvency for misconduct, notwithstanding the provisions of the Insolvency Act?
  2. 2 Has the Insolvency Act 24 of 1936, as amended, ousted the court's common law jurisdiction to remove trustees for misconduct?

Ratio Decidendi

The majority held that the Supreme Court retains its inherent common law power to remove a trustee in insolvency for misconduct, despite the statutory provisions of the Insolvency Act 24 of 1936, as amended. The court found that the statutory grounds for removal by the Master do not expressly or by necessary implication exclude the court's jurisdiction. The legislative history demonstrates that while the power to remove trustees for misconduct was assigned to the Master, the statute did not intend to abolish the court's residual common law jurisdiction. The majority reasoned that considerations of logic and justice demand that trustees in insolvent estates, as fiduciaries, fall within the...

Court Disposition

Appeal dismissed with costs.

Orders

  • The appeal is dismissed with costs.