Ganes and Another v Telecom Namibia Ltd. (608/2002) [2003] ZASCA 123; [2004] 2 All SA 609 (SCA); 2004 (3) SA 615 (SCA); (2004) 25 ILJ 995 (SCA) (25 November 2003)

Ganes and Another v Telecom Namibia Ltd. (608/2002) [2003] ZASCA 123; [2004] 2 All SA 609 (SCA); 2004 (3) SA 615 (SCA); (2004) 25 ILJ 995 (SCA) (25 November 2003)

The Supreme Court of Appeal found that the respondent's application for sequestration was duly authorised, as the attorneys acting for the respondent were properly appointed and the appellants did not challenge this via the prescribed procedure. The court held that the new matter introduced in the replying affidavit was permissible under s 12(2) of the Insolvency Act, as it constituted further proof of insolvency and the appellants were given an opportunity to respond. The first appellant admitted to receiving substantial payments from entities contracting with the respondent, which the court found to be bribes and secret commissions received in breach of his fiduciary duty as an...

Citation
[2003] ZASCA 123
Parties
Appellant: L I Ganes; Appellant: L G Ganes; Respondent: Telecom Namibia Limited
Court
Supreme Court of Appeal
Jurisdiction
South Africa
Judgment Date
25 November 2003
Case Number
608/2002
Procedural Posture
Civil Appeal / Final Appeal Before Supreme Court of Appeal
Outcome
Appeal dismissed with costs.
Judges
Streicher, Brand, Cloete
Legal Topics
Fiduciary Duty, Secret Commissions, Sequestration, Motion Proceedings, Striking Out New Matter
Commercial and Corporate Civil Procedure Fiduciary Duty Secret Commissions Sequestration Motion Proceedings Striking Out New Matter

Case Brief

Summary, issues, holding and outcome

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Parties

L I Ganes

Appellant

L G Ganes

Appellant

Telecom Namibia Limited

Respondent

Procedural Posture

Civil Appeal / Final Appeal Before Supreme Court of Appeal

Legal Issues

  1. 1 Whether the respondent's application for sequestration was duly authorised.
  2. 2 Whether the court a quo erred in refusing to strike out new matter in the replying affidavit.
  3. 3 Whether the appellants' joint estate was insolvent at the time of the application.

Ratio Decidendi

The Supreme Court of Appeal found that the respondent's application for sequestration was duly authorised, as the attorneys acting for the respondent were properly appointed and the appellants did not challenge this via the prescribed procedure. The court held that the new matter introduced in the replying affidavit was permissible under s 12(2) of the Insolvency Act, as it constituted further proof of insolvency and the appellants were given an opportunity to respond. The first appellant admitted to receiving substantial payments from entities contracting with the respondent, which the court found to be bribes and secret commissions received in breach of his fiduciary duty as an...

Court Disposition

Appeal dismissed with costs.

Orders

  • The appeal is dismissed with costs.