Hirschowitz v Gilinsky (102/92) [1994] ZASCA 113 (15 September 1994)

Hirschowitz v Gilinsky (102/92) [1994] ZASCA 113 (15 September 1994)

The court refused the appellant's application for condonation due to a pattern of laxity and disregard for the rules of court, which amounted almost to contempt. The delays were not adequately explained, and the appellant's legal representatives failed to act with the required diligence. The court found that the sequestration was justified, as the appellant was insolvent and there was a reasonable prospect that the bond in favour of Norwich could be set aside, thereby benefiting creditors. The respondent's application for condonation was granted, as his omission was less serious and did not prejudice the appellant.

Citation
[1994] ZASCA 113
Parties
Appellant: Cynthia Dina Hirschowitz; Respondent: Raymond Morris Gilinsky
Court
Supreme Court of Appeal
Jurisdiction
South Africa
Judgment Date
15 September 1994
Case Number
102/92
Procedural Posture
Civil Appeal / Appeal Against Sequestration Order; Applications for Condonation
Outcome
Appellant's application for condonation refused with costs, including costs of appeal. Respondent's application for condonation granted, with respondent to pay any costs occasioned by it.
Judges
Van Heerden, Kumleben, Van den Heever
Legal Topics
Sequestration, Condonation, Suretyship, Benefit of Creditors, Mortgage Bond Challenge
Civil Procedure Banking and Finance Sequestration Condonation Suretyship Benefit of Creditors Mortgage Bond Challenge

Case Brief

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Parties

Cynthia Dina Hirschowitz

Appellant

Raymond Morris Gilinsky

Respondent

Procedural Posture

Civil Appeal / Appeal Against Sequestration Order; Applications for Condonation

Legal Issues

  1. 1 Whether the appellant's application for condonation for late prosecution of the appeal should be granted.
  2. 2 Whether the sequestration of the appellant's estate was justified and beneficial to creditors.
  3. 3 Whether the mortgage bond in favour of Norwich was suspect and could be set aside for the benefit of creditors.

Ratio Decidendi

The court refused the appellant's application for condonation due to a pattern of laxity and disregard for the rules of court, which amounted almost to contempt. The delays were not adequately explained, and the appellant's legal representatives failed to act with the required diligence. The court found that the sequestration was justified, as the appellant was insolvent and there was a reasonable prospect that the bond in favour of Norwich could be set aside, thereby benefiting creditors. The respondent's application for condonation was granted, as his omission was less serious and did not prejudice the appellant.

Court Disposition

Appellant's application for condonation refused with costs, including costs of appeal. Respondent's application for condonation granted, with respondent to pay any costs occasioned by it.

Orders

  • Appellant's application for condonation is refused with costs, including costs of appeal.
  • Respondent's application for condonation is granted; respondent to pay any costs occasioned by it.