Hohne v Hohne and Another (603/2017) [2018] ZANCHC 49 (8 June 2018)

Hohne v Hohne and Another (603/2017) [2018] ZANCHC 49 (8 June 2018)

The court found that the applicant failed to establish a prima facie claim against the respondent as required by section 9(1) of the Insolvency Act. The evidence indicated that the alleged loan was in fact a donation from father to son, with no intention or agreement for repayment. The application was a classic case of collusion, intended to frustrate the intervening creditor's execution of judgment. The applicant did not provide credible evidence of a loan, nor did he calculate the advantage to creditors in his founding affidavit. Asset valuations were unsupported and inadmissible. As the applicant failed to discharge his onus, all other issues became moot. The application was dismissed...

Citation
[2018] ZANCHC 49
Parties
Applicant: Barry Lonsdale Hohne; Respondent: Dale Lonsdale Hohne; Respondent: Superstone Mining (Pty) Ltd
Court
Northern Cape High Court, Kimberley
Jurisdiction
South Africa
Judgment Date
8 June 2018
Case Number
603/2017
Procedural Posture
Sequestration Application / Final Judgment
Outcome
Application dismissed with costs on an attorney and client scale, including costs incurred by the intervening creditor in the application for leave to intervene.
Judges
L Vuma
Legal Topics
Provisional Sequestration, Friendly Sequestration, Collusion, Advantage to Creditors, Onus of Proof, Donation Vs Loan
Civil Procedure Provisional Sequestration Friendly Sequestration Collusion Advantage to Creditors Onus of Proof Donation Vs Loan

Case Brief

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Parties

Barry Lonsdale Hohne

Applicant

Dale Lonsdale Hohne

Respondent

Superstone Mining (Pty) Ltd

Respondent

Procedural Posture

Sequestration Application / Final Judgment

Legal Issues

  1. 1 Whether the applicant has made out a prima facie case for the relief sought.
  2. 2 Whether the applicant has proved a claim against the respondent in terms of section 9(1) of the Insolvency Act.
  3. 3 Whether the applicant and respondent colluded to obtain the sequestration order.

Ratio Decidendi

The court found that the applicant failed to establish a prima facie claim against the respondent as required by section 9(1) of the Insolvency Act. The evidence indicated that the alleged loan was in fact a donation from father to son, with no intention or agreement for repayment. The application was a classic case of collusion, intended to frustrate the intervening creditor's execution of judgment. The applicant did not provide credible evidence of a loan, nor did he calculate the advantage to creditors in his founding affidavit. Asset valuations were unsupported and inadmissible. As the applicant failed to discharge his onus, all other issues became moot. The application was dismissed...

Court Disposition

Application dismissed with costs on an attorney and client scale, including costs incurred by the intervening creditor in the application for leave to intervene.

Orders

  • The application is dismissed.
  • Costs are awarded to the intervening creditor on an attorney and client scale, including costs incurred by the intervening creditor in the application for leave to intervene.