Hosking NO and Others v Coetzee NO and Others (499/2004) [2005] ZASCA 110 (25 November 2005)

Hosking NO and Others v Coetzee NO and Others (499/2004) [2005] ZASCA 110 (25 November 2005)

The Supreme Court of Appeal held that section 29(1) of the Insolvency Act is not unconstitutional. The provision reflects a legitimate legislative choice to protect the equitable distribution of assets among creditors in insolvency proceedings. The court found no merit in the argument that the burden of proof imposed on the defendant is impermissibly onerous or that impeaching dispositions based solely on their effect is constitutionally objectionable. The appellants failed to demonstrate how any rights protected by the Constitution are compromised by section 29(1). The appeal was accordingly dismissed with costs, including the costs of two counsel.

Citation
[2005] ZASCA 110
Parties
Appellant: Thomas Reginald Chowles Hosking N.O.; Appellant: Rudolph Eric Thomas Hosking N.O.; Appellant: Paul Michael Hosking N.O.; Appellant: William Henry Voysey N.O.; Appellant: Colleen Voysey N.O.; Appellant: Frederick Stemmet N.O.; Respondent: Sarel Albertus Coetzee N.O.; Respondent: Jacobus Marthinus Abraham Louw N.O.; Respondent: Douglas Johan Klerck N.O.; Respondent: David John Rennie N.O.; Respondent: Leslie Neil Sackstein N.O.; Respondent: Minister of Justice & Constitutional Development N.O.; Respondent: South African Law Commission
Court
Supreme Court of Appeal
Jurisdiction
South Africa
Judgment Date
25 November 2005
Case Number
499/2004
Procedural Posture
Civil Appeal / Appeal From High Court Judgment Dismissing Constitutional Challenge to S 29(1) of the Insolvency Act
Outcome
Appeal dismissed with costs, including costs of two counsel.
Judges
Howie, Zulman, Cameron, Nugent, Ponnan
Legal Topics
Voidable Preferences, Insolvency Act Section 29, Burden of Proof, Bill of Rights Limitation
Constitutional Law Banking and Finance Voidable Preferences Insolvency Act Section 29 Burden of Proof Bill of Rights Limitation

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 3 Authorities cited 3 Party arguments 2 Amounts and remedies 2
Sign in to unlock

Parties

Thomas Reginald Chowles Hosking N.O.

Appellant

Rudolph Eric Thomas Hosking N.O.

Appellant

Paul Michael Hosking N.O.

Appellant

William Henry Voysey N.O.

Appellant

Colleen Voysey N.O.

Appellant

Frederick Stemmet N.O.

Appellant

Sarel Albertus Coetzee N.O.

Respondent

Jacobus Marthinus Abraham Louw N.O.

Respondent

Douglas Johan Klerck N.O.

Respondent

David John Rennie N.O.

Respondent

Leslie Neil Sackstein N.O.

Respondent

Minister of Justice & Constitutional Development N.O.

Respondent

South African Law Commission

Respondent

Procedural Posture

Civil Appeal / Appeal From High Court Judgment Dismissing Constitutional Challenge to S 29(1) of the Insolvency Act

Legal Issues

  1. 1 Whether section 29(1) of the Insolvency Act 24 of 1936 is unconstitutional.
  2. 2 Whether the burden of proof imposed on the defendant under section 29(1) is impermissibly onerous.
  3. 3 Whether impeaching dispositions based solely on their effect, absent debtor intent, is constitutionally valid.

Ratio Decidendi

The Supreme Court of Appeal held that section 29(1) of the Insolvency Act is not unconstitutional. The provision reflects a legitimate legislative choice to protect the equitable distribution of assets among creditors in insolvency proceedings. The court found no merit in the argument that the burden of proof imposed on the defendant is impermissibly onerous or that impeaching dispositions based solely on their effect is constitutionally objectionable. The appellants failed to demonstrate how any rights protected by the Constitution are compromised by section 29(1). The appeal was accordingly dismissed with costs, including the costs of two counsel.

Court Disposition

Appeal dismissed with costs, including costs of two counsel.

Orders

  • The appeal is dismissed.
  • The appellants are ordered to pay the costs of the appeal, including the costs of two counsel.