Ex parte: Dube and Another (14769/09) [2009] ZAKZDHC 64 (11 November 2009)
The court found that the Applicants failed to demonstrate that the application for voluntary surrender was primarily for the benefit of creditors. The calculated dividend to creditors was marginal and depended on uncertain asset values. The court was not satisfied that proper notification had been given to all...
Source-derived case information.
- Citation
- [2009] ZAKZDHC 64
- Parties
- Applicant: Sbusiso Victor Dube; Applicant: Lindokhule Ritta Dube
- Court
- Kwazulu-Natal High Court, Durban
- Jurisdiction
- South Africa
- Case Number
- 14769/09
- Procedural Posture
- Urgent Application / Application for Voluntary Surrender of Estate
- Outcome
- Application dismissed.
- Judges
- Marais
- Legal Topics
- Voluntary Surrender, Creditor Benefit, Notification to Creditors
Source-derived case record
Summary, issues, holding and outcome
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Parties
Sbusiso Victor Dube
Applicant
Lindokhule Ritta Dube
Applicant
Procedural Posture
Urgent Application / Application for Voluntary Surrender of Estate
Legal Issues
- 1 Whether the Applicants have satisfied the requirements for voluntary surrender of their estate.
- 2 Whether the application is motivated by the interests of creditors or by the Applicants' own difficulties.
- 3 Whether proper notification was given to all creditors, specifically the bondholder.
Ratio Decidendi
The court found that the Applicants failed to demonstrate that the application for voluntary surrender was primarily for the benefit of creditors. The calculated dividend to creditors was marginal and depended on uncertain asset values. The court was not satisfied that proper notification had been given to all creditors, specifically the bondholder, ABSA Bank Limited. The ambiguity in the supporting affidavit regarding notification further undermined the Applicants' case. The court concluded that the Applicants had not made out a case for the relief sought and dismissed the application.
Court Disposition
Application dismissed.
Orders
- The application for voluntary surrender of estate is dismissed.
Full Case Text
Judgment text and source record
24 paragraphs
IN THE KWAZULU-NATAL HIGH COURT, DURBAN
REPUBLIC OF SOUTH AFRICA
CASE NO: 14769/09
In the ex parte application of:
SBUSISO VICTOR DUBE First Applicant
LINDOKHULE RITTA DUBE Second Applicant
____________________________________________________________
JUDGMENT
PER MARAIS AJ
1. This is an application for the voluntary surrender of the Applicantâs estate.
2. As seems to be common with applications of this kind, the benefit to creditors is marginal. (Whilst the Applicants calculated a dividend of about R0.20 in the rand, to creditors, the achievement of this âbenefitâ depends largely upon the sale value of the immovable property owned by the parties and whether, in due course, the valuator will be shown accurately to have valued the property. The value of the unencumbered assets in the estate amount to no more than R6,700.00).
3. The Applicants managed to acquire immovable property with a current value of about R390 000.00 (on a mortgage bond with a current balance of about R285,000.00) and, according to the papers, seemed to manage comfortably until both, apparently, lost their employment last year. Notwithstanding this, the parties seemed to accumulate, on the papers, at least, only the bare necessities with negligible values.
4. The First Applicant explains that he is now employed and that his nett income amounts to R3,000.00. No further detail is given of the nature of his employment, nor is any salary advice put up to give support thereto.
5. There is indication in the papers that this application was, largely, motivated by the fact that the bondholder had taken a judgment against the Applicants and that it was about to sell the property in execution.
6. It would seem, therefore, that the application is motivated largely by the Applicantsâ concerns with their own difficulties and less concerned with the interests of creditors:
âThe machinery of voluntary surrender was primarily designed for the benefit of creditors, and not for the relief of harassed debtorsâ.
Ex Parte: Pillay 1955 (2) SA 309 N (at 311).
7. If the object with the application was primarily to avoid execution (as it might well be), this would indicate an ulterior motive which, in itself, constitutes a circumstance weighing against the exercise of my discretion in favour of the Applicants.
8. If these were the only circumstances of concern, I might (and I put it no higher) have lent the Applicants a more sympathetic ear. What does, however, concern me, in addition, is that the proof of postage of notification to creditors, does not, actually, reflect confirmation of notification (by registered post) to ABSA Bank Limited (the bondholder).
9. In his supporting affidavit, the Applicantsâ Attorneyâs statement about notification is ambiguous. In this affidavit reference is made back to the founding affidavit of the First Applicant, without any explanation of the apparent omission of notification to the bondholder.
10. In the circumstances I am not satisfied that a case has been made out for the relief sought. The application is, accordingly, dismissed.
_________________________
MARAIS AJ
11 NOVEMBER 2009