Ex parte: Smith (991/12) [2013] ZANWHC 26 (7 March 2013)
The court found that the applicant had not made out a case that the voluntary surrender of her estate would benefit creditors, as required by law. The application for postponement was an admission of the application's flaws and did not include a tender for wasted costs. The absence of heads of argument and the...
Source-derived case information.
- Citation
- [2013] ZANWHC 26
- Parties
- Applicant: Elsabi Cornelia Smit; Respondent: Nedbank Ltd
- Court
- North West High Court, Mafikeng
- Jurisdiction
- South Africa
- Case Number
- 991/12
- Procedural Posture
- Ex Parte Application / Application for Voluntary Surrender of Estate; Application for Postponement
- Outcome
- Application for postponement refused; application struck off the roll with costs.
- Judges
- A A Landman
- Legal Topics
- Voluntary Surrender of Estate, Postponement of Application, Creditor Intervention
Source-derived case record
Summary, issues, holding and outcome
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Parties
Elsabi Cornelia Smit
Applicant
Nedbank Ltd
Respondent
Procedural Posture
Ex Parte Application / Application for Voluntary Surrender of Estate; Application for Postponement
Legal Issues
- 1 Whether the applicant has made out a case for the voluntary surrender of her estate.
- 2 Whether the application for postponement should be granted.
- 3 Whether the matter should be struck from the roll with costs.
Ratio Decidendi
The court found that the applicant had not made out a case that the voluntary surrender of her estate would benefit creditors, as required by law. The application for postponement was an admission of the application's flaws and did not include a tender for wasted costs. The absence of heads of argument and the failure to address the substantive requirements led the court to refuse the postponement and strike the matter from the roll with costs, in accordance with the court's practice directions.
Court Disposition
Application for postponement refused; application struck off the roll with costs.
Orders
- The application for a postponement is refused.
- The application is struck off the roll with costs, which are to be immediately taxable and payable before re-enrolment.
Full Case Text
Judgment text and source record
30 paragraphs
IN THE NORTH WEST HIGH COURT
(MAFIKENG)
CASE NO.: 991/12
In the matter between:
ELSABI CORNELIA SMIT ...........................................................APPLICANT
EX PARTE APPLICATION
________________________________________________________________
JUDGMENT
LANDMAN J:
[1] The application of Mrs E C Smit for the voluntary surrender of her estate has been on the roll since 5 July 2012. It has been postponed seven times. On the last occasion leave was granted to Nedbank Ltd to intervene and once again postponed for the hearing of Nedbank’s application.
[2] The rules required the parties to file heads of argument. The heads of Mr PJS Smit, who appeared for Nedbank, have been filed. No heads of argument were filed on behalf of the applicant. However, an application for a postponement of the application until 25 April 2013 was delivered on 26 February. The reasons for the postponement are said to be:
1. To enable said transfer to occur;
2. To enable the parties involved to re-evaluate their respective positions;
3. Filing of any additional affidavits and documentation and regarding the aforementioned; and
4. Filing of Heads of Argument once transfer of the property has occurred.
[3] The application for postponement is intended to rectify the application which is flawed. It amounts to an admission that the applicant has not made out a case that the surrender of the estate will benefit the creditors. This is sufficient reason for refusing a postponement. Another is the absence of a tender of the wasted costs. The postponement is refused.
[4] The applicant did not file heads of argument. The remaining question is whether I should grant Nedbank all the relief which it seeks or whether I should simply act in accordance with the practice directions of this court and strike the matter from the roll with an appropriate order for costs. I am of the view that this is what should be done.
[5] In the result I make the following order:
1. The application for a postponement is refused.
2. The application is struck off the roll with costs. These costs are to be immediately taxable and payable and are to be paid before the application may be re-enrolled.
3. The application may not be enrolled unless accompanied by a substantive application for enrolment.
A A LANDMAN
JUDGE OF THE HIGH COURT
APPEARANCES:
date of hearing : 28 February 2013
date of judgment : 07 March 2013
counsel for applicant : adv c j zwiegelaar
counsel for intervening creditor : adv p s j smit
attorneys for applicant : d c kruger attorneys
attorneys for intervening creditor : herman scholtz attorneys