Kevin & Lasia Property Investments CC and Another v Roos NO and Others (480/2002) [2003] ZASCA 149; [2004] 1 All SA 380 (SCA); 2004 (4) SA 103 (SCA) (1 December 2003)

Kevin & Lasia Property Investments CC and Another v Roos NO and Others (480/2002) [2003] ZASCA 149; [2004] 1 All SA 380 (SCA); 2004 (4) SA 103 (SCA) (1 December 2003)

The Supreme Court of Appeal held that the admission by the appellants regarding the company's status as a trader was not binding and could be withdrawn on appeal, as it was made in the context of argument and did not prejudice the liquidators. The Court found that the lower court erred in refusing leave to appeal on...

Source-derived case information.

Citation
[2003] ZASCA 149
Parties
Appellant: Kevin & Lasia Property Investments CC; Appellant: ABSA Bank Limited; Respondent: Anton Roos N.O.; Respondent: P B van Rooyen N.O.; Respondent: Registrar of Deeds Pretoria
Court
Supreme Court of Appeal
Jurisdiction
South Africa
Judgment Date
1 December 2003
Case Number
480/2002
Procedural Posture
Civil Appeal / Appeal From the Transvaal Provincial Division; Application for Leave to Appeal and Substantive Appeal
Outcome
Appeal upheld; order of the court below set aside; matter remitted for further determination.
Judges
Howie, Navsa, Mthiyane, Cloete, Lewis
Legal Topics
Insolvency Act Section 34, Definition of Trader, Voidable Transfer, Liquidation Procedure
Civil Procedure Banking and Finance Insolvency Act Section 34 Definition of Trader Voidable Transfer Liquidation Procedure

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Summary, issues, holding and outcome

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Parties

Kevin & Lasia Property Investments CC

Appellant

ABSA Bank Limited

Appellant

Anton Roos N.O.

Respondent

P B van Rooyen N.O.

Respondent

Registrar of Deeds Pretoria

Respondent

Procedural Posture

Civil Appeal / Appeal From the Transvaal Provincial Division; Application for Leave to Appeal and Substantive Appeal

Legal Issues

  1. 1 Whether the company was a 'trader' as defined in section 2 of the Insolvency Act.
  2. 2 Whether the transfer of immovable property occurred in the ordinary course of business under section 34(1) of the Insolvency Act.
  3. 3 Whether the admission made by the appellants regarding the company's status as a trader could be withdrawn on appeal.

Ratio Decidendi

The Supreme Court of Appeal held that the admission by the appellants regarding the company's status as a trader was not binding and could be withdrawn on appeal, as it was made in the context of argument and did not prejudice the liquidators. The Court found that the lower court erred in refusing leave to appeal on the trader issue and that the definition of 'trader' in section 2 of the Insolvency Act does not automatically include a company whose sole business is the letting of immovable property. The matter was remitted to the lower court for further factual determination as to whether the company was a trader within the meaning of the Act, and the costs of the application were made...

Court Disposition

Appeal upheld; order of the court below set aside; matter remitted for further determination.

Orders

  • Leave to appeal on the question whether the company was a trader as defined in section 2 of the Insolvency Act is granted.
  • The appeal succeeds with costs, including the costs of two counsel for ABSA.