Marcus and Another v Marcus and Another (26149/2011) [2012] ZAWCHC 87 (15 March 2012)

Marcus and Another v Marcus and Another (26149/2011) [2012] ZAWCHC 87 (15 March 2012)

The court found that the applicants had established a valid liquidated claim against the first respondent, confirmed by the accountant's affidavit. It was common cause that the first respondent was factually insolvent, satisfying the second requirement for provisional sequestration. The court considered the possibility of collusion in 'friendly' sequestrations but found no evidence of abuse of process, as the divorce proceedings could continue and the first respondent's insolvency was objectively proven. The court held that the payments made by the first respondent to the second respondent were not sufficiently explained as maintenance, raising a reasonable belief that impeachable...

Citation
[2012] ZAWCHC 87
Parties
Applicant: Ralph Michael Marcus; Applicant: Walter Marcus; Respondent: Kenneth Paul Marcus; Respondent: Jeanette Marcus (Formerly Curtiz, born Zinn)
Court
Western Cape High Court, Cape Town
Jurisdiction
South Africa
Judgment Date
15 March 2012
Case Number
26149/2011
Procedural Posture
Urgent Application / Application for Provisional Sequestration
Outcome
Provisional sequestration of the first respondent's estate granted.
Judges
Allie
Legal Topics
Provisional Sequestration, Insolvency Act, Voidable Preferences, Friendly Sequestration, Maintenance Obligations
Civil Procedure Commercial and Corporate Provisional Sequestration Insolvency Act Voidable Preferences Friendly Sequestration Maintenance Obligations

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Parties

Ralph Michael Marcus

Applicant

Walter Marcus

Applicant

Kenneth Paul Marcus

Respondent

Jeanette Marcus (Formerly Curtiz, born Zinn)

Respondent

Procedural Posture

Urgent Application / Application for Provisional Sequestration

Legal Issues

  1. 1 Whether the applicants have established a liquidated claim against the first respondent.
  2. 2 Whether the first respondent has committed an act of insolvency.
  3. 3 Whether there is reason to believe that sequestration will be to the advantage of creditors.

Ratio Decidendi

The court found that the applicants had established a valid liquidated claim against the first respondent, confirmed by the accountant's affidavit. It was common cause that the first respondent was factually insolvent, satisfying the second requirement for provisional sequestration. The court considered the possibility of collusion in 'friendly' sequestrations but found no evidence of abuse of process, as the divorce proceedings could continue and the first respondent's insolvency was objectively proven. The court held that the payments made by the first respondent to the second respondent were not sufficiently explained as maintenance, raising a reasonable belief that impeachable...

Court Disposition

Provisional sequestration of the first respondent's estate granted.

Orders

  • The estate of the first respondent is placed under provisional sequestration.
  • A rule nisi is issued calling upon the first respondent to show cause at 10h00 on Thursday, 19 April 2012 why his estate should not be placed under final sequestration and why the costs of this application should not be costs in the administration of his insolvent estate.