Oosthuizen v Steyn (238969/2019) [2020] ZAGPPHC 161; 2021 (4) SA 307 (GP) (14 May 2020)

Oosthuizen v Steyn (238969/2019) [2020] ZAGPPHC 161; 2021 (4) SA 307 (GP) (14 May 2020)

The court found that the applicant's founding affidavit was not properly commissioned, as the commissioner of oaths used the incorrect gender pronoun, creating uncertainty as to whether the deponent appeared in person. The applicant, being an attorney, was expected to comply meticulously with procedural requirements and failed to provide an explanation for the irregularity. The court exercised its discretion not to condone the non-compliance, upholding the first point in limine. The second point in limine regarding service on employees was dismissed as a technical defence, following constitutional and appellate authority. As the affidavit was fatally defective, the application was...

Citation
[2020] ZAGPPHC 161
Parties
Applicant: Elizabeth Oosthuizen; Respondent: Vanessa Steyn
Court
North Gauteng High Court, Pretoria
Jurisdiction
South Africa
Judgment Date
14 May 2020
Case Number
238969/2019
Procedural Posture
Urgent Application / Application for Provisional Sequestration; Opposed Motion
Outcome
Application dismissed with costs on attorney and client scale due to fatally defective affidavit.
Judges
N M Mavundla
Legal Topics
Provisional Sequestration, Act of Insolvency, Affidavit Commissioning Irregularity, Creditor Benefit, Costs Award
Civil Procedure Banking and Finance Provisional Sequestration Act of Insolvency Affidavit Commissioning Irregularity Creditor Benefit Costs Award

Case Brief

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Parties

Elizabeth Oosthuizen

Applicant

Vanessa Steyn

Respondent

Procedural Posture

Urgent Application / Application for Provisional Sequestration; Opposed Motion

Legal Issues

  1. 1 Whether the applicant's founding affidavit was properly commissioned in compliance with the regulations governing the administration of oaths.
  2. 2 Whether non-compliance with section 9(4A)(a)(ii) of the Insolvency Act regarding service on employees is fatal to the application.
  3. 3 Whether the respondent is factually insolvent and whether sequestration would be to the benefit of creditors.

Ratio Decidendi

The court found that the applicant's founding affidavit was not properly commissioned, as the commissioner of oaths used the incorrect gender pronoun, creating uncertainty as to whether the deponent appeared in person. The applicant, being an attorney, was expected to comply meticulously with procedural requirements and failed to provide an explanation for the irregularity. The court exercised its discretion not to condone the non-compliance, upholding the first point in limine. The second point in limine regarding service on employees was dismissed as a technical defence, following constitutional and appellate authority. As the affidavit was fatally defective, the application was...

Court Disposition

Application dismissed with costs on attorney and client scale due to fatally defective affidavit.

Orders

  • The application for provisional sequestration is dismissed.
  • The applicant is ordered to pay the costs of the application on an attorney and client scale.