Pickford and Another v Engelbrecht NO and Others (8237/19) [2020] ZAWCHC 163 (18 November 2020)

Pickford and Another v Engelbrecht NO and Others (8237/19) [2020] ZAWCHC 163 (18 November 2020)

The court held that the applicants failed to establish any material non-compliance with the statutory requirements for recording the inquiry proceedings under s 65 of the Insolvency Act. The practice of arranging recording facilities by the party conducting the inquiry is lawful, and any alleged irregularity or intimidation by the presiding officer or interrogating attorney was not substantiated, especially as the applicants did not place the transcript before the court. The inquiry is an information-gathering process, not a decision-making proceeding, and cannot be set aside. The admissibility of the record or transcript in subsequent proceedings is a matter for the forum in which it is...

Citation
[2020] ZAWCHC 163
Parties
Applicant: Dealtry David Pickford; Applicant: Carey Ann Pickford; Respondent: Ryno Engelbrecht N.O.; Respondent: Yusuf Ebrahim N.O.; Respondent: Magistrate Donald Grobler N.O.; Respondent: The Master of the High Court, Cape Town
Court
Western Cape High Court, Cape Town
Jurisdiction
South Africa
Judgment Date
18 November 2020
Case Number
8237/19
Procedural Posture
Urgent Application / Judgment on Application for Interdict and Setting Aside of Inquiry Proceedings
Outcome
Application dismissed with costs, including wasted costs for the aborted hearing on 9 November 2020.
Judges
A.G. Binns-Ward
Legal Topics
Insolvency Act Section 65 Inquiry, Recording of Evidence, Admissibility of Evidence, Final Interdict, Onus of Proof
Civil Procedure Commercial and Corporate Insolvency Act Section 65 Inquiry Recording of Evidence Admissibility of Evidence Final Interdict Onus of Proof

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Parties

Dealtry David Pickford

Applicant

Carey Ann Pickford

Applicant

Ryno Engelbrecht N.O.

Respondent

Yusuf Ebrahim N.O.

Respondent

Magistrate Donald Grobler N.O.

Respondent

The Master of the High Court, Cape Town

Respondent

Procedural Posture

Urgent Application / Judgment on Application for Interdict and Setting Aside of Inquiry Proceedings

Legal Issues

  1. 1 Whether the inquiry proceedings under s 65 of the Insolvency Act were recorded in compliance with statutory requirements.
  2. 2 Whether any irregularity in the recording or conduct of the inquiry renders the proceedings void or inadmissible in subsequent litigation.
  3. 3 Whether the applicants are entitled to an interdict restraining use of the inquiry record in other proceedings.

Ratio Decidendi

The court held that the applicants failed to establish any material non-compliance with the statutory requirements for recording the inquiry proceedings under s 65 of the Insolvency Act. The practice of arranging recording facilities by the party conducting the inquiry is lawful, and any alleged irregularity or intimidation by the presiding officer or interrogating attorney was not substantiated, especially as the applicants did not place the transcript before the court. The inquiry is an information-gathering process, not a decision-making proceeding, and cannot be set aside. The admissibility of the record or transcript in subsequent proceedings is a matter for the forum in which it is...

Court Disposition

Application dismissed with costs, including wasted costs for the aborted hearing on 9 November 2020.

Orders

  • The application is dismissed.
  • The applicants shall be liable to pay the first and second respondents' costs of suit, including the wasted costs incurred in respect of the aborted hearing on 9 November 2020.