Spendiff NO v Kolektor (Pty) Ltd. (267/91) [1992] ZASCA 18; 1992 (2) SA 537 (AD); [1992] 2 All SA 50 (A) (12 March 1992)

Spendiff NO v Kolektor (Pty) Ltd. (267/91) [1992] ZASCA 18; 1992 (2) SA 537 (AD); [1992] 2 All SA 50 (A) (12 March 1992)

The Supreme Court of Appeal held that the jurisdictional criteria in section 149(1) of the Insolvency Act do not determine which court has jurisdiction to set aside a disposition not made for value under section 26(1). The definition of 'court' in the Insolvency Act does not confer jurisdiction over third parties; rather, ordinary principles of jurisdiction apply, meaning the defendant must be sued in his forum or where the cause of action arose. The court rejected the appellant's arguments based on the Companies Act and common law, finding that neither the fact that the winding up order was granted by the Durban and Coast Local Division nor the provisions of the Companies Act conferred...

Citation
[1992] ZASCA 18
Parties
Appellant: Lloyd Edward Spendiff N.O.; Respondent: Kolektor (Proprietary) Limited
Court
Supreme Court of Appeal
Jurisdiction
South Africa
Judgment Date
12 March 1992
Case Number
267/91
Procedural Posture
Civil Appeal / Appeal Against Dismissal of Exception to Special Plea on Jurisdiction
Outcome
Appeal dismissed with costs.
Judges
Nestadt, Hoexter, Vivier, Milne, Goldstone
Legal Topics
Jurisdiction of Courts, Dispositions Without Value, Companies Act, Insolvency Act, Liquidation, Actor Sequitur Forum Rei
Civil Procedure Commercial and Corporate Jurisdiction of Courts Dispositions Without Value Companies Act Insolvency Act Liquidation Actor Sequitur Forum Rei

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Parties

Lloyd Edward Spendiff N.O.

Appellant

Kolektor (Proprietary) Limited

Respondent

Procedural Posture

Civil Appeal / Appeal Against Dismissal of Exception to Special Plea on Jurisdiction

Legal Issues

  1. 1 Whether the Durban and Coast Local Division had jurisdiction to entertain the claim to set aside a disposition without value under section 340(1) of the Companies Act and section 26(1) of the Insolvency Act.
  2. 2 Whether the definition of 'court' in the Insolvency Act confers jurisdiction over third parties in claims to set aside dispositions without value.
  3. 3 Whether section 12(1) of the Companies Act or common law principles confer jurisdiction on the trial court.

Ratio Decidendi

The Supreme Court of Appeal held that the jurisdictional criteria in section 149(1) of the Insolvency Act do not determine which court has jurisdiction to set aside a disposition not made for value under section 26(1). The definition of 'court' in the Insolvency Act does not confer jurisdiction over third parties; rather, ordinary principles of jurisdiction apply, meaning the defendant must be sued in his forum or where the cause of action arose. The court rejected the appellant's arguments based on the Companies Act and common law, finding that neither the fact that the winding up order was granted by the Durban and Coast Local Division nor the provisions of the Companies Act conferred...

Court Disposition

Appeal dismissed with costs.

Orders

  • The appeal is dismissed with costs.