Strydom N.O and Others v Bennet N.O and Others (53908/2016) [2019] ZAGPPHC 432 (18 September 2019)

Strydom N.O and Others v Bennet N.O and Others (53908/2016) [2019] ZAGPPHC 432 (18 September 2019)

The court found that the applicants failed to establish a liquidated claim against the Trust, as required for sequestration. The alleged claim was speculative and not substantiated on the papers. The applicants' arguments regarding the disposal of property and the validity of the trust deed variation were mutually destructive and unsupported by the founding affidavit. Even if the variation and appointment of trustees were invalid, this would not justify sequestration but might give rise to other remedies. The court held that there was no reasonable prospect that another court would reach a different conclusion and dismissed the application for leave to appeal.

Citation
[2019] ZAGPPHC 432
Parties
Applicant: P H Strydom N.O.; Applicant: Marthinus Jacobus Dewal Breytenbach N.O.; Applicant: Haroon Abdool Satar Moosa N.O.; Respondent: G S Bennet N.O.; Respondent: Roxanne Bennet N.O.; Respondent: Magdalena Rachel Engelbrecht N.O.
Court
North Gauteng High Court, Pretoria
Jurisdiction
South Africa
Judgment Date
18 September 2019
Case Number
53908/2016
Procedural Posture
Leave to Appeal / Application for Leave to Appeal Following Dismissal of Sequestration Application
Outcome
Application for leave to appeal dismissed with costs.
Judges
S Kuny
Legal Topics
Sequestration, Liquidated Claim, Trust Property Control Act, Act of Insolvency, Variation of Trust Deed
Civil Procedure Land and Property Sequestration Liquidated Claim Trust Property Control Act Act of Insolvency Variation of Trust Deed

Case Brief

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Parties

P H Strydom N.O.

Applicant

Marthinus Jacobus Dewal Breytenbach N.O.

Applicant

Haroon Abdool Satar Moosa N.O.

Applicant

G S Bennet N.O.

Respondent

Roxanne Bennet N.O.

Respondent

Magdalena Rachel Engelbrecht N.O.

Respondent

Procedural Posture

Leave to Appeal / Application for Leave to Appeal Following Dismissal of Sequestration Application

Legal Issues

  1. 1 Whether the applicants established a liquidated claim against the DVB House Trust sufficient to justify sequestration.
  2. 2 Whether the variation of the trust deed and appointment of new trustees constituted a disposal of property amounting to an act of insolvency under section 8(c) of the Insolvency Act.
  3. 3 Whether the variation of the trust deed and replacement of trustees was valid and its impact on the sequestration application.

Ratio Decidendi

The court found that the applicants failed to establish a liquidated claim against the Trust, as required for sequestration. The alleged claim was speculative and not substantiated on the papers. The applicants' arguments regarding the disposal of property and the validity of the trust deed variation were mutually destructive and unsupported by the founding affidavit. Even if the variation and appointment of trustees were invalid, this would not justify sequestration but might give rise to other remedies. The court held that there was no reasonable prospect that another court would reach a different conclusion and dismissed the application for leave to appeal.

Court Disposition

Application for leave to appeal dismissed with costs.

Orders

  • The application for leave to appeal is dismissed.
  • The applicants are ordered to pay the costs of the application.