Telecom Namibia Ltd v Ganes and Another (6266/01) [2001] ZAWCHC 9 (29 October 2001)

Telecom Namibia Ltd v Ganes and Another (6266/01) [2001] ZAWCHC 9 (29 October 2001)

The court found that the applicant had sufficiently established authorisation to institute the sequestration proceedings, as the founding affidavit contained the necessary allegation and the respondents' challenge was weak. The court held that paragraph 12.3 of the replying affidavit introduced a new cause of action based on an act of insolvency, which was impermissible and must be struck out. However, other new material in the replying affidavit was either permissible as a response to the answering affidavit or, if new, could be allowed at the court's discretion, provided the respondents were given an opportunity to respond. The court exercised its discretion to allow the respondents to...

Citation
[2001] ZAWCHC 9
Parties
Applicant: Telecom Namibia Ltd; Respondent: Lutchman Ivan Ganes; Respondent: Lynnette Gayle Ganes
Court
Western Cape High Court, Cape Town
Jurisdiction
South Africa
Judgment Date
29 October 2001
Case Number
6266/01
Procedural Posture
Sequestration Application / Final Order and Interlocutory Rulings
Outcome
The application for final sequestration was granted; the point in limine regarding authorisation was dismissed; paragraph 12.3 of the replying affidavit was struck out; other applications to strike out were dismissed, with leave for respondents to file further affidavits.
Judges
Knoll, A C Oosthuizen
Legal Topics
Company Authorisation, Sequestration Procedure, Striking Out Affidavit, Acts of Insolvency
Civil Procedure Commercial and Corporate Company Authorisation Sequestration Procedure Striking Out Affidavit Acts of Insolvency

Case Brief

Summary, issues, holding and outcome

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Parties

Telecom Namibia Ltd

Applicant

Lutchman Ivan Ganes

Respondent

Lynnette Gayle Ganes

Respondent

Procedural Posture

Sequestration Application / Final Order and Interlocutory Rulings

Legal Issues

  1. 1 Whether the applicant established proper authorisation to institute the sequestration proceedings.
  2. 2 Whether new causes of action may be introduced in replying affidavits.
  3. 3 Whether certain paragraphs in the replying affidavit should be struck out as impermissible new matter.

Ratio Decidendi

The court found that the applicant had sufficiently established authorisation to institute the sequestration proceedings, as the founding affidavit contained the necessary allegation and the respondents' challenge was weak. The court held that paragraph 12.3 of the replying affidavit introduced a new cause of action based on an act of insolvency, which was impermissible and must be struck out. However, other new material in the replying affidavit was either permissible as a response to the answering affidavit or, if new, could be allowed at the court's discretion, provided the respondents were given an opportunity to respond. The court exercised its discretion to allow the respondents to...

Court Disposition

The application for final sequestration was granted; the point in limine regarding authorisation was dismissed; paragraph 12.3 of the replying affidavit was struck out; other applications to strike out were dismissed, with leave for respondents to file further affidavits.

Orders

  • The rule nisi granted on 12 July 2001 is made absolute and the estates of the first and second respondents are placed under final sequestration.
  • The costs incurred by the applicant, including costs of interlocutory applications, hearings and postponements, are to be costs in the sequestration and include costs for two counsel.