Thomas and Another v Thomas (1223/2021) [2023] ZASCA 36; 2023 (4) SA 107 (SCA) (31 March 2023)

Thomas and Another v Thomas (1223/2021) [2023] ZASCA 36; 2023 (4) SA 107 (SCA) (31 March 2023)

The Supreme Court of Appeal held that the respondent's right of action, being an incorporeal asset, vested in the trustees upon sequestration. The trustees, having been authorised, abandoned the right of action. The effect of such abandonment is the extinguishing of the right; it does not survive for the rehabilitated insolvent to claim or pursue. The distinction drawn in Van Der Merwe, Ex Parte, regarding corporeal property becoming res nullius upon abandonment, does not apply to incorporeal rights of action. The high court erred in granting the declaratory relief to the respondent, as the right of action had ceased to exist upon abandonment by the trustees. Section 129 of the Insolvency...

Citation
[2023] ZASCA 36
Parties
Appellant: James William Thomas; Appellant: Middelplaas-Suid Landgoed (Edms) Bpk; Respondent: Barend Johannes Thomas
Court
Supreme Court of Appeal
Jurisdiction
South Africa
Judgment Date
31 March 2023
Case Number
1223/2021
Procedural Posture
Civil Appeal / Appeal From Northern Cape Division of the High Court, Kimberley
Outcome
Appeal upheld; application dismissed with costs.
Judges
Van Der Merwe, Mocumie, Nicholls, Mothle, Matojane
Legal Topics
Insolvency Act, Sequestration, Abandonment of Right of Action, Rehabilitation of Insolvent, Movable Property Definition
Land and Property Civil Procedure Insolvency Act Sequestration Abandonment of Right of Action Rehabilitation of Insolvent Movable Property Definition

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Parties

James William Thomas

Appellant

Middelplaas-Suid Landgoed (Edms) Bpk

Appellant

Barend Johannes Thomas

Respondent

Procedural Posture

Civil Appeal / Appeal From Northern Cape Division of the High Court, Kimberley

Legal Issues

  1. 1 Whether the respondent's right of action against the appellants formed part of his insolvent estate and could be claimed after rehabilitation.
  2. 2 What is the legal effect of the trustees' abandonment of the right of action in the insolvent estate.
  3. 3 Whether the respondent was entitled to pursue the right of action after rehabilitation.

Ratio Decidendi

The Supreme Court of Appeal held that the respondent's right of action, being an incorporeal asset, vested in the trustees upon sequestration. The trustees, having been authorised, abandoned the right of action. The effect of such abandonment is the extinguishing of the right; it does not survive for the rehabilitated insolvent to claim or pursue. The distinction drawn in Van Der Merwe, Ex Parte, regarding corporeal property becoming res nullius upon abandonment, does not apply to incorporeal rights of action. The high court erred in granting the declaratory relief to the respondent, as the right of action had ceased to exist upon abandonment by the trustees. Section 129 of the Insolvency...

Court Disposition

Appeal upheld; application dismissed with costs.

Orders

  • The appeal is upheld with costs.
  • The order of the court a quo is set aside and substituted with: 'The application is dismissed with costs.'