Thomas v Thomas and Another (2756/2018) [2020] ZANCHC 84 (13 November 2020)

Thomas v Thomas and Another (2756/2018) [2020] ZANCHC 84 (13 November 2020)

The court found that the applicant's right, title and interest in the pending litigation under case number 202/2003 was known to the trustees and creditors, who, by resolution and conduct, elected not to monetize or lay claim to it. The trustees excluded the asset from the Liquidation and Distribution Account and did not oppose the applicant's rehabilitation. The correspondence between the applicant's attorneys and the trustees confirmed the trustees' intention not to pursue the claim and advised the applicant to seek a declarator from the court. The court held that the trustees and creditors, by failing to act, waived any rights to the asset, and the applicant, now rehabilitated, is...

Citation
[2020] ZANCHC 84
Parties
Applicant: Barend Johannes Thomas; Respondent: James William Thomas; Respondent: Middelplaas-Suid Landgoed (Edms) Bpk
Court
Northern Cape High Court, Kimberley
Jurisdiction
South Africa
Judgment Date
13 November 2020
Case Number
2756/2018
Procedural Posture
Declaratory Application / Judgment
Outcome
Application granted. The applicant's right, title and interest in the action under case number 202/2003 does not form part of his insolvent estate and is revested in him.
Judges
Mamosebo
Legal Topics
Insolvent Estate Assets, Rehabilitation of Insolvent, Waiver of Rights, Vesting of Property
Civil Procedure Land and Property Insolvent Estate Assets Rehabilitation of Insolvent Waiver of Rights Vesting of Property

Case Brief

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Parties

Barend Johannes Thomas

Applicant

James William Thomas

Respondent

Middelplaas-Suid Landgoed (Edms) Bpk

Respondent

Procedural Posture

Declaratory Application / Judgment

Legal Issues

  1. 1 Whether the applicant's right, title and interest in the pending action under case number 202/2003 forms part of his insolvent estate.
  2. 2 Whether the trustees and creditors have waived their rights to claim the applicant's interest in the litigation.
  3. 3 Whether the applicant is entitled to pursue and enforce his right, title and interest in the action for his own benefit after rehabilitation.

Ratio Decidendi

The court found that the applicant's right, title and interest in the pending litigation under case number 202/2003 was known to the trustees and creditors, who, by resolution and conduct, elected not to monetize or lay claim to it. The trustees excluded the asset from the Liquidation and Distribution Account and did not oppose the applicant's rehabilitation. The correspondence between the applicant's attorneys and the trustees confirmed the trustees' intention not to pursue the claim and advised the applicant to seek a declarator from the court. The court held that the trustees and creditors, by failing to act, waived any rights to the asset, and the applicant, now rehabilitated, is...

Court Disposition

Application granted. The applicant's right, title and interest in the action under case number 202/2003 does not form part of his insolvent estate and is revested in him.

Orders

  • It is declared that the applicant's right, title and interest in the action instituted against the first defendant and Middelplaas-Suid Landgoed (Pty) Ltd under Case Number 202/2003 does not form part of the applicant's insolvent estate.
  • The applicant's creditors and the trustees of his insolvent estate have, by not laying claim thereto, waived all rights that they may have had in the applicant's right, title and interest in the said action.