Van Den Heever NO v Klara NO and Others (317/2007) [2009] ZAGPPHC 8 (18 March 2009)

Van Den Heever NO v Klara NO and Others (317/2007) [2009] ZAGPPHC 8 (18 March 2009)

The court held that the membership interest in Seagate Technologies CC, previously held by Lionel Greenberg, forms part of his insolvent estate and must be dealt with in the winding-up of the estate. The purported transfers of the membership interest by Lionel Greenberg and Esther Greenberg were invalid due to the attachment and subsequent sequestration. The sheriff's sale in execution did not result in valid transfer until the sheriff acted, and even then, the effect of sequestration was to vest the asset in the insolvent estate. The arguments based on indemnity, prescription, and approbate/reprobate were rejected as inapplicable or unsupported by facts or law. The Registrar of Close...

Citation
[2009] ZAGPPHC 8
Parties
Applicant: Theodor Wilhelm Van Den Heever N.O.; Respondent: Hazel Klara Ucko-Stein N.O.; Respondent: Felicia Dora Greenberg; Respondent: Seagate Technologies CC; Respondent: Sheriff of the High Court, Germiston North; Respondent: Registrar of Close Corporations; Respondent: Lionel Mervin Greenberg
Court
North Gauteng High Court, Pretoria
Jurisdiction
South Africa
Judgment Date
18 March 2009
Case Number
317/2007
Procedural Posture
Civil Application / Final Hearing and Judgment
Outcome
Application granted. Declaratory and mandatory orders issued in favour of the applicant.
Judges
B.R. Southwood
Legal Topics
Insolvent Estate Members Interest, Close Corporation Membership, Sale in Execution, Sequestration Effects, Prescription Act, Attachment of Property
Civil Procedure Commercial and Corporate Insolvent Estate Members Interest Close Corporation Membership Sale in Execution Sequestration Effects Prescription Act Attachment of Property

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Parties

Theodor Wilhelm Van Den Heever N.O.

Applicant

Hazel Klara Ucko-Stein N.O.

Respondent

Felicia Dora Greenberg

Respondent

Seagate Technologies CC

Respondent

Sheriff of the High Court, Germiston North

Respondent

Registrar of Close Corporations

Respondent

Lionel Mervin Greenberg

Respondent

Procedural Posture

Civil Application / Final Hearing and Judgment

Legal Issues

  1. 1 Whether the membership interest held by Lionel Mervin Greenberg in Seagate Technologies CC forms part of his insolvent estate.
  2. 2 Whether the membership interest is to be dealt with in the winding-up of the insolvent estate.
  3. 3 Whether the Registrar of Close Corporations must amend records to reflect Lionel Greenberg as sole member.

Ratio Decidendi

The court held that the membership interest in Seagate Technologies CC, previously held by Lionel Greenberg, forms part of his insolvent estate and must be dealt with in the winding-up of the estate. The purported transfers of the membership interest by Lionel Greenberg and Esther Greenberg were invalid due to the attachment and subsequent sequestration. The sheriff's sale in execution did not result in valid transfer until the sheriff acted, and even then, the effect of sequestration was to vest the asset in the insolvent estate. The arguments based on indemnity, prescription, and approbate/reprobate were rejected as inapplicable or unsupported by facts or law. The Registrar of Close...

Court Disposition

Application granted. Declaratory and mandatory orders issued in favour of the applicant.

Orders

  • It is declared that the membership interest held by Lionel Mervin Greenberg in Seagate Technologies CC forms part of the insolvent estate of Lionel Mervin Greenberg.
  • It is declared that the members interest of Lionel Mervin Greenberg in Seagate Technologies CC is to be dealt with in the winding-up of the affairs of the insolvent estate of Lionel Mervin Greenberg.