Van Zyl and Another v Kolsch (23207/2014) [2018] ZAGPJHC 115 (18 April 2018)

Van Zyl and Another v Kolsch (23207/2014) [2018] ZAGPJHC 115 (18 April 2018)

The court found that the payments made by Pinnacle Point Investments (Pty) Ltd to Marie-May Kolsch, either to her personal account or the Seychelles Consulate account, were dispositions without value as defined in section 26 of the Insolvency Act. The forensic and documentary evidence established that PPI was insolvent at all relevant times and did not receive adequate benefit or contractual consideration for the payments. Kolsch failed to discharge the onus of proving consular immunity, as she did not testify or provide evidence that the payments were made in the exercise of consular functions. The Vienna Convention does not protect private gainful activities, and the administration of...

Citation
[2018] ZAGPJHC 115
Parties
Plaintiff: Christopher Peter Van Zyl N.O.; Plaintiff: Zimkitha Honjiswa Ngogodo N.O.; Defendant: Marie-May Kolsch
Court
South Gauteng High Court, Johannesburg
Jurisdiction
South Africa
Judgment Date
18 April 2018
Case Number
23207/2014
Procedural Posture
Civil Action / Trial Judgment
Outcome
Plaintiffs succeed; dispositions set aside; defendant ordered to repay specified amounts and costs.
Judges
C.H. Nicholls
Legal Topics
Insolvency Act Section 26, Dispositions Without Value, Liquidation, Diplomatic Immunity, Onus of Proof
Civil Procedure Commercial and Corporate Insolvency Act Section 26 Dispositions Without Value Liquidation Diplomatic Immunity Onus of Proof

Case Brief

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Parties

Christopher Peter Van Zyl N.O.

Plaintiff

Zimkitha Honjiswa Ngogodo N.O.

Plaintiff

Marie-May Kolsch

Defendant

Procedural Posture

Civil Action / Trial Judgment

Legal Issues

  1. 1 Whether payments made by Pinnacle Point Investments (Pty) Ltd to Marie-May Kolsch constituted dispositions without value under section 26 of the Insolvency Act.
  2. 2 Whether Kolsch was entitled to diplomatic or consular immunity under the Vienna Convention on Consular Relations for the payments received.
  3. 3 Whether the liquidators proved that PPI was insolvent at the time of the dispositions and that no value was received for the payments.

Ratio Decidendi

The court found that the payments made by Pinnacle Point Investments (Pty) Ltd to Marie-May Kolsch, either to her personal account or the Seychelles Consulate account, were dispositions without value as defined in section 26 of the Insolvency Act. The forensic and documentary evidence established that PPI was insolvent at all relevant times and did not receive adequate benefit or contractual consideration for the payments. Kolsch failed to discharge the onus of proving consular immunity, as she did not testify or provide evidence that the payments were made in the exercise of consular functions. The Vienna Convention does not protect private gainful activities, and the administration of...

Court Disposition

Plaintiffs succeed; dispositions set aside; defendant ordered to repay specified amounts and costs.

Orders

  • The dispositions marked 'N1' and 'N2' on annexure POC1 are set aside.
  • Defendant is ordered to pay plaintiffs R1,030,000 plus interest a tempore morae.