Von Wielligh Bester N.O. and Others v Merchant Commercial Finance and Others (16211/13) [2014] ZAWCHC 16 (18 February 2014)

Von Wielligh Bester N.O. and Others v Merchant Commercial Finance and Others (16211/13) [2014] ZAWCHC 16 (18 February 2014)

The court held that evidence given by Kaye at the commission of enquiry is not admissible against the respondent in these proceedings. The applicant failed to lay a proper basis for the admission of hearsay evidence under section 3(1)(c) of the Law of Evidence Amendment Act. The court was not persuaded that admitting the evidence would be in the interests of justice. Consequently, the portions of the affidavits relying on such evidence were struck out, and costs were awarded against the applicant for the application to strike out.

Citation
[2014] ZAWCHC 16
Parties
Applicant: Lambertus Von Wielligh Bester N.O.; Applicant: Kgashone Christopher Monyela N.O.; Applicant: Bethuel Billyboy Mahlatsi N.O.; Applicant: Vincemus Investments (Pty) Limited t/a Kempston Finance; Respondent: Merchant Commercial Finance (Pty) Limited t/a Merchant Factors; Respondent: Taxi Trucks Logistics (Pty) Limited (in liquidation)
Court
Western Cape High Court, Cape Town
Jurisdiction
South Africa
Judgment Date
18 February 2014
Case Number
16211/13
Procedural Posture
Urgent Application / Application to Strike Out Inadmissible Evidence in Urgent Proceedings
Outcome
Application to strike out inadmissible evidence granted; costs awarded against the applicant.
Judges
Griesel
Legal Topics
Admissibility of Evidence, Insolvency Act Section 31, Hearsay Evidence, Liquidation Proceedings
Civil Procedure Commercial and Corporate Admissibility of Evidence Insolvency Act Section 31 Hearsay Evidence Liquidation Proceedings

Case Brief

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Parties

Lambertus Von Wielligh Bester N.O.

Applicant

Kgashone Christopher Monyela N.O.

Applicant

Bethuel Billyboy Mahlatsi N.O.

Applicant

Vincemus Investments (Pty) Limited t/a Kempston Finance

Applicant

Merchant Commercial Finance (Pty) Limited t/a Merchant Factors

Respondent

Taxi Trucks Logistics (Pty) Limited (in liquidation)

Respondent

Procedural Posture

Urgent Application / Application to Strike Out Inadmissible Evidence in Urgent Proceedings

Legal Issues

  1. 1 Whether evidence given at a commission of enquiry is admissible against a respondent in subsequent civil proceedings.
  2. 2 Whether the applicant may rely on extracts from commission evidence to prove collusive dealings under section 31(1) of the Insolvency Act.
  3. 3 Whether the applicant laid a proper basis for admission of hearsay evidence under section 3(1)(c) of the Law of Evidence Amendment Act.

Ratio Decidendi

The court held that evidence given by Kaye at the commission of enquiry is not admissible against the respondent in these proceedings. The applicant failed to lay a proper basis for the admission of hearsay evidence under section 3(1)(c) of the Law of Evidence Amendment Act. The court was not persuaded that admitting the evidence would be in the interests of justice. Consequently, the portions of the affidavits relying on such evidence were struck out, and costs were awarded against the applicant for the application to strike out.

Court Disposition

Application to strike out inadmissible evidence granted; costs awarded against the applicant.

Orders

  • Paragraphs 66 (and annexure FA21), 67, 68 (and annexure FA22), 81, 82, 89, 90 and 92 of the founding affidavit, as well as paragraphs 101, 103, 141.1 and 149 of the replying affidavit are struck out.
  • The fourth applicant is ordered to pay the costs of the application to strike out insofar as it relates to the inadmissible evidence, including the costs of two counsel.