Wessels NO v De Jager NO and Another (657/98) [2000] ZASCA 44; 2000 (4) SA 924 (SCA) ; [2000] 4 All SA 440 (A) (22 September 2000)

Wessels NO v De Jager NO and Another (657/98) [2000] ZASCA 44; 2000 (4) SA 924 (SCA) ; [2000] 4 All SA 440 (A) (22 September 2000)

The Supreme Court of Appeal held that the insolvent does not acquire a right to the insurance policy benefit or inheritance until he accepts the benefit. Prior to acceptance, he only has a competency, not a right, and this competency does not vest in the curator of the insolvent estate. The court found the appellant's argument that such a competency constitutes a right to be unfounded. The appeal was dismissed with costs, and a special costs order was made against the appellant for including unnecessary documents in the appeal record.

Citation
[2000] ZASCA 44
Parties
Appellant: GF Wessels NO; Respondent: CJ De Jager NO; Respondent: JF Peyper NO
Court
Supreme Court of Appeal
Jurisdiction
South Africa
Judgment Date
22 September 2000
Case Number
657/98
Procedural Posture
Civil Appeal / Appeal From the Free State Provincial Division
Outcome
Appeal dismissed with costs; special costs order against the appellant for unnecessary inclusion of documents.
Judges
Van Heerden, Smalberger, Olivier, Zulman, Farlam
Legal Topics
Insolvency Estate, Acceptance of Benefit, Intestate Succession, Insurance Policy Benefit
Civil Procedure Insolvency Estate Acceptance of Benefit Intestate Succession Insurance Policy Benefit

Case Brief

Summary, issues, holding and outcome

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Parties

GF Wessels NO

Appellant

CJ De Jager NO

Respondent

JF Peyper NO

Respondent

Procedural Posture

Civil Appeal / Appeal From the Free State Provincial Division

Legal Issues

  1. 1 Does the right to accept an insurance policy benefit or inheritance vest in the curator of an insolvent estate before the insolvent has accepted the benefit?
  2. 2 Is the power to accept such benefits a right or merely a competency that vests in the curator?
  3. 3 Should costs be awarded against the appellant for unnecessarily including irrelevant documents in the appeal record?

Ratio Decidendi

The Supreme Court of Appeal held that the insolvent does not acquire a right to the insurance policy benefit or inheritance until he accepts the benefit. Prior to acceptance, he only has a competency, not a right, and this competency does not vest in the curator of the insolvent estate. The court found the appellant's argument that such a competency constitutes a right to be unfounded. The appeal was dismissed with costs, and a special costs order was made against the appellant for including unnecessary documents in the appeal record.

Court Disposition

Appeal dismissed with costs; special costs order against the appellant for unnecessary inclusion of documents.

Orders

  • The appeal is dismissed with costs.
  • The appellant's attorneys may not recover any costs from the appellant attributable to the inclusion of volume 2 in the appeal record.