South Africa Case Law

De Magalhaes v Christensen N.O. and Another (2020/13195)

De Magalhaes v Christensen N.O. and Another (2020/13195) [2022] ZAGPJHC 504 (27 July 2022)

Court

South Gauteng High Court, Johannesburg

Case number

2020/13195

Judge

Maier-Frawley

The applicant failed to prove valid title to the disability policy benefit funds, as the policy owner and beneficiary was the insolvent, and no cession to the applicant was established. However, the court found that section 63 of the Long Term Insurance Act protects such policy benefits from attachment, and this protection survives transfer to the spouse whose disability triggered the benefit. Regarding the proceeds from the sale of the Simons Town property, the applicant provided sufficient documentary evidence and unrefuted testimony of ownership and acquisition with her own funds, despite…

Source excerpt

• Insolvency Act Section 21
• Long Term Insurance Act Section 63
• Onus Of Proof
• Release Of Attached Property
• Commixtio
• Ownership Of Sale Proceeds

Augostine v Haywood N.O and Others (3635/2018)

Augostine v Haywood N.O and Others (3635/2018) [2019] ZALMPPHC 58 (6 December 2019)

Court

Limpopo High Court, Polokwane

Case number

3635/2018

Judge

E M Makgoba

The court dismissed a solvent spouse’s claim to release immovable property under section 21 of the Insolvency Act, but ordered release of movable household assets.

• Insolvency Act Section 21
• Release Of Property
• Onus Of Proof
• Valid Title Against Creditors
• Movable And Immovable Property
• Insolvency-act-section-21

Davies v Van den Heever NO (16865/17)

Davies v Van den Heever NO (16865/17) [2019] ZAGPJHC 59 (1 March 2019)

Court

South Gauteng High Court, Johannesburg

Case number

16865/17

Judge

Molahlehi

The High Court released a married woman’s Oaklands property and contents from her husband’s insolvent estate after finding she proved valid ownership.

• Insolvency Act Section 21
• Release Of Property From Insolvent Estate
• Onus Of Proof In Insolvency
• Collusion And Simulated Transactions
• Insolvency-act-section-21
• Release-of-property-from-insolvent-estate

Meyerowitz v Motsheka N.O and Others (2013/37016)

Meyerowitz v Motsheka N.O and Others (2013/37016) [2014] ZAGPJHC 309 (31 October 2014)

Court

South Gauteng High Court, Johannesburg

Case number

2013/37016

Judge

Nochumsohn

The court found that the applicant acquired the property from her mother in 2005 by way of an arms-length sale, financed through her own credit standing and mortgage finance. The intention of the parties was that the applicant be the sole owner, and the transaction was not simulated or designed to defeat the rights of creditors. Although the applicant and her husband pooled their incomes to service the bond and other obligations, this did not render the property part of the insolvent's estate. The applicant's title to the property was valid as against creditors at the time of acquisition, and…

Source excerpt

• Insolvency Act Section 21
• Release Of Property
• Valid Title Against Creditors
• Simulated Transactions
• Abstract Theory Of Transfer

Scheepers v Stander NO and Others In re: Stander NO and Another v Scheepers (73309/2009)

Scheepers v Stander NO and Others In re: Stander NO and Another v Scheepers (73309/2009) [2013] ZAGPPHC 208 (28 June 2013)

Court

North Gauteng High Court, Pretoria

Case number

73309/2009

Judge

B Neukircher

The court held that section 21 of the Insolvency Act did not deprive the applicant of standing to challenge a costs liability, and set aside the allocatur and writ.

• Rescission Of Allocatur
• Condonation Of Late Filing
• Costs Taxation
• Locus Standi
• Insolvency Act Section 21
• Insolvency-act-section-21

Sali-Ameen v Smit NO and Another (10271/09)

Sali-Ameen v Smit NO and Another (10271/09) [2009] ZAGPJHC 66 (30 November 2009)

Court

South Gauteng High Court, Johannesburg

Case number

10271/09

Judge

Mathopo

The court found that the applicant acquired the property in December 1997, a decade before her husband's sequestration, at a time when he was financially stable. The evidence from the attorney and estate agent confirmed that the applicant was intended to be the owner, and the transaction was not simulated or collusive. The applicant's explanation for the acquisition was plausible and supported by independent documentation. The respondent's suspicions and claims of contradiction were unfounded and unsupported by the evidence. The applicant discharged the onus under section 21(2)(c) of the Inso…

Source excerpt

• Insolvency Act Section 21
• Vesting Of Spouse Property
• Onus Of Proof
• Simulated Transaction
• Bona Fide Donation

Beddy NO v Van der Westhuizen (323/97)

Beddy NO v Van der Westhuizen (323/97) [1999] ZASCA 32; [1999] 3 All SA 227 (A) (24 May 1999)

Court

Supreme Court of Appeal

Case number

323/97

Judges

Van Heerden, Hefer, Nienaber, Marais, Schutz

The Supreme Court of Appeal held that the solvent spouse failed to prove valid title under section 21(2) of the Insolvency Act because the sale was a collusive donation disguised as a sale.

• Insolvency Act Section 21
• Collusive Donation
• Onus Of Proof
• Valid Title Against Creditors
• Simulation
• Undue Preference