Cambanis v Bornman; Mosenthals Ltd v Bornman

• Jurisdiction: South Africa
• Judge: De Beer JP
• Judgment Date: 17 November 1949
• Citation: 1950 (1) SA 252 (O)
• Hearing Date: 03 November 1949
• Court: Orange Free State Provincial Division

De Beer, J.P.:

Rule 9 (a) of our Rules of Court provides that all applications shall be brought by way of motion and shall be filed with the Registrar at such time that at least one day shall intervene between the day of filing and the day of hearing and that the Registrar shall set them down and shall call them in the order in which they stand.

The first named applicant, to whom I shall refer herein as Cambanis, duly filed a petition for the sequestration of respondent's estate and on the matter being called counsel on behalf of Mosenthals from the Bar sought for and was granted leave to intervene in a similar matter against respondent. In both cases applicants relied on equally clear and strong acts of insolvency and two questions arose for decision: firstly at the instance of which of the two parties the provisional order should be granted, and,

De Beer JP

secondly whether the unsuccessful party was entitled to an order declaring that the costs of the abortive proceedings shall be deemed to be costs of sequestration in terms of secs. 14(2) and 97 of the Insolvency Act, 24 of 1936.

The matter was of some urgency as the stock in trade of the respondent, a general dealer, had been attached and was due to be sold in two days time. At the hearing it soon became apparent from the decided cases referred to by counsel that the practice which has been followed was by no means uniform on either of the questions raised: however, in view of the urgency of the matter and at the same time in an attempt to minimise costs I granted a provisional order, returnable on the 24th November, at the instance of Cambanis intimating that I did so merely on the grounds that this was the least bulky of the two petitions whilst reserving for consideration my judgment on the two issues raised.

In so far as they are relevant to these issues the facts can thus be summarised. On the 2lst October, 1949, Mosenthals lodged with the Master the requisite security and a certificate was thereupon issued to them in terms of sec. 9 (3) of the Act. On the 1st November, Cambanis also obtained from the Master a certificate which, however, bore the following endorsement: "A similar certificate was issued herein on the 2lst October, 1949." On the same day - and in terms of the rule of Court the last day on which he could do so - Cambanis set the matter down for hearing on the 3rd November.

In accordance with past practice, based no doubt on similar rules of Court and...