Collective Investments (Pty) Ltd v Brink and Another

• Jurisdiction: South Africa
• Judge: Leon J, Kriek J and Broome J
• Judgment Date: 20 December 1977
• Citation: 1978 (2) SA 252 (N)
• Hearing Date: 11 November 1977
• Court: Natal Provincial Division

Kriek J:

An application by the respondents in this appeal for the provisional winding up of a company called Carlton Township Development Co Ltd (to which I will refer as the company) came before HEFER J on 30 July 1976. The basis of the application was that, in terms of s 345

Kriek J

(1) (a) of Act 61 of 1973, the company should be deemed to be unable to pay its debts and, in the affidavits filed in support of the application, the necessary factual averments to support this basis were made. Notice of the application had been given to the company the previous day. There was A no appearance for the company, but the appellant in this appeal appeared through counsel and applied for leave to intervene. The appellant asked that the application for the provisional winding-up of the company be dismissed, inter alia, on the ground that, in bringing the application, the respondents had not observed the time limits prescribed by Rule 6 of B the Uniform Rules of Court. In his ex tempore judgment HEFER J said this with regard to this ground of opposition:

"I have always understood, and I have received the assurance from counsel again today, that it has been a long-standing practice in this Division in applications of this nature not to insist on service nor on compliance with the time limits provided for in Rule 6. I may say that it sounds very logical to me that Rule 6 should also apply to applications of this C nature, but sitting alone, as I am, I am certainly not prepared to deviate from a long-standing practice which has all along been followed in this Division. I am, therefore, not prepared to refuse the application on these grounds."

He proceeded to deal with and reject other grounds of opposition, and then granted a provisional winding up order and also ordered the appellant to pay the respondents' costs occasioned by the intervention. It is against D the latter order that the appellant appeals (with leave from HEFER J) on the following grounds:

"1.

The learned Judge erred in entertaining the respondent's application under case number M431/1976 notwithstanding that the same did not comply with the provisions of Rule 6, in particular Rule 6 (12), of the above E Honourable Court.

2.

The learned Judge erred and misdirected himself in observing a rule of practice in regard to the respondents' failure to observe and adhere to the provisions of Rule 6, in particular those of Rule 6 (12) of the Rules of the above Honourable Court as opposed to observing the F provisions of the Rules of the above Honourable Court in preference to such practice."

The practice mentioned by HEFER J relates not only to provisional winding up applications, but also to applications for the provisional sequestration of individuals. Prior to 1932 the practice in this Division had been to grant applications for provisional sequestration ex parte even G where the applicant relied upon facts of which there was no proof save a sworn statement made by him or by a witness on his behalf. In that year, however, the present practice in this Division (which was then the existing practice in the Transvaal Provincial Division) was adopted. In J W Jagger & Co (Pty) Ltd v Mahomed 1932 NPD 350 HATHORN J said at 357:

H "In such cases as the present I am strongly of opinion that the Court ought to require that notice of the application for provisional sequestration together with a copy of the petition and affidavits be served on the respondent.

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