Dabelstein and Others v Lane and Fey NNO

• Jurisdiction: South Africa
• Judge: Hefer ADCJ, Vivier JA, Nienaber JA, Harms JA and Plewman JA
• Judgment Date: 28 November 2000
• Citation: 2001 (1) SA 1222 (SCA)
• Docket Number: 112/99
• Hearing Date: 14 November 2000
• Counsel: M J D Wallis SC (with him S Olivier) for the appellants. T A Barnard for the respondents.
• Court: Supreme Court of Appeal

Hefer ADCJ: D

[1] If the trustee of an insolvent estate fails to initiate proceedings to set aside a disposition under ss 26, 29, 30, or 31 of the Insolvency Act 24 of 1936, as amended (the Act), then, in terms of s 32(1)(b), any creditor may do so in the name of the trustee upon his indemnifying the latter against all costs of the E proceedings.

[2] The present case relates to the insolvent estate of Jürgen Harksen, which was sequestrated by order of the Cape Provincial Division of the High Court. The main issue in the appeal is the correctness of Van Zyl J's subsequent order in the same Court confirming a rule nisi authorising three German creditors F (the applicants) to attach certain South African assets of 13 other foreign creditors (the Dabelsteins) ad fundandam vel confirmandam jurisdictionem with a view to the institution of an action by the applicants in the name of the provisional trustees for the annulment of two allegedly impeachable dispositions. G

[3] A preliminary submission for the respondents is that the Court a quo's judgment is not appealable since, in terms of s 150(4), there is no appeal (subject to certain exceptions) against an order made in terms of the Act. The judgment has been reported (Lane and Another NNO v Dabelstein and Others (Lane and Another NNO Intervening) 1999 (3) SA 150 (C)) and it appears from the H report that the Court decided several issues but made only two substantive orders: it granted the present respondents leave in terms of s 18(3) to institute the proposed action (163G - H) and, by confirming the rule nisi, ordered the attachment of the Dabelsteins' property. The first order may well be classified as one in terms of the Act but the order for attachment was made under the common law. It is plainly not affected by s 150(4). Moreover, such an I order finally disposes of the issue of jurisdiction and is thus appealable. (Tick v Broude and Another 1973 (1) SA 462 (T) at 465G - 467A.) I will confine my judgment to this order.

[4] The facts need not be restated because, although there are several J

Hefer ADCJ

matters on which the parties do not agree, this judgment will focus on a single decisive issue. Suffice it to say that the dispute is A entirely about two payments made by Harksen to the Dabelsteins before the sequestration of his estate which are alleged by the applicants to be impugnable dispositions under ss 26, 29 or 30 of the Act. But both were made in terms of orders of court and the definition of 'disposition' in s 2 expressly excludes 'a disposition in B compliance with an order of the court'. It is incumbent upon an applicant for an order of attachment to establish a prima facie case in the proposed action and, since the amounts paid cannot be recovered unless there is room for a finding that the payments are not affected by the exclusion, the only question is whether such a finding is justified. C

[5] Relying on Sackstein and Venter NNO v Greyling 1990 (2) SA 323 (O) the applicants' counsel submits that it is indeed justified. In that case the plaintiffs sought to have a disposition set aside under s 29 or 30 despite the fact that it had been made in compliance with an order of court. The order had been granted in terms D of a settlement agreement. At 327B - D Van Coller J reasoned that the exclusion in s 2 could not have been intended to afford protection to the receiver of property who fraudulently colluded to...