Intercontinental Exports (Pty) Ltd v Fowles

• Jurisdiction: South Africa
• Citation: 2000 (4) SA 833 (W)

Intercontinental Exports (Pty) Ltd v Fowles
2000 (4) SA 833 (W)

2000 (4) SA p833

Citation	2000 (4) SA 833 (W)
Case No	99/25100
Court	Witwatersrand Local Division
Judge	Flemming Djp
Heard	August 3, 2000
Judgment	August 18, 2000
Counsel	J H Engelbrecht for the applicant.; P J Berthold for the respondent.

Flynote : Sleutelwoorde F

Insolvency — Compulsory sequestration — Application for — Master's certificate in terms of s 9(3)(b) of Insolvency Act 24 of 1936 as to security — Date by which validity of certificate to be determined is date to be read on notice of motion — Semble: Legislative pattern was that party giving security should have ten days to proceed to obtain order and after ten days way to be clear for G someone else to proceed — Section 9(3)(b) not succeeding in creating that pattern.

Headnote : Kopnota

In terms of the decision in Anthony Black Films v Beyl 1982 (2) SA 478 (W) the 'date of the notice of motion' is the reference point for calculating the validity of the Master's certificate in terms of s 9(3)(b) of the Insolvency Act 24 H of 1936 ('given not more than ten days before the date of such petition that sufficient security has been given for the payment of all fees and charges necessary for the prosecution of all sequestration proceedings and of all costs of administering the estate until a trustee has been appointed, or if no trustee is appointed, of all fees and charges necessary for the discharge of the estate from sequestration'). The 'date of the notice of motion' is the date I which is to be read on the notice of motion. (At 835C/D - D/E.)

Semble: The interpretations given by Courts to s 9(3)(b) make it impossible to recognise a defined purpose of the section which is consistently successfully achieved. It is clear that the Legislature did not want the certificate of security to be too old. But why? Why only ten days? The problems arising from more than one person asking for sequestration of the same estate was J

2000 (4) SA p834

probably the reason for s 9(3)(b). In every case the result of A competition was the wasted costs of at least one application, sometimes an overlap of orders and often costs of arguments about costs. It mostly burdened the creditors. Unfairness was not avoided by any yardstick, for example giving precedence to the applicant with the earliest date on his security certificate. The legislative pattern was to the general effect that the party who gives security should have ten B days to proceed to obtain his order; after ten days the way must be clear for someone else to proceed. Section 9(3)(b) has not succeeded in creating that pattern. (At 835F/G - I/J.)

Cases Considered

Annotations:

Reported cases

Anthony Black Films v Beyl 1982 (2) SA 478 (W): applied and explained C

Court v Standard Bank of SA Ltd; Court v Bester NO and Others 1995 (3) SA 123 (A): compared

Visser v Coetzer; GTR Investments Ltd and Others v Coetzer 1982 (4) SA 805 (W): considered.

Statutes Considered

Statutes

The Insolvency Act 24 of 1936, D s 9(3)(b): see Juta's Statutes of South Africa 1999 vol 2 at 1-448.

Case Information

Application for the compulsory sequestration of the respondent's estate. The facts appear from the reasons for judgment.

J H Engelbrecht for the applicant.

P J Berthold for the respondent. E

Cur adv vult.

Postea (August 18).

Judgment

Flemming DJP:

This matter could not be F disposed of during the Motion Court week because some of the papers had not been lodged and were not available. During the next week condonation was sought, applicant inviting respondent to provide an answer to the new material. No attempt...