Lane and Fey NNO v Dabelstein and Others

• Jurisdiction: South Africa
• Judge: Chaskalson P, Ackermann J, Goldstone J, Kriegler J, Madala J, Mokgoro J, Ngcobo J, Sachs J, Yacoob J, Madlanga AJ, and Somyalo AJ
• Judgment Date: 06 March 2001
• Docket Number: CCT 60/2000
• Court: Constitutional Court
• Hearing Date: 06 March 2001
• Citation: 2001 (2) SA 1187 (CC)

Goldstone J et Kriegler J C

[1] This is an application for special leave to appeal to this Court against a judgment and order of the Supreme Court of Appeal (SCA) [*] in a case between two opposing sets of foreign creditors in the insolvent estate of a certain Mr Jürgen Harksen. The effect of the order was to set aside an attachment of South African assets of the respondents in order to found and confirm the D jurisdiction of the Cape Provincial Division of the High Court. [1] The attachment order had been obtained by the other set of creditors suing in the name of the applicants, who were the trustees in the insolvent estate. They wished to bring an action to set aside as voidable dispositions two payments made to the respondents by the insolvent pursuant to orders of court. E

[2] The definition of 'disposition' in s 2 of the Insolvency Act 24 of 1936 excludes a 'disposition in compliance with an order of . . . court'. In Sackstein en Venter NNO v Greyling [2] it was held that the exclusion does not apply to orders fraudulently obtained or obtained pursuant to F agreements concluded in order to defeat the claims of other creditors. In the High Court, Van Zyl J followed Sackstein and granted the attachment on the basis that a prima facie case of fraud had been established. The SCA upheld the appeal on the basis that the factual averments contained in the affidavits of the applicants did not establish a prima facie case of fraud. G

[3] In seeking leave to appeal to this Court the applicants allege that the case raises the following constitutional issues:

(a)

The order of the SCA violated the applicant's right of access to the courts in violation of s 34 of the Constitution of the Republic of South Africa Act 108 of 1996; H

(b)

The fact that peregrini require an attachment to found and confirm jurisdiction even though a ground of jurisdiction exists, whereas incolae do not, constitutes unfair discrimination against peregrini in violation of s 9 of the Constitution; and I

Goldstone J et Kriegler J

(c)

The SCA failed to consider crucially important evidence contained in the applicants' affidavits and thereby violated the applicants' 'right to a fair trial and to fair justice' (presumably also under s 34 of the Constitution). B

The respondents oppose the application and seek the costs thereof.

[4] In our opinion the application should not be granted. There is no substance in the...