Man Financial Services (SA) (Pty) Ltd v Buys

• Jurisdiction: South Africa
• Judge: Mashile J
• Judgment Date: 29 April 2014
• Docket Number: 2013/11125
• Court: South Gauteng High Court, Johannesburg
• Hearing Date: 31 October 2013
• Citation: 2014 JDR 1013 (GSJ)

Mashile, J:

[1]

This is an application for the provisional sequestration of the Respondent occasioned by his failure to honour payment of an amount of R16 844 120.32. The amount owed by the Respondent was the result of a

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judgment obtained by the Applicant against him on 8 February 2012. The Respondent admitted that he is financially embarrassed and that he cannot satisfy the judgment debt.

[2]

Prior to embarking on the judgment itself, I intend to clear the way by dealing with the preliminary matters. The Respondent has without the permission of the court filed a further affidavit. This is unprecedented. I say so because it is generally prohibited to do so without the leave of the court. However, a party would be allowed to file a further affidavit where a replying affidavit contains new matters which should otherwise have been raised in the founding affidavit.

[3]

I have perused the replying affidavit with the objective of deciphering new matters raised therein. I am struggling to spot any matter that can be said to be new and unfortunately the Respondent alludes thereto but then sets out matters that are not new at all. In the circumstances the court sees no reason to depart from the general rule stated above.

[4]

The Respondent refers to the following as new matters raised in the replying affidavit which prompted him to file the further affidavit:

4.1

The Respondent has constantly manipulated his financial affairs to frustrate his creditors and in particular the applicant;

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4.2

The Respondent's version that the proceeds of the sale of his assets were used to sustain himself cannot be believed;

4.3

It is inconceivable that the Respondent could not earn a rental income from the properties;

4.4

That the Respondent was attempting to hide assets.

[5]

The only matter that appears to be new is the allegation that the Respondent must have earned rental from the properties. This is not new as it was raised in rebuttal to the Respondent's allegation that he utilised all the proceeds of the sales of the properties to fund his living expenses. The Applicant was entitled to show that the Respondent's averments in that regard could not conceivably be true.

[6]

In this regard it is appropriate to make reference to the following passage of Hiemstra J in Registrar of Insurance v Johannesburg Insurance Co Ltd (1) 1962 (4) SA 546 (W):

"The rules of procedure are made to facilitate litigation; they are always subject to the over-riding discretion of the Court. The Court will take into account whether any of the parties is prejudiced if the rules are not strictly observed. ....... I am not prepared to allow the rules of procedure to tyrannise the Court where an important matter has to be thrashed out fully and all the facts have to be put before the Court. In this particular case, because the case is complex and it cannot be fairly expected from the petitioner to have all the facts at his disposal before he launches his petition, which was in fact launched in the public interest, I will overlook the fact that an important part of the petitioner's case was put in after his original petition."

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[7]

I am mindful that the Applicant's approach is somewhat indifferent in that it has left it to the court to decide whether or not to allow the further affidavit. The general rule is clear and the purpose that it serves is to avoid prolixity of papers, which of course inexorably culminates in a waste of crucial time. Accordingly, I decline to accept the further affidavit.

[8]

Similarly, the Applicant served and filed its replying affidavit out of time. The Respondent did not bar it and the Applicant itself did not bring an application to condone such late filing. While the Respondent did not object to the late filing, he appears to be using it as a justification for the filing of the further affidavit. This is unacceptable and accordingly I reject it.

[9]

The conclusion of the introductory matters clears the path for this court to turn to the judgment itself. The background facts to this matter are that in 1986 the Respondent started a transport business known as Coal Trans (Pty) Ltd, which he operated until its demise in 2006. As the main shareholder in the company the Respondent stood surety for Coal Trans. In 2005 the business changed its name to Sawina Logistics (Pty) Ltd. Coal Trans was a conglomerate of two companies and these were Coal Trans itself and G & L Parkin (Pty) Ltd.

[10]

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