Meter v Naidoo; Scalabrino v Naidoo

• Jurisdiction: South Africa
• Judge: Banks AJ
• Judgment Date: 04 November 1959
• Citation: 1960 (1) SA 242 (C)
• Hearing Date: 03 November 1959
• Court: Cape Provincial Division

Banks, A.J.:

There are two petitions before the Court for the sequestration of the estate of the respondent, one Chinnasamy Rajagopaul F Naidoo. The respective petitioners are Cornelis Arjen Meter for whom Mr. Aaron appeared, and Gaspare Scalabrino for whom Mr. Levy appeared. Both counsel agreed, as is clearly the case, that a provisional order of sequestration should issue. The matter for decision is at whose instance the Court should grant the order.

The facts relevant to the Scalabrino petition are that all matters G necessary for the hearing of the application were completed on the 29th October, 1959. On that date security was lodged and a copy of the petition was filed with the Master, the petition was filed with the Registrar, and the matter set down for hearing on the 3rd November, 1959, which was the first available date.

H In regard to the Meter petition, the facts are that security was lodged with the Master on the 28th October, 1959. The petition was signed on the 29th October, 1959, at Paarl. On the 30th October, 1959, the petition was lodged with the Master and his report bears that date. On the same date the petition was lodged with the Registrar and the matter was set down for hearing on the 3rd November, 1959.

It will be observed that in the case of Meter security was lodged one day before security was lodged on behalf of Scalabrino but in the latter

Banks AJ

case the petition was filed and the matter set down for hearing one day earlier than in the Meter petition. In the case of Wellington Board of Executors Ltd. and Another v Perlman, 1954 (1) SA 546 (C), it was held that in the case of competing creditors for sequestration the A creditor who first lodges his security with the Master should have priority, but as was stated by OGILVIE THOMPSON, J. (as he then was), in Saffer Clothing Industries (Pty.) Ltd v Chiat and Mair, 1956 (1) SA 756 (C) at p. 758, that rule would only normally be decisive in the case where the two competing petitions are both in proper form and are duly and contemporaneously before the Court. This cannot be said to be the position here.

B On the other hand I do not regard Saffer's case as laying down the rule that priority must be given to the first petition which is complete in the sense that an order can be issued thereon, as was contended by Mr. Levy.

C It was emphasised at p. 757 that the Court must necessarily retain a measure of discretion to be exercised according to...