Nel v Lubbe
| Jurisdiction | South Africa |
| Judge | Leveson J |
| Judgment Date | 21 April 1998 |
| Docket Number | 98/7156 |
| Hearing Date | 21 April 1998 |
| Counsel | T Massy for the applicant No appearance for the respondent |
| Court | Witwatersrand Local Division |
Leveson J:
This is an application for the G sequestration of the respondent's estate. The founding affidavit is terse and laconic but it is abundantly clear therefrom that this is what is called in this Division a 'friendly sequestration'.
As with a number of sequestration matters on the current motion roll, there is an affidavit by a person describing himself as a sworn valuator setting out his opinion as to the price that will be realised for immovable property owned by H the respondent on a forced sale. A forced sale was described in Katzoff v Glaser 1948 (4) SA 630 (T) at 637. It is a sale where the owner of the property sold is in distress, usually having no funds to pay his debts. The sale is conducted by the sheriff. There is no reserve price. Advertisement of the sale is invariably inadequate and often the mortgagee, who I attends the sale to protect his interest, succeeds with a bid which in money terms is derisive. In the case of sale not in execution but by public auction on the direction of the trustee of an insolvent estate, I consider that the sale is no less a forced one. While advertisement of the sale is more extensive, there are many factors which do not attract a large number of bidders. They fear the prospect of hidden costs such as arrear unpaid rates and taxes, unpaid accounts for J
Leveson J
light and water consumed and other encumbrances, all of which will entitle the A local authority to withhold the issue of a clearance certificate, thereby preventing transfer of the property or registration of the property into the name of the purchaser until all liabilities are extinguished by the purchaser. They fear also the presence of a representative of the mortgagee who, because of his position, is the dominant bidder. He attends the sale to ensure that the B price fetched exceeds the indebtedness on the mortgage bond. Often it does not. Invariably, when the hammer falls he is the successful bidder and the price to be paid is substantially below the debt owed to the mortgagee. In the result, there is no free residue (after extinction of all encumbrances) so that no money C becomes available for inclusion in the dividend to be distributed to creditors. It is then seen that from the very beginning there has been no advantage to creditors, as is required by s 10 of the Insolvency Act 24 of 1936.
The purpose of furnishing a sworn valuation is therefore to establish the price that is likely to be...
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Premier, Eastern Cape, and Others v Cekeshe and Others
...has held, that the appeal should be dismissed with costs, which costs shall include the costs of the application for leave to appeal. J 1999 (3) SA p109 Somyalo JP Somyalo I have read the separate A judgments of Madlanga J et Locke J and am in full agreement with the conclusion arrived at i......
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Case Comments: Some judicial guidelines for establishing the value of immovable property in friendly sequestrations
...about the prospects of an advantage to creditors (see Ex parte Steenkamp and related cases 1996 (3) SA 822 (W); Nel v Lubbe 1999 (3) SA 109 (W)). Sequestrating creditors will accordingly have to take a hard look at the information and property which they allege prove the requirement of reas......
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Naidoo and Another v Matlala NO and Others
...v Basson 2002 (1) SA 419 (SCA) A (2001 (2) SACR 712; 2002 (1) BCLR 419; [2002] 2 All SA 255): dictum in para [21] applied Nel v Lubbe 1999 (3) SA 109 (W): dictum at 111D – G Nyingwa v Moolman NO 1993 (2) SA 508 (Tk): dictum at 510D – G applied B Parkview Properties (Pty) Ltd v Haven Holding......
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Investec Bank Ltd and Another v Mutemeri and Another
...National Director of Public Prosecutions v Zuma 2009 (2) SA 277 (SCA) (2009 (1) SACR 361; 2009 (4) BCLR 393): referred to Nel v Lubbe 1999 (3) SA 109 (W): referred Prudential Shippers SA Ltd v Tempest Clothing Co (Pty) Ltd and Others 1976 (2) SA 856 (W): dictum at 863D - 865A applied Transv......
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Premier, Eastern Cape, and Others v Cekeshe and Others
...has held, that the appeal should be dismissed with costs, which costs shall include the costs of the application for leave to appeal. J 1999 (3) SA p109 Somyalo JP Somyalo I have read the separate A judgments of Madlanga J et Locke J and am in full agreement with the conclusion arrived at i......
-
Naidoo and Another v Matlala NO and Others
...v Basson 2002 (1) SA 419 (SCA) A (2001 (2) SACR 712; 2002 (1) BCLR 419; [2002] 2 All SA 255): dictum in para [21] applied Nel v Lubbe 1999 (3) SA 109 (W): dictum at 111D – G Nyingwa v Moolman NO 1993 (2) SA 508 (Tk): dictum at 510D – G applied B Parkview Properties (Pty) Ltd v Haven Holding......
-
Investec Bank Ltd and Another v Mutemeri and Another
...National Director of Public Prosecutions v Zuma 2009 (2) SA 277 (SCA) (2009 (1) SACR 361; 2009 (4) BCLR 393): referred to Nel v Lubbe 1999 (3) SA 109 (W): referred Prudential Shippers SA Ltd v Tempest Clothing Co (Pty) Ltd and Others 1976 (2) SA 856 (W): dictum at 863D - 865A applied Transv......
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FirstRand Bank Limited Intervening Creditor v Engelbrecht
...applicant for voluntary surrender must do to prove that his/her sequestration will be to the advantage of creditors. In Nell v Lubbe 1999 (3) SA 109 (W) at 111D – G Leveson J stated the position as 'The purpose of furnishing a sworn valuation is therefore to establish the price that is like......
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Case Comments: Some judicial guidelines for establishing the value of immovable property in friendly sequestrations
...about the prospects of an advantage to creditors (see Ex parte Steenkamp and related cases 1996 (3) SA 822 (W); Nel v Lubbe 1999 (3) SA 109 (W)). Sequestrating creditors will accordingly have to take a hard look at the information and property which they allege prove the requirement of reas......
-
Premier, Eastern Cape, and Others v Cekeshe and Others
...has held, that the appeal should be dismissed with costs, which costs shall include the costs of the application for leave to appeal. J 1999 (3) SA p109 Somyalo JP Somyalo I have read the separate A judgments of Madlanga J et Locke J and am in full agreement with the conclusion arrived at i......
-
Case Comments: Some judicial guidelines for establishing the value of immovable property in friendly sequestrations
...about the prospects of an advantage to creditors (see Ex parte Steenkamp and related cases 1996 (3) SA 822 (W); Nel v Lubbe 1999 (3) SA 109 (W)). Sequestrating creditors will accordingly have to take a hard look at the information and property which they allege prove the requirement of reas......
-
Naidoo and Another v Matlala NO and Others
...v Basson 2002 (1) SA 419 (SCA) A (2001 (2) SACR 712; 2002 (1) BCLR 419; [2002] 2 All SA 255): dictum in para [21] applied Nel v Lubbe 1999 (3) SA 109 (W): dictum at 111D – G Nyingwa v Moolman NO 1993 (2) SA 508 (Tk): dictum at 510D – G applied B Parkview Properties (Pty) Ltd v Haven Holding......
-
Investec Bank Ltd and Another v Mutemeri and Another
...National Director of Public Prosecutions v Zuma 2009 (2) SA 277 (SCA) (2009 (1) SACR 361; 2009 (4) BCLR 393): referred to Nel v Lubbe 1999 (3) SA 109 (W): referred Prudential Shippers SA Ltd v Tempest Clothing Co (Pty) Ltd and Others 1976 (2) SA 856 (W): dictum at 863D - 865A applied Transv......