Registrar of Insurance v Johannesburg Insurance Co Ltd (1)

• Jurisdiction: South Africa
• Judge: Hiemstra J
• Judgment Date: 27 August 1962
• Citation: 1962 (4) SA 546 (W)
• Hearing Date: 27 August 1962
• Court: Witwatersrand Local Division

Hiemstra, J.:

Mr. Isaacs, for the applicant, is about to refer to a report drawn by a firm of accountants at the request of Mr. Gunn, who was appointed by the Court to investigate the affairs of the respondent company. Mr. Coetzee, on behalf of the respondent, objects to any G reference being made to this report because, he says, it is inadmissible.

I will deal first with the second point raised by Mr. Coetzee, which was that the applicant must make out his complete case in his petition and not in his reply.

H At the time when this report was put in it was unsworn and it could therefore not be regarded as part of the petition for liquidation. Originally the application was one for judicial management but subsequently the applicant altered his prayer to an application for liquidation. It is true that at the time the report was put in it was not covered by any affidavit. Subsequently affidavits have been put in by Mr. Gunn and by the accountants in which they swore to the accuracy of the report.

This is a very complex case. It is certainly one of the more complex cases that this Court has had to deal with. It is quite unrealistic in these circumstances to expect the applicant to be in possession of all

Hiemstra J

the facts at the time of the launching of his petition. They are contained in the respondent's books and are peculiarly in the respondent's knowledge.

The applicant is the Registrar of Insurance and he had to deal with a A company of which he knew certain facts which indicated a serious mismanagement of the company's affairs. It is a typical kind of case in which more and more comes to light when investigations start. 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 B strictly observed. In this case the respondent has had a full opportunity of dealing with the facts stated in the report. As the report is now, it has been sworn to. Admittedly it has been sworn to only subsequently but it is in its present state sworn to.

I am not prepared to allow the rules of procedure to tyrannise the Court C where an important matter has to be thrashed out fully and all the facts have to...