Schneider, NO v Raikin

• Jurisdiction: South Africa
• Judge: Ramsbottom J
• Judgment Date: 15 September 1954
• Hearing Date: 15 September 1954
• Court: Witwatersrand Local Division

F Ramsbottom, J.:

This is an application for the provisional sequestration of the respondent's estate. The applicant is the widow and executrix of the late Julius Schneider who died on January 28th, 1954. In her petition she alleges that since July, 1947, the respondent and G the late Julius Schneider were partners in a farming venture on the farm Zandspruit of which they were co-owners. The principal farming activity that was carried on was the planting and care of trees, but there was also some general farming. The applicant alleges that it was agreed between the partners that each should contribute one half of the expenses of the farming operations, that, since July, 1952, respondent has failed to make his contributions, and that he is, on this score, H indebted to the estate in the sum of £789 6s. 5d. The applicant alleges further that the estate is the holder of three promissory notes for £1,000, £2,000 and £2,000, made by the respondent in favour of the late Julius Schneider and one Clingman, and payable on May 15th, June 15th and July 15th, 1952 respectively. The promissory note

Ramsbottom J

for £1,000 was dishonoured when presented, and on May 29th the respondent gave the late Schneider a cheque for £1,000 payable to Schneider and Clingman; that cheque was dishonoured. On these facts the applicant alleges that the respondent is indebted to the Estate in the A sum of £2,500. The applicant does not allege any act of insolvency; she relies on an allegation of general insolvency. The respondent is the owner of an undivided half-share of the farm Zandspruit, a valuable asset which would realise a substantial sum, and the applicant alleges that it would be to the advantage of creditors if the respondent's estate were sequestrated.

B The respondent disputes the debt of £789 6s. 5d., and it is contended, on his behalf, that a debt owing by one partner to another in respect of partnership expenses cannot, save in certain circumstances, be sued for until the partnership has been liquidated. The respondent admits that he owes the £2,500, but alleges that on June 6th, 1952, the late Julius Schneider agreed and promised that he would take no action C for the recovery of that sum until the plantations on the farm should have reached maturity, a stage which it was expected would be reached in 1957. It is not disputed that the applicant has made out her case that the respondent is insolvent and that sequestration would be to the advantage of creditors.

D In view of the defence which was raised to the claim of £789 6s. 5d., Mr. Kentridge, on behalf of the applicant, did not rely on that debt; the applicant's claim that she is entitled to a sequestration order, therefore, is based...