Shepherd v Mitchell Cotts Seafreight (SA) (Pty) Ltd

• Jurisdiction: South Africa
• Judge: Eloff J, Schabort AJ and Weyers AJ
• Judgment Date: 16 November 1983
• Court: Transvaal Provincial Division
• Hearing Date: 16 November 1983
• Citation: 1984 (3) SA 202 (T)

Eloff J:

This is an appeal against a final order of sequestration granted by MARGO J. The matter came before the C learned Judge on the return date of a provisional order of sequestration issued on 2 November 1982. After the return date appellant filed answering and supporting affidavits in which he acknowledged his indebtedness to respondent in the sum of R11 669,72 with interest and costs; but he joined issue on the questions whether he had committed acts of insolvency; whether D he was in fact insolvent; and whether it would be to the advantage of creditors if his estate were to be sequestrated. The respondent in due course replied to the answering affidavit and to his affidavit he annexed a number of documents and supporting affidavits including one by one P Waugh, who was after the grant of the provisional sequestration order E appointed provisional trustee. The response of the appellant was to file a notice of motion to strike out certain portions of the replying affidavit, some of the annexures thereto, and some of the supporting affidavits including that of the provisional trustee, as constituting new matter. In addition the appellant filed and affidavit in which he canvassed the question of a possible further reply to respondent's replying F affidavit. He did so in these terms:

"4. In the event of this honourable Court not acceding or granting the relief sought by me in the notice of motion to strike out, I pray that this honourable Court will grant me leave to deal with all of the new matters inasmuch as I have an answer to all matters therein raised and but for the fact that the new matter is contained in a replying G affidavit I would have dealt with it in full in my answering affidavit.

5. In support of what I have stated above regarding my ability to answer effectively the new allegations made I refer only to an affidavit of one Mr Andrew Michael Smulian who is the airport manager of Lanseria Airport situate in the district of Krugersdorp."

Then follows an affidavit which was intended, I gather, to serve the purpose of indicating the sort of reply which the H appellant thought he could put up to the affidavit of the provisional trustee.

When the matter was argued in the Court a quo, it had in the first instance to deal with the application to strike out and with the question of the request to file a further set of affidavits. Apparently, no doubt for reasons of convenience, I the learned Judge dealt at the same time with the application to strike out as also with argument on the merits of the application. Thereafter the learned Judge delivered an ex tempore judgment in which he dealt at the same time with the application to strike out and with the merits of the application for confirmation of the provisional sequestration order. The conclustion

Eloff J

A reached on the motion to strike out was that it succeeds save for the attack on the affidavit of the provisional trustee. It was held that that affidavit should stand. He then proceeded to deal with the merits of the application without reverting to the request by the appellant to which I referred earlier herein. I gain the impression that the learned Judge was of the B view that a request for leave to file further affidavits would only be considered if it was pressed from the bar. With respect, it seems to me that he probably overlooked the fact that such a request was already made in the affidavit to which I have alluded. He proceeded to deal with the matter on the basis that, in the absence of a request...