Simross Vintners (Pty) Ltd v Vermeulen; VRG Africa (Pty) Ltd v Walters T /A Trend Litho; Consolidated Credit Corporation (Pty) Ltd v Van der Westhuizen

• Jurisdiction: South Africa
• Court: Transvaal Provincial Division
• Judge: Coetzee J
• Judgment Date: 30 September 1977
• Citation: 1978 (1) SA 779 (T)
• Hearing Date: 27 September 1977

Simross Vintners (Pty) Ltd v Vermeulen;
VRG Africa (Pty) Ltd v Walters T /A Trend Litho;
Consolidated Credit Corporation (Pty) Ltd v Van der Westhuizen
1978 (1) SA 779 (T)

1978 (1) SA p779

Citation	1978 (1) SA 779 (T)
Court	Transvaal Provincial Division
Judge	Coetzee J
Heard	September 27, 1977
Judgment	September 30, 1977

Flynote : Sleutelwoorde

Practice — Applications and motions — Ex parte application — What is — Meaning of in Rule of Court 6 (4), (5) — Application referred to in Rule 6 F (2) merely has to be "addressed" to person against whom relief is claimed.

Insolvency — Compulsory sequestration — Notice of application for — Not necessary in Transvaal Provincial Division for such notice to be given to respondent where applicant relies on a nulla bona return — Use of Form 2 G of First Schedule to Uniform Rules of Court in order in such applications — Applicant using Form 2 notice of motion but serving it on respondent — Such application not ex parte and Rule 6 (5) then applicable — Such notice of motion a nullity and cannot be condoned under Rule 27 (3).

Headnote : Kopnota

H An "ex parte application" in our practice is simply an application of which notice was as a fact not given to the person against whom some relief is claimed in his absence. It is this meaning which must be attached to this phrase in Rule of Court 6 (4) and (5). Sub-rule (2) of Rule 6 does not provide that the application referred to therein should be served or should only be made on notice to the person against whom relief is claimed. It has merely to be "addressed" to him.

In three applications for compulsory sequestration order the various applicants relied on nulla bona returns. These applicants had, however, used the notice of motion prescribed in Form 2 of the First Schedule to the Uniform Rules of Court, which

1978 (1) SA p780

was a form appropriate to ex parte applications. The applicant in the first application had not served the notice on the respondent, but the applicants in the other two applications, had so served the notice on the respondents.

A Held, as to the first application, that in the Transvaal Provincial Division it had always been the practice to require that notice of the application for a provisional order of sequestration should be given unless the applicant relies upon a nulla bona return.

Held, further, that this applicant was therefore entitled to approach the Court without notice to the respondent: its application was thus brought ex parte, and the use of Form 2 was perfectly in order.

Held, further, as to the other two applications, that, as these B applications had been served on the respondents, they were not brought ex parte and Rule 6 (5) applied to them.

Held, further, that the notices of motion used in these applications (i.e. the Form 2 notice) were nullities and their use could not be condoned under Rule of Court 27 (3): accordingly, these applications had to be struck off the roll. C

Case Information

Applications for provisional orders of sequestration. The facts appear from the reasons for judgment.

M. M. Joffe, for the applicant in the Simross application.

E. Berg, for the applicant in the VRG application.

T. J. Kruger, for the applicant in the Consolidated Credit application.

Cur adv vult. D

Postea (September 30).

Judgment

E Coetzee, J.:

These three applications, to which I shall refer simply as "Simross", "VRG" and "Consolidated", were amongst a number of similar matters on this week's motion roll in which the initiating processes were notices of motion in accordance with Form 2 of the First Schedule to the Uniform Rules of Court. This is a form which is appropriate to ex parte applications, whereas they were cases in which sequestration or winding up F were sought upon notice to the various respondents. Not being ex parte applications, Form 2 (a) should have been used, or so it appeared to me. I queried the validity of this procedure, and the other matters were struck off the roll without further argument. But in the Simross application argument was addressed to me upon its peculiar facts. As the G VRG and the Consolidated applications are similar in some respects I was asked to consider them in the light of the argument of Mr. Joffe, who appeared in the Simross application.

Rule 6 (1) - 6 (5) (b) of the Uniform Rules of Court read as follows:

"6, (1) Save where proceedings by way of petition are prescribed by law, every application shall be brought on notice of motion supported by an affidavit as to the facts upon which the applicant relies for relief.

H (2) When relief is claimed against any person, or where it is necessary or proper to give any person notice of such application, the notice of motion shall be addressed to both the registrar and such person, otherwise it shall be addressed to the registrar only.

(3) Every petition shall conclude with the form of order prayed and be verified upon oath by or on behalf of the petitioner.

(4) (a) Every application brought ex parte (whether by way of petition or upon notice to the registrar supported by an affidavit as aforesaid) shall be filed with the registrar...