Stand 382 Saxonwold CC and Another v Kruger NO

• Jurisdiction: South Africa
• Citation: 1990 (4) SA 317 (T)

Stand 382 Saxonwold CC and Another v Kruger NO
1990 (4) SA 317 (T)

1990 (4) SA p317

Citation	1990 (4) SA 317 (T)
Court	Transvaal Provincial Division
Judge	Kirk-Cohen J, Hartzenberg J, Marais J
Heard	June 4, 1990
Judgment	June 4, 1990

Flynote : Sleutelwoorde B

Insolvency — Property passing to trustee — Immovable property registered in name of solvent spouse attached and sold at sale in execution in satisfaction of a judgment debt at instance of building C society which had granted bond over property in favour of solvent spouse — Trustee, in whom such property vested, consenting to such sale — This not a 'realising' of the property by trustee as intended by s 21(3) of Insolvency Act 24 of 1936 and trustee accordingly not required to seek leave of Court therefor — Sale in execution not stayed by D provisions of s 20(1)(c) of Act as dominium of solvent spouse's property not transferred to spouse's insolvent estate to be dealt with in terms of s 20.

Headnote : Kopnota

The deputy sheriff (respondent in the present proceedings) applied in the Court a quo for the cancellation of a sale in execution as the purchaser (first appellant) had failed to carry out its obligations as E contained in the conditions of sale. The Court granted the order for the cancellation of the sale despite the opposition of the present appellants (first appellant being the purchaser and second appellant the holder of a second mortgage over the property and the sole member of the first appellant). The property in question was owned by a woman (Mrs R), who was married out of community to a man (Mr R) who, in December 1985, was declared insolvent. A first mortgage bond was registered over the F property in favour of a building society and because of a substantial amount owing in respect thereof the building society obtained judgment against Mrs R in September 1985. Respondent sold the property in execution of the judgment at the instance of the building society and it was at this sale that the first appellant purchased the property, Mr R's trustee consenting to such sale. The appellants opposed the cancellation on a number of grounds, two of which were persisted in at the appeal, viz: (1) that on the sequestration of Mr R, the property of Mrs R vested G in the Master of the Supreme Court and, on his appointment, the trustee of the insolvent estate and as the leave of the Court to realise the property as required by s 21(3) of the Insolvency Act 24 of 1936 had not been obtained the sale in execution was invalid; and (2) that as at the date of the sale in execution the property vested in the trustee of the insolvent estate as if it were the property of the sequestrated estate and the property was sold in execution the judgment in terms of which the execution was levied was the joint and several judgment against Mr H and Mrs R and as the estate of Mr R was sequestrated in December 1985 the purported sale in execution was therefore stayed in terms of s 20(1)(c) of the Insolvency Act and the purported sale was invalid.

Held, as to the appellants' first contention, that s 21(3) provided for the trustee, if he wished to realise the property of the solvent spouse after it vested in him, to give the requisite notice or seek the Court's leave to do so: it did not apply to the sale in execution at the instance of the building society as the first bondholder.

Held, accordingly, that although the solvent spouse's property vested in I the trustee he had not purported to realise the property but had merely consented to the sale at the instance of the building society and therefore the requirements of s 21(3) were not applicable.

Held, further, as to the appellants' second contention, that s 20(1)(c) did not apply to the property of the insolvent's spouse to whom he was married out of community of property: the fact that the judgment was J granted against both husband and wife

1990 (4) SA p318

A jointly and severally did not affect the position as the sale in execution was held consequent upon a judgment given against Mrs R in terms whereof her liability was several (as well as joint) and of property owned solely by her.

Held, further, that the dominium of the solvent spouse's immovable property upon insolvency of her husband was not transferred to his insolvent estate and did not fall to be dealt with in terms of s 20: it fell to be administered and disposed of by the trustee in terms of s 21. Appeal dismissed. B

Case Information

Appeal from a decision in a Local Division. The facts appear from the reasons for judgment.

A I S Redding for the appellants.

A P Kruger for the respondent.

Judgment

Kirk-Cohen J:

C In the Court a quo the deputy sheriff of Johannesburg, acting in terms of the provisions of Rule of Court 46(11), laid a report before Smit J in the Motion Court in which he sought the cancellation of a sale in execution as the purchaser allegedly failed to carry out its obligations set out in the conditions of sale. That prayer, together with certain ancillary relief, was granted. D

The fourth and fifth respondents sought leave to appeal on four grounds but the learned Judge granted leave upon one ground only - that, in view of the provisions of s 21(3) of the Insolvency Act 24 of 1936, his conclusion may have been wrong. However, we will deal with this appeal as though every point raised by the appellants is covered by the notice of appeal.

E I will refer to the parties as they were cited in the Court a quo.

I set out the following relevant facts:

1.

At all times relevant hereto, Mrs Röntgen, the second respondent, was the registered owner of erf 382, Saxonwold Township, Johannesburg.

2.

Mrs Röntgen was married F to K M Röntgen out of community of property.

3.

Mrs Röntgen caused a first mortgage bond to be registered over her property in favour of the United Building Society, the first respondent, for money lent and advanced to her. She also caused a second mortgage bond to be registered in favour of Azriel Lionel G Reichenberg, the fifth respondent (second appellant).

4.

On 17 September 1985 the first respondent obtained judgment against the second respondent for the amount outstanding under its bond in the sum of R115 515,15 together with interest and costs.

5.

The judgment in favour of the first respondent was granted jointly H and severally against the second respondent and K M Röntgen, he having bound himself as surety and co-principal debtor with his wife, the second respondent.

6.

The applicant 'in pursuance of such judgment placed an attachment on the second respondent's erf'. The property was apparently also declared executable in terms of that judgment; however, nothing I turns upon this point.

7.

On 12 December 1985 K M Röntgen was declared insolvent and the third respondent is the trustee in...