Standard Bank of SA Ltd v Essop

• Jurisdiction: South Africa
• Court: Durban and Coast Local Division
• Judge: Meskin J
• Judgment Date: 15 May 1997
• Citation: 1997 (4) SA 569 (D)
• Hearing Date: 06 May 1997
• Docket Number: 3145/96
• Counsel: N D Hollis for the applicant E Zar (with him S S Cohen) for the respondent and intervening creditor

Meskin J:

The applicant in this case seeks an order for the provisional sequestration of the respondent's estate. The application is opposed by the respondent and by one Mohamed Iqbal Joosab who is an intervening creditor. F

Mr Hollis appears for the applicant. Mr Zar, who appears with Mr Cohen for the respondent and the intervening creditor, has raised what he described as two points in limine. They were not formulated in writing and, as described by Mr Zar from the bar, it appears to me that there G is in fact only one point in limine. I shall describe such point later in this judgment.

It was agreed between counsel that I should rule on this point only at this stage of the proceedings because, if it were to be sound, the application would fall to be dismissed with costs, including the costs of two counsel. H

In order to formulate the point in limine and to appreciate the thrust of Mr Zar's argument in support thereof, and the argument of Mr Hollis in opposition thereto, it is necessary to describe certain of the facts.

The applicant is a judgment creditor of the respondent. The amount of the judgment debt was I originally some R488 000 exclusive of interest and costs. Some payments were made by the respondent in terms of certain agreements between the parties concluded subsequently to the grant of the judgment. Ultimately, however, on the basis of a contention that the respondent had defaulted in his undertakings, the applicant by notice of motion dated 17 May 1996 commenced an application for the sequestration of the respondent's estate. J

Meskin J

Following upon several postponements, the application was ultimately postponed sine die on A 20 September 1996 on the basis that it had been settled.

A written agreement was concluded on 20 September 1996 between the applicant and the respondent. It was described as an 'Agreement of settlement' and its terms were the B following:

'1.

The respondent undertakes to pay the applicant:

(a)

the balance of the applicant's judgment granted in its favour in case No 9152/93;

(b)

the applicant's taxed or agreed costs in case No 9152/93;

(c)

the applicant's taxed or agreed costs in this application (case No 3145/96). C

2.

The indebtedness referred to in para 1 hereof shall be paid by the respondent as follows:

(a)

R70 000 by 25 September 1996

(b)

R40 000 by 30 October 1996

(c)

R35 000 by 30 November 1996

(d)

R35 000 by 30 December 1996 D

(e)

R70 000 by 30 January 1997

(f)

the balance of the indebtedness by 28 February 1997.

3.

All payments shall be made at the offices of the applicant's attorneys, Garlicke & Bousfield Inc, 22nd floor, Durban Bay House, 333 Smith Street, Durban. E

4.

In the event of the respondent failing to pay any amount on due date, the applicant shall be entitled to reinstate the application for the respondent's sequestration on the unopposed motion roll and to utilise the affidavit deposed to by the respondent consenting to a provisional and final order of sequestration.

5.

It is agreed that the application shall be adjourned sine die. F '

On 20 September 1996 the respondent deposed to the affidavit mentioned in clause 4 of the agreement. This affidavit contained the following statements:

'1

I confirm that the matter has been settled on the basis set out in the agreement of settlement annexed hereto marked ''A''.

2.

I withdraw my opposition to the application and consent to a provisional and final order of G sequestration being granted against me in the event of my failing to pay any amount due in terms of the said agreement of settlement.'

Purporting to act pursuant to the agreement of 20 September 1996 read with the affidavit of that date, and on the basis that the respondent had paid only the instalment of R70 000 which H was payable on 25 September 1996 and had failed to pay the instalment of R40 000 which was payable on 30 October 1996, the applicant lodged a notice of motion with the Court dated 12 November 1996 reading as follows:

'Whereas the above matter was, on 20 September 1996, adjourned sine die. I

Kindly take notice that the Standard Bank of South Africa Ltd (hereinafter referred to as ''the applicant'') will make application to this honourable Court on 20 November 1996 at 9:30 am or as soon thereafter as the matter may be heard for an order in the following terms:

1.

That Farouk Essop (hereinafter referred to as ''the respondent'') and all other interested persons be and they are hereby called upon to show cause, if any, to this honourable Court on the J

Meskin J

day of 1996 at 9:30 am or so soon thereafter as the matter may be heard, why the estate of the A respondent should not be sequestrated.

2.

That this order shall operate as an order provisionally sequestrating the respondent.

3.

That this order be served forthwith on the respondent. B

Take notice further that the further affidavit deposed to by J C Jones on 12 November 1996 will be used in support of such application.'

An affidavit by Mr J C Jones dated 12 November 1996 accompanied this notice of motion. In this affidavit Mr Jones referred, inter alia, to the agreement and the affidavit to which I have C already referred, to the omission by the respondent to have paid the aforesaid instalment...