Voget and Others v Kleynhans

• Jurisdiction: South Africa
• Judgment Date: 08 August 2002
• Citation: 2003 (2) SA 148 (C)

Voget and Others v Kleynhans
2003 (2) SA 148 (C)

2003 (2) SA p148

Citation	2003 (2) SA 148 (C)
Case No	3119/2002
Court	Cape Provincial Division
Judge	van Reenen J
Heard	June 18, 2002
Judgment	August 8, 2002
Counsel	G G Goosen for the excipient (defendant).; D M de Lange for the respondents (plaintiffs).

Flynote : Sleutelwoorde B

Insolvency — Property passing to trustee — Right of action forming part of insolvent estate — For purposes of s 20(2) of Insolvency Act 24 of 1936, right of action constitutes 'corporeal movable property' capable of forming part of insolvent estate if it exists at date of sequestration or accrues during sequestration, unless s 23 of the Act otherwise provides. C

Insolvency — Legal proceedings — Locus standi to sue — Means a direct and substantial interest in the right which is the subject-matter of litigation and outcome thereof — Where cause of action founded on deleterious consequences of defendant's conduct on patrimony of joint estate, insolvent estate clearly affected thereby and cause of action forming part of insolvent joint estate. D

Insolvency — The insolvent — Locus standi to sue in own name — Insolvent deprived of locus standi only in instances mentioned in s 23(6) of Insolvency Act 24 of 1936 — However, where trustee refuses to institute proceedings for recovery of benefit due to insolvent estate, then, by virtue of his reversionary interest in insolvent estate, insolvent may do so in own name. E

Practice — Pleadings — Exception — Locus standi — Question whether party has locus standi to sue may be dealt with by means of exception.

Practice — Pleadings — Exception — Onus — Onus of showing that pleading excipiable rests on excipient — Court to assume correctness of factual averments in relevant pleading, unless palpably untrue or so improbable F that they cannot be accepted.

Headnote : Kopnota

The plaintiffs instituted action against the defendant, an attorney who had represented the second and third plaintiffs in an action instituted against them by one N, in which action they were unsuccessful. Their action against the defendant was one for damages arising out of professional negligence. The first and second G plaintiffs were married in community of property. When the second and third plaintiffs were unable to settle their judgment debt pursuant to a settlement with N, the joint estate of the first and second plaintiffs was sequestrated. They were thus both insolvents for the purposes of the Insolvency Act 24 of 1936. The plaintiffs averred in their particulars of claim that the first and second plaintiffs were both unrehabilitated insolvents and that they had brought the action H 'with the knowledge and consent of their trustee'. The defendant excepted to the plaintiffs particulars, averring that the first and second plaintiffs were unrehabilitated insolvents, that the alleged cause of action upon which they relied arose prior to their sequestration, that their claim did not fall within the scope of claims in s 23 of the Act in respect of which they could sue in their own I names and that, accordingly, they had no locus standi to bring the action.

Held, that the Court would assume that the concept 'locus standi' was used by the defendant in the sense of a direct and substantial interest in the right which was the subject-matter of the litigation and the outcome thereof, and not in the sense of legal capacity to litigate. (Paragraph [6] at 151E - F.) J

2003 (2) SA p149

Held, further, that, the question whether a party had locus standi to sue could be dealt with by means of an A exception and the onus of showing that a pleading was excipiable rested on the excipient. (Paragraphs [7] and [8] at 151F - G.)

Held, further, that the factual averments in the plaintiffs' particulars, if accepted as correct, constituted a cause of action against the defendant in respect of at least part of the damages claimed. (Paragraph [10] at 151I - I/J.)

Held, further, that a right of action constituted 'movable corporeal property', capable of forming part of an insolvent's estate B if it existed as at the date of sequestration or if it accrued during sequestration, unless s 23 of the Act otherwise provided. (Paragraph [15] at 152D/E - F.)

Held, further, that, on the basis of the averments made in the particulars of claim, the plaintiffs' cause of action came into existence prior to the first and second plaintiffs' sequestration and, accordingly, formed part of their insolvent estate. Even if it had come C into existence during their sequestration, it would, in terms of the provisions of s 20(2)(b) of the Act, still have formed part of their insolvent estate. (Paragraphs [16] and [17] at 152G - H/I.)

Held, further, that the plaintiffs cause of action was founded on the deleterious consequences that the defendant's alleged breach of contract had had on the patrimony of their joint D estate. To the extent that the purpose of the action was to restore their joint estate's patrimonial position, their insolvent estate had clearly been affected thereby. (Paragraph [18] at 153C - C/D.)

Held, further, that, if the averments in the plaintiffs' particulars that they had brought the action with the knowledge and consent of their trustee were accepted as correct, the first and second plaintiffs were not suing 'without reference' to their trustee and E were not, accordingly, purporting to act in terms of s 23(6) of the Act. (Paragraph [19] at 153E/F - F.)

Held, further, that the first and second plaintiffs' cause of action against the defendant formed part of their insolvent estate and did not fall within the ambit of any of the claims in s 23 in respect of which they could sue in their own names and without reference to their trustee. The excipient's assumption that the F exception should succeed if it were found that the first and second plaintiffs' claim did not fall within the ambit of the provisions of s 23 was incorrect. (Paragraphs [20] and [21] at 153F/G - H.)

Held, further, that sequestration did not deprive an insolvent of his locus standi other than in those instances mentioned in s 23(6). Where an insolvent's trustee refused to institute proceedings for the recovery of any benefit to which the G insolvent estate was entitled, the Courts recognised the right of an insolvent, which existed by virtue of his or her reversionary interest in the insolvent estate, to institute such proceedings in his or her own name. (Paragraph [22] at 153H - H/I and I - J.)

Held, accordingly, that the most plausible inference to be drawn from the fact that the first and second plaintiffs' trustee had knowledge of and had consented to the institution of the action by them H in their own names was that he was not...