PVL 3704 Ex parte Snooke 2014 _5_ SA 426 _FB_.

IN THE HIGH COURT OF SOUTH AFRICA FREE STATE DIVISION, BLOEMFONTEIN Case No.: 752/2014 In the ex parte application of JOHN WILLIAM SNOOKE Applicant ID NO: […] _____________________________________________________ JUDGMENT BY: DAFFUE, J HEARD ON: 24 APRIL 2014 _____________________________________________________ DELIVERED ON: 27 JUNE 2014 _____________________________________________________ I. INTRODUCTION [1] The applicant, John William Snooke, married out of community of property, applies for rehabilitation of his estate, but this is clearly wrong: an estate is sequestrated, but an insolvent person is rehabilitated. In reality he seeks his rehabilitation in accordance with s 124(3) of the Insolvency Act, 24 of 1936 (“the Act”). [2] This is an unopposed application. Both the Master and the remaining trustee have no objection to granting of relief. When the matter came before me initially on 13 March 2014 I raised certain concerns which have now been addressed although not to my satisfaction. II. APPLICANT’S INSOLVENCY [3] On 2 December 2010 applicant’s application for the voluntary surrender of his estate was accepted. [4] On 15 December 2010 Ms E M van Wyk consented in writing to taxation of the bill of costs of applicant’s attorney in her absence. [5] Taxation of the bill of costs took place on the same day whereafter the Taxing Master affixed his allocatur to the bill. The total amount of the taxed bill is R40 229.99. Not a single sent has been taxed off. I refer to this issue later again. [6] In a first report in the present application the assistant Master reported that the Master had appointed Ms Van Wyk and Mr T J H Potgieter as provisional trustees on 28 December 2010. They were eventually finally appointed as trustees on 11 April 2011. If this information is correct, Ms Van Wyk consented to taxation of the bill of costs prior to her appointment as provisional trustee. Nothing turns around this, save that I have serious concerns about the amount of costs taxed out to which I shall return later. In my view Ms Van Wyk would have frowned upon the excessive fees 2 charged if she took the trouble to scrutinise the bill of costs, which she in all probabilities failed to do. [7] There is no indication which creditors nominated Ms Van Wyk and Mr Potgieter for appointment as provisional trustees, if they were indeed nominated. What is apparent is that they were finally appointed by the Master after the first meeting of creditors where no voting took place as no claims were proved. [8] No creditors lodged any claims against the insolvent estate and consequently no claims were proved. Therefore this application is brought in accordance with the provisions of s 124(3) of the Act. III. SECTION 124(3) OF THE INSOLVENCY ACT 24 OF 1936 [9] By far the majority of rehabilitation applications are brought in terms s 124(2)(a) of the Act in that claims were proved against the insolvent estates of the applicants and in circumstances where creditors were not paid in full. Such applicants have not been sequestrated previously and have not committed any of the offences stipulated in s 124(2)(c) of the Act. Such applications may be brought once a period of four years from date of sequestration has lapsed on condition that a period of twelve months since approval of the first and final liquidation and distribution account has lapsed. 3 [10] As mentioned, in casu no claims have been proved against the insolvent estate and consequently s 124(3) applies which subsection reads as follows: “(3) After the expiration of a period of six months as from the sequestration of an estate, the insolvent concerned may apply to the court for his rehabilitation- (a) if he has, not less than six weeks before making the application, given to the Master and to the trustee, if any, of his estate notice in writing, and published in the Gazette a notice of his intention to make the application; and (b) if, at the time of making the application, no claim has been proved against his estate; and (c) if he has not been convicted of an offence mentioned in paragraph (c) of subsection (2); and (d) if his estate was not sequestrated under any law prior to the sequestration which he desires to end.” IV. THE FACTUAL MATRIX [11] It is common cause that applicant complied with the formalities prescribed by s 124(3) in that: 11.1 A period of six months has lapsed since 2 December 2010; 11.2 He has given 6 weeks written notice to the Master and trustee (Mr Potgieter passed on in the meantime and notice was given to Ms Van Wyk); 11.3 Notice of intention to apply for rehabilitation was also published in the Gazette not less than 6 weeks prior to hearing of the application;