NDOU J: Basically,
the plaintiff seeks an order that he be declared to be an owner of 50% shares
in the 1st and 2nd defendants. The issues for determination, as agreed by the parties at the pre-trial conference are in the
following terms:
“1. Whether
or not plaintiff is entitled 50% shares in 1st and 2nd
defendants.
2. Whether
or not when plaintiff purchased shares from 2nd defendant, stand
number 5157A Bulawayo was represented to be part of 2nd defendant's
asset.”
At the commencement of the trial the
1st, 2nd and 3rd defendants amended their plea
to question the plaintiff locus standi
to institute the action in this matter as his estate had been sequestrated and
as such rested in the trustee appointed by this court. In his testimony the plaintiff conceded that
he had not done so because he transacted behind the trustee's back, so to
speak. He conceded the purchase of the
shares in the 2nd defendant from the trustees in contravention of
the order of this court which sequestrated his estate and appointed the
trustee. At the close of the plaintiff's
case the 1st, 2nd and 3rd defendants applied
for absolution from the instance. The
basis of the application is that the plaintiff acquired the shares in
contravention of a court order (i.e. with dirty hands) and further that he has
no locus standi to institute these
proceedings without authority of the trustee as his estate was rested in the
hands of such trustee.
It is beyond dispute that at the
time of the trial the plaintiff's estate was still under sequestration –
section 23(1) of the Insolvency Act [Chapter 6:04]. As far as the entering into the contract
between plaintiff and 2nd defendant, I agree with Mr Ndlovu for the plaintiff, that section
23(1) has to be read with sections 35(2) and 38. These latter provisions state that the fact
that a person entering into any contract is insolvent shall not affect the
validity of that contract provided that the insolvent does not thereby purport
to dispose of any property of the insolvent estate or adversely affect the
estate – Marais v Engler Earthworks (Pty)
Ltd 1998(2) SA 450 (E) and Grevler
v Landsdown en'n Andre 1991(3) SA 175
(T). The transaction in this matter is
not prejudicial to the insolvent estate so the provisions of section 35(2) supra apply. Although the provisions of section 35(1)
allow the insolvent to sue in his own name in certain instances, in casu, the plaintiff should at this
stage have brought the matter to attention of the trustee. The issue raised by the provisions of
sections 35(2) and (10), supra.
Because at this stage I cannot
evaluate and reject the plaintiff's evidence, it is difficult for me to decide
that section 35(2) and (10), supra, apply in
casu – Gascoyne v Paul & Hunter
1917 TPD 170, The Civil Practice of the
Supreme Court of South Africa, (4th Ed) – Herbstein and Van
Winsen at 683 and Sithole v P G Industries (Pvt) Ltd HB-47-05.
Accordingly, I dismiss the
defendants' application for absolution from the instance, at the close of the
plaintiff's case.
R Ndlovu & Co, plaintiff's legal practitioners
Calderwood, Bryce Hendrie & Partners, 1st,
2nd and 3rd defendants' legal practitioners
