CCT187/13

[2014] ZACC 20

2014 (8) BCLR 922 (CC)

Van der Westhuizen J

13 May 2014

19 June 2014

http://hdl.handle.net/20.500.12144/3747

Application for leave to appeal against a judgment of the Full Court of the Kimberley High Court: De Klerk v Griqualand West Corporative CC (1353/2010) [2013] ZANCHC 29 (30 August 2013). The earlier judgment of the Kimberley High Court is: Griqualandwes Korporatief Beperk v De Klerk, Case No 1353/2010, 28 November 2011.

Section 8(g) of the Insolvency Act 24 of 1936 — section 86 of the National Credit Act 34 of 2005 — debtor applying for debt review — purported debt-restructuring proposal as act of insolvency — creditor granted sequestration order by lower court Leave to appeal — Court reluctant to determine factual issues — lower courts concluded debtor is factually insolvent — factual insolvency is an independent basis for sequestration — debtor lacks prospects of success. Leave to appeal — not in the interests of justice to determine issue that may be covered by statutory amendment. Application for leave to appeal against a judgment of the Northern Cape High Court which declared that a debt-restructuring proposal constituted an act of insolvency and found the applicant to be factually insolvent on that basis. The Court confirmed the High Court’s finding. It was also held that the applicant would not benefit from a finding on whether a debt-restructuring proposal in terms of section 86(1) of the National Credit Act 34 of 2005 constitutes an act of insolvency in terms of section 8(g) of the Insolvency Act 24 of 1936 as it was not in the interests of justice for the court to determine the issue. This was because remedial legislation, assented to by the President shortly after the hearing, was aimed at resolving the alleged tension between the National Credit Act and the Insolvency Act. The application was dismissed. Judgment: Van der Westhuizen J (unanimous)