CCT62/14

[2014] ZACC 38

2015 (3) BCLR 358 (CC)

2015 (3) SA 1 (CC)

(2015) 36 ILJ 583 (CC)

Leeuw AJ

2 September 2014

19 December 2014

http://hdl.handle.net/20.500.12144/3759

Application for leave to appeal against a judgment of the Cape Town High Court: Investec Bank Limited v Stratford and Another (10394/2012) [2013] ZAWCHC 207 (14 August 2013).

Insolvency Act 24 of 1936 — section 9(4A) — “employees” includes domestic employees Insolvency Act 24 of 1936 — section 9(4A) — peremptory nature of “furnish” — petition must be made available in a manner reasonably likely to make it accessible to the employees — section cannot be used as a technical defence Insolvency Act 24 of 1936 — section 12(1) — advantage to creditors — means a reasonable prospect that some pecuniary benefit will result — “advantage” is broad and should not be rigidified. Application for leave to appeal concerning the constitutional validity of section 9(4A) of the Insolvency Act 24 of 1936 insofar as employers are not required to give domestic employees (as opposed to business employees) notice of a petition to sequestrate the estate of the debtor. The Court noted that section 39(2) of the Constitution requires courts in interpreting legislation to promote the spirit, purport and objects of the Constitution. The Court declared that “employees” in section 9(4A) of the Act did indeed include domestic employees as well as business employees. All employees are thus entitled to be notified of a sequestration petition. However, the Court held that this did not warrant interference with the final sequestration order the High Court granted. The Court also limited the retrospective effect of its interpretation of section 9(4A). The appeal was dismissed. Judgment Leeuw AJ (unanimous).