REPUBLIC OF NAMIBIA
IN THE HIGH COURT OF NAMIBIA, MAIN DIVISION, WINDHOEK
RULING IN TERMS OF PRACTICE DIRECTION 61
Case Title: ALWYN PETRUS VAN STRATEN N.O PLAINTIFF and CHRIS BOTHA DEFENDANT | Case No: I 3655/2015 | |
Division of Court: Main Division | ||
Heard on: 17 August 2023 | ||
Heard before: Honourable Lady Justice Rakow | Delivered on: 21 November 2023 | |
Neutral citation: Van Straten N.O v Botha (I 3655/2015) [2023] NAHCMD 755 (21 November 2023) | ||
Order: | ||
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Reasons for order: | ||
RAKOW J: Introduction
Background
Section 30 of the Insolvency Act 24 of 1936
‘Undue preference to creditors 30.
(a) Disposition of the insolvent’s property to the creditor (the defendant) (b) At a time when the insolvent’s liabilities exceeded his assets (c) with the intention of preferring the defendant above another creditor (d) the defendant had indeed been preferred above the other creditor (e) the insolvent’s estate is thereafter, sequestrated. Discharging the onus
Arguments
Legal considerations
‘In Claude Neon Lights (SA) Ltd v Daniel 1976 (4) SA 403 (A) the Court of Appeal held that when absolution from the instance is sought at the end of the plaintiff's case, the test to be applied is not whether the evidence led by the plaintiff established what would finally be required to be established, but whether there is evidence upon which a Court, applying its mind reasonably to such evidence, could or might (not should or ought to) find for the plaintiff. The phrase 'applying its mind reasonably' requires the Court not to consider the evidence in vacuo but to consider the admissible evidence in relation to the pleadings and in relation to the requirements of the law applicable to the particular case.’
‘(a) (T)his application is akin to an application for a discharge at the end of the case for the prosecution in criminal trials i.e. in terms of s 174 of the Criminal Procedure Act — General Francois Olenga v Spranger5; (b) the standard to be applied is whether the plaintiff, in the mind of the court, has tendered evidence upon which a court, properly directed and applying its mind reasonably to such evidence, could or might, not should, find for the plaintiff — Stier and Another v Henke6 (c) the evidence adduced by the plaintiff should relate to all the elements of the claim because, in the absence of such evidence, no court could find for the plaintiff — Factcrown Limited v Namibian Broadcasting Corporation;7 . (d) in dealing with such applications, the court does not normally evaluate the evidence adduced on behalf of the plaintiff by making credibility findings at this stage. The court assumes that the evidence adduced by the plaintiff is true and deals with the matter on that basis. If the evidence adduced by the plaintiff is, however, hopelessly poor, vacillating, or of so romancing a character, the court may, in those circumstances, grant the application — General Francois Olenga v Erwin Spranger; 8 (e) the application for absolution from the instance should be granted sparingly. The court must, generally speaking, be shy, frigid, or cautious in granting this application. But when the proper occasion arises, and in the interests of justice, the court should not hesitate to grant this application — Stier and General Francois Olenga v Spranger (supra).’ Discussion
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Judge’s signature | Note to the parties: | |
RAKOW J Judge | Not applicable | |
Counsel: | ||
PLAINTIFF: | DEFENDANT: | |
R Heathcote (with him J Strydom) Instructed by Theunissen, Louw & Partners, Windhoek. | P Van Amstel (with him H Stolze) Instructed by Masiza Law Chambers, Windhoek. |
1 See Venter v Volkskas Ltd 1973 (3) SA 175 (T) at 177 -180; Cooper and Another NNO v Merchant Trade Finance Ltd 2000 (3) SA 1009 (SCA) p 1031 par [16] and Pretorius’ Trustees v Van Blommenstein 1949 (1) SA 267 (O) at 278.
2 Gascoyne v Paul & Hunter 1917 TPD 170. In Gordon Lloyd Page & Associates v Riviera 2001 1 SA 988 (SCA).
3 Bidoli v Ellistron T/A Ellistron Truck & Plant 2002 NR 451 HC.
4 Ramirez v Frans and Others [2016] NAHCMD 376 (I 933/2013; 25 November 2016) para 28. See also Uvanga v Steenkamp and Others [2017] NAHCMD 341 (I 1968/2014; 29 November 2017) para 41.
5 General Francois Olenga v Spranger (I 3826/2011) [2019] NAHCMD 192 (17 June 2019), infra at 13 para 35.
6 Stier and Another v Henke 2012 (1) NR 370 (SC) at 373.
7 Factcrown Limited v Namibian Broadcasting Corporation 2014 (2) NR 447 (SC).
8 Supra.
Cited documents 2
Judgment 1
1. | Olenga v Sprangers (3826 of 2011) [2019] NAHCMD 192 (17 June 2019) | 9 citations |
Legislation 1
1. | Insolvency Act, 1936 | 721 citations |