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Founding Affidavit-795.Pdf IN THE CONSTITUTIONAL COURT OF SOUTH AFRICA CASE NO. In the matter between: MICHAEL LANE N.O. First Applicant EILEEN FEY N.O. Second Applicant and HEINO DABELSTEIN & OTHERS Respondents AFFIDAVIT I, the undersigned, ROBERT DE ROOY hereby make oath and say: 1. 1.1 I am the attorney of record of Applicants’ herein. 1.2 The facts deposed to herein are true and correct and fall within my personal knowledge, unless where otherwise indicated, in which latter case I verily believe the information conveyed to me to be true and correct. 2 1.3 I am duly authorised by the Applicants to depose to this affidavit on their behalf. 1.4 The parties in these proceedings will be referred to with reference to their status in this application. BACKGROUND 2. 2.1 The proceedings in the Court of first instance (the Cape High Court) were instituted by three Hamburg-creditors, namely Messrs Holz, Heick and Rekur Klinik GmbH, (a company registered in Germany) in the name of the provisional trustees (Michael Lane N.O. and Eileen Fey N.O, the Applicants herein) of the Insolvent Estate of one Jürgen Harksen ("Harksen"). The latter had been provisionally sequestrated on 21 September 1995, and was thereafter finally sequestrated on 16 October 1995 in the Cape High Court. The above proceedings were instituted in terms of Section 32(1)(b) of the Insolvency Act, No. 24 of 1936 ("the Insolvency Act"). 2.2 The above Hamburg-creditors sought to attach: (a) the claims of First to Thirteenth Respondents, who were all peregrini of the Cape High Court and who at all material times were resident in the Federal Republic of Germany, amounting to DM 68 007 480, against Harksen's Insolvent Estate; and (b) R696,47 held in trust by the firm of attorneys Fairbridges, on behalf of such Respondents; 3 for purposes of founding the jurisdiction of the court of first instance in an action to be instituted against the Respondents, for the setting aside of certain dispositions made to them by Harksen. 2.3 A rule nisi and interim order: (a) for the attachment of the said claims to confirm jurisdiction; and (b) for an interdict restraining Fairbridges from dealing with the said R696,47 in its trust account, pending the determination of the question whether such monies should be attached; was granted on 30 March 1998 by Viljoen AJ, and the attachment of both the above claims and the said sum of monies was confirmed by Van Zyl J on 24 November 1998. 3. 3.1 An application for leave to appeal against the confirmation of the rule nisi was launched, and leave to appeal to the Supreme Court of Appeal was granted to the Respondents on 16 March 1998. 3.2 The appeal was heard on 14 November 2000 by the Supreme Court of Appeal (Hefer ADCJ, as he then was, presiding). 4. 4.1 Judgement was given by the Supreme Court of Appeal (per Hefer ADCJ) on 28 November 2000. 4.2 A copy of the above judgement was annexed to this application as annexure "A". 4 4.3 The judgement dealt with only one of the various grounds of appeal relied upon by the Respondents, namely the question whether the Applicants had made out a prima facie case for the relief that they intended to pursue against Respondents, and found that Applicants had failed to do so. 4.4 The Supreme Court of Appeal accordingly made the following order (page 10 of the judgement): " The appeal is accordingly upheld with costs, including the costs of two counsel and the costs occasioned by the application to adduce further evidence. The order of the Court a quo is set aside and replaced with an order discharging the rule nisi with costs including the costs of two counsel." THE EFFECT OF THE ABOVE RULING 5. 5.1 The Respondents are peregrini of the Courts of South Africa. 5.2 The common law of South Africa requires that, before a South African Court will have jurisdiction to entertain an action against a peregrine defendant: (a) an original ground of jurisdiction must be present; and 5 (b) an attachment or arrest of the property or person of the Defendant must take place, or the Defendant must submit to the jurisdiction of the Court (to confirm the jurisdiction of the court); See: Veneta Mineraria Spa v Carolina Collieries (Pty) Ltd 1987 (4) SA 883 AD at 894B (c) but where no original ground of jurisdiction exists, that an attachment or arrest must take place to found the jurisdiction of the Court. 5.3 Failing such attachment or arrest, or a submission to jurisdiction, and notwithstanding the existence of a ground of jurisdiction that would have vested jurisdiction in such Court in an action between two incolae litigants, the Court will not have any jurisdiction to entertain the proceedings against the peregrine Defendant. 6. 6.1 The effect of the order by the Supreme Court of Appeal was to set aside the attachment ordered by the Cape High Court, that vested jurisdiction in such latter court, by the confirmation of the jurisdiction that would have sufficed in an action between two incolae. 6.2 By reason of such order (of the Supreme Court of Appeal), it was effectively ruled that the Cape High Court had no jurisdiction to entertain the action against the Respondents (that the Applicants wished to pursue in the Cape High Court). 6 6.3 Such order accordingly denied the Applicants any access to a Court that could properly, after ventilation of all the issues between the Applicants and Respondents, and after presentation of all oral evidence and/or documentary evidence, consider all such evidence before it, so as to bring out a fair, just and proper judgement in the disputes between the parties. THE CONSTITUTIONAL VIOLATIONS 7. 7.1 I respectfully say that the order by the Supreme Court of Appeal: (a) violated the Applicants' constitutionally entrenched right of access to a court for purposes of having the disputes between them and the Respondents resolved by the application of the proper law relating to trial actions, and relating to the legal principles upon which their cause of action was based, in a fair public hearing; and (b) unreasonably and unjustifiably discriminated against Applicants and violated their right in terms of Section 9 of the Constitution of the Republic of South Africa, Act No. 108 of 1996 (hereinafter "the Constitution"), to be treated on an equal footing to Plaintiffs litigating against incolae Defendants, before the law, by imposing requirements (from the common law) upon Applicants that are more onerous than those applicable to Plaintiffs litigating against incolae Defendants; 7 (c) ignored, or failed to familiarise itself with, or failed to consider, crucially important evidence and/or allegations made on behalf of the Applicant in their affidavits, thereby violating the Applicants’ right to a fair trial and to fair justice. 7.2 The Applicants accordingly contend that their rights in terms of Sections 9 and 34 of the Constitution have been violated by the said order and judgement of the Supreme Court of Appeal. 7.3 The grounds upon which Applicants rely in such regard are set out hereinbelow. SUMMARY OF GROUNDS 8. 8.1 The grounds upon which Applicants rely are broadly summarised as set out hereinbelow: (a) The Supreme Court of Appeal erred in finding (factually) that Applicants had failed to make out a prima facie case for the cause of action to be pursued in the action to be instituted against the Respondents; (b) The requirements of: (i) an attachment, arrest or submission to jurisdiction under circumstances where an original ground of jurisdiction exists; 8 (ii) having to make out a prima facie case with reference to evidence (as opposed to the averments that suffice for such purposes in a Particulars of Claim); imposed upon a litigant in the position of the Applicants, wishing to litigate against a peregrine Defendant, a more onerous burden, than what is required from a Plaintiff litigating against an incola Defendant under circumstances where; (c) no reasonable or justifiable ground for such additional and/or higher burden, and/or limitation of such Plaintiff's constitutional rights, exists. THE FACTUAL FINDING THAT APPLICANTS FAILED TO MAKE OUT A PRIMA FACIE CASE THE CAUSE OF ACTION: APPLICABLE LEGAL PRINCIPLES 9. 9.1 Section 32(1) of the Insolvency Act stipulates: " (a) Proceedings to recover the value of property or a right in terms of Section 25(4), to set aside any disposition of property under Section 26, 29, 30 or 31 of for the recovery of compensation or a penalty under Section 31, may be taken by the trustee. (b) If the trustee fails to take any such proceedings they may be taken by any creditor in the name of the trustee 9 upon his indemnifying the trustee against all costs thereof." 9.2 A disposition without value can be set aside in terms of Section 26 of the Insolvency Act, under appropriate circumstances. A voidable preference can similarly be set aside in terms of Section 29 of the Act, and an undue preference to creditors can be set aside in terms of the provisions of Section 30 of such Act. 9.3 The definition of a "disposition" is set out in Section 2 of the Insolvency Act: " "Disposition" means any transfer or abandonment of rights to property and includes a sale, lease, mortgage, pledge, delivery, payment, release, compromise, donation or any contract therefore, but does not include a disposition in compliance with an order of the Court; …" (emphasis supplied) THE CAUSE OF ACTION: THE FACTS 10.
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