CASE NO: 9208/08
DATE: 16/04/2010
IN THE MATTER BETWEEN
JUAN LATEGAN STRYDOM	APPLICANT
AND

JUDGMENT
MAKGOBA. J

[2] The present application is aimed at reviewing and setting aside the decision of the fourth respondent in authorising the insolvency enquiry to proceed before the first respondent. The applicant calls for a review and setting aside of the following:
2.1	the order by the fourth respondent in terms whereof an insolvency enquiry-is to proceed before the first respondent;
2.2	the whole of the proceedings of the insolvency enquiry which proceeded before the first respondent; all witness subpoenas issued by the first respondent;
2.3	all directions given by the first respondent pursuant to the subpoenas issued as well as the evidence given in terms thereof:
2.4	the warrants for arrest pursuant to the alleged non-compliance with the aforesaid directions;
2.5	

[3] The fifth respondent is the second and third respondents' attorneys of record. It is not understood why the applicant chose to cite the fifth respondent in these proceedings and more so why a special order of costs is sought against the fifth respondent. In my view the circumstances of this case do not justify the inclusion of the fifth respondent as a party to these proceedings.

[5] The relevant portion of section 152(2) of the Insolvency Act. no 24 of 1936. reads as follows:
"If at any time after the sequestration of the estate of a debtor ... the Master is of the opinion that the insolvent ... is able to give any information which the Master considers desirable to obtain ... he may by notice in writing delivered to the insolvent ... summon him to appear before the Master or before a magistrate or an officer in the public service mentioned in such notice ... and to furnish the Master or the officer before whom he is summoned to appear with all the information within his knowledge concerning the insolvent or considering the insolvent's estate or the administration of the estate."

Personal freedom, therefore, becomes subordinate to the public interest."

[8] Counsel for the applicant argued further that the present case is to be distinguished from the abovementioned cases in that, in the present case, the decision which the applicant seeks to attack, goes beyond the mere decision to hold an enquiry. That it is a decision to transfer an enquiry from where it had begun before the Master to the first respondent, being a magistrate in a different magisterial jurisdiction. I shall provide an answer to this argument when 1 later deal with the question as to whether the applicant was prejudiced by the transfer and subsequent holding of the insolvency enquiry in Kempton Park.

[10] The applicant goes further to attack the Master's decision to hold the enquiry before a magistrate on a point of jurisdiction. Counsel argues that the decision resulted in the "transfer" of a previously closed enquiry to a magistrate in a jurisdiction where the insolvent was not residing, neither at the time nor at the time of the sequestration and to a district from which none of the witnesses were from. That it involved costs, inconvenience, the difficulty in obtaining legal representation and the whole of the disputes regarding the issues of subpoenas.

[11] This ground of objection based on jurisdiction is ill-founded. The insolvency proceedings before a magistrate are not held in terms of the Magistrates' Courts Act or the Rules of that court. It is proceedings in terms of section 152(2) of the Insolvency Act. No witness and neither the insolvent can object to a particular magistrate conducting the enquiry on the grounds that he is not resident within the jurisdiction of that magistrates court.

[12] An important consideration that may play a role is whether the location where the enquiry is to be held will impose undue inconvenience on the witness summoned to appear before the magistrate.   In my view no undue inconvenience will be caused by holding the enquiry in Kempton Park taking into account the distance between Kempton Park and Pretoria and/or Johannesburg. If for instance the Master ordered the enquiry to be held before a magistrate in Durban, it will be a clear case where witnesses and the insolvent will be unduly inconvenienced and required to incur unnecessary additional costs to attend the enquiry.

[14] It should be pointed out that the best opportunity for the applicant to have brought the present review proceedings was before the enquiry commenced before the first respondent. It is common cause that the applicant has already attended the enquiry on several occasions, allowed the enquiry to be conducted and gave evidence at the enquiry. Only when the shoe starts to pinch because there are orders made against him (amongst others, order to produce documents and warrant of arrest) the applicant now turns around and object to the enquiry being continued with.

[15] It is common cause that the first respondent issued a subpoena for the applicant's initial appearance before him. Section 152(2) requires any subpoena to be issued by the Master. The second and third respondents concede that the first respondent had no authority to issue a subpoena. Counsel for the respondents argued that the fact that the subpoena to secure the applicant's attendance at the enquiry by the first respondent is a formal defect or irregularity does not taint the legality of the proceedings already held thus far. He further submitted that the applicant has failed to show that he has suffered substantial injustice thereby and accordingly has not shown why the subpoena should be set aside.

[16] I agree with counsel's above submission. The applicant has complied with the subpoena and has attended the enquiry. On subsequent sittings of the enquiry he was warned to appear and he complied. The applicant cannot after he has attended the enquiry pursuant to the irregular subpoena apply for the subpoena to be set aside. The question whether the subpoena was validly issued has now become academic and of no consequence. In any event the time to object to an invalid subpoena is before you comply with it and not after you have complied with it.

[17] It is only the initial subpoena issued in terms of section 152(2) of the Insolvency Act that is required to be issued by the Master. In terms of section 152(3) the first respondent had the authority to issue a written notice to the applicant to appear before him again and require him to submit any further information or any book or documents specified in such notice.

[18] The orders and directions given to the applicant to produce documents at the enquiry were given by a validly constituted tribunal in the applicant's presence. The applicant has not complied with the orders and has not provided an acceptable excuse for his failure to do so. The first respondent was accordingly entitled to issue a warrant of arrest for the applicant.

[19] It is regrettable to note that the applicant has steadfastly refused to comply with the orders and directions of the first respondent. All that the applicant has to do to escape his arrest and incarceration is to comply with the orders. The choice is his. The present application by the applicant is clearly just an effort to delay and frustrate the second and third respondents in the execution of their duties as trustees of the applicant's insolvent estate.

[20]    The application is accordingly dismissed with costs.

EMMAKGOBA

HEARD ON: 29 MARCH 2010 FOR APPLICANT: N DAVIS SC

c/o HENDRIETTE MULLER ATTORNEYS