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IN THE HIGH COURT OF SOUTH AFRICA BOPHUTHATSWANA PROVINCIAL DIVISION

CASE NO.: 2155/08

In the matter between:

ELIZABETH JACOBA ELLIS APPLICANT

EX PARTE APPLICATION LANDMAN J

DATE OF HEARING 30 OCTOBER 2008

DATE OF JUDGMENT 06 NOVEMBER 2008

FOR THE APPLICANT MR M WESSELS

JUDGMENT

[1] The estate of the applicant, Ms E J Ellis, was sequestrated on 14 April 2005. She has repaid the contribution of R576.60. She seeks an order that she be rehabilitated. The trustee, in his report to the Master, offers no objection to the granting of the application.

[2] The application, save that the photocopy of the notice in the Government Gazette is obscured in parts, and save for the absence of the Master's recommendation, is in order.

[3] The Master says, inter alia, the following in his report:

"5.

The application is brought in terms of section 124(2) (a) of the Insolvency Act 1936, (Act no. 24 of 1936) and in this regard I confirm the following:

1. That I have nothing on record to indicate that the provisions of Section 124(2)(b) or (c) of the Insolvency Act, 1936 (Act no. 24 of 1936) are applicable to the insolvent.

2. That twelve months have lapsed since confirmation of the First Account.

3. That the four year period from the date of sequestration referred to in Section 124(2) of the Insolvency Act, 1936 (Act no. 24 of 1936) has not expired, therefore expecting my recommendation for rehabilitation be granted.

8.

My records also indicate that contribution was due and payable. In Ex parte Helps 1938 NPD 143 it was held that there is no obligation on the applicant to reimburse creditors who paid contribution. See also Ex parte Kruqer 1950 (2) SA 553 (O) and Vorster and Steynes en andere 1981 (2) SA 831 (O).

9.

I abide by the decision of the honourable court (sic)."

[4] It is entirely appropriate for the Master to say he abides by the decision of this court. But for this application for rehabilitation to be entertained within 4 years of the date of sequestration, it is necessary that the Master make a recommendation. Paragraph 5 of the Master's report is the only part which could be regarded as dealing with this requirement. Unfortunately it is ambiguous. So much so that it does not constitute a recommendation.

[5] The Master must make a firm recommendation (one way or the other). He must also set out how he arrives at his recommendation. Squires J in Ex Parte Porrit 1991 (3) SA 866 (N) at 869H - 872A explained what a master should take into account in making a recommendation.

[6] In the result this application is postponed to 13 November 2008 for the Master to make a recommendation on whether the applicant should be rehabilitated or not before the expiry of 4 years from the date of her sequestration.

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