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MRL3701 PORTFOLIO MEMO - MAY/JUNE 2022 - SEMESTER 1 - WITH DETAILED BIBLIOGRAPHY R499,99   Add to cart
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  5. MRL3701 - Insolvency Law

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MRL3701 PORTFOLIO MEMO - MAY/JUNE 2022 - SEMESTER 1 - WITH DETAILED BIBLIOGRAPHY

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MRL3701 PORTFOLIO MEMO - MAY/JUNE 2022 - SEMESTER 1 - WITH DETAILED BIBLIOGRAPHY Question 1 1.1 Identify the problem / issue that was faced by the court in Magnum Financial Holdings (Pty) Ltd (in liquidation) v Summerly and another NNO 1984 (1) SA 160 (W) and give reasons why the court in thi...

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  • June 22, 2022
  • 19
  • 2021/2022
  • Exam (elaborations)
  • Questions & answers

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  • mrl3701 portfolio memo mayjune 2022 semester 1 with detailed bibliography

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Question 1


1.1 Identify the problem / issue that was faced by the court in Magnum Financial
Holdings (Pty) Ltd (in liquidation) v Summerly and another NNO 1984 (1) SA
160 (W) and give reasons why the court in this case was satisfied that the
applicants had made out a case for the relief sought. (5)


Magnum Financial Holdings


FACTS: applicant made out a case for the relief sought. (The urgent grant of a
provisional sequestration order) There had been sufficient service of the papers on the
trustee of the trust. (Trustee in terms of the law of trusts, who administers the trust
property for the benefit of the trust beneficiaries, not a trustee in terms of insolvency
law). The one provisional liquidator of the applicant company had locus standi to apply.
The applicant company had a claim against the trust company for approximately
R1.6million, which was due and payable. An act of insolvency in terms of S8 (g) had
been committed and trust estate was sequestrated urgently. And necessary security
bond had been lodged and annexed to the court papers.


PROBLEM: whether a trust could, at law, be sequestrated.


FINDING: No South African case has dealt with the question in terms of S9 (1) and
the definition of a debtor. The court relied on Ex Parte Milton, which found that a trust
fell within the meaning of a debtor. Although a trustee could borrow money and as a
property owner, be liable for rates and taxes – the creditors would be paid ONLY from
the trusts property (could not sequestrate the estate of donor of trust property,
beneficiaries or the trustee).

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