Hendrik Petrus Hough v Mzubanzi Sisilana and Others

The applicant’s estate was finally sequestrated by the Western Cape High Court at the instance of Seardel Investment Corporation Limited, based on several taxed and allocated bills of costs. The applicant instituted review proceedings under s 151 of the Insolvency Act 24 of 1936 challenging, among other things, the Assistant Master’s admission of certain claims against his estate at a creditors’ meeting held under s 40(1) of the Insolvency Act. Central to his challenge was the contention that Seardel lacked locus standi as creditor because its attorneys, Edward Nathan Sonnenbergs Inc (ENS), a personal liability company, allegedly practised unlawfully without holding a Fidelity Fund certificate in the company’s own name. The High Court dismissed the review application, and applications for leave to appeal were refused by both the High Court and the Supreme Court of Appeal. The applicant then brought an application under s 17(2)(f) of the Superior Courts Act 10 of 2013 seeking condonation and reconsideration of the refusal of leave to appeal.

Condonation was granted, but the application under s 17(2)(f) of the Superior Courts Act 10 of 2013 was dismissed with costs on the basis that no exceptional circumstances were established.

The decision clarifies the narrow scope of s 17(2)(f) of the Superior Courts Act, confirming that reconsideration of a refusal of leave to appeal by the Supreme Court of Appeal is available only in truly exceptional circumstances. It also affirms the prevailing interpretation of the Attorneys Act that personal liability companies of attorneys are not required to hold Fidelity Fund certificates in their own name where their practitioner-directors hold such certificates, reinforcing regulatory practice within the legal profession.