Breda NO v The Master of the High Court, Kimberley and Others

The appellant, Lanel Breda NO, acting as executrix in the insolvent estate of her late husband, sought to review and set aside a decision of the Assistant Master admitting a creditor’s claim by the third respondent, Petrus Arnoldus Els, at the first meeting of creditors under s 44 of the Insolvency Act 24 of 1936. The claim, based on alleged loans made between 2006 and 2008 and supported mainly by handwritten IOUs, was admitted provisionally in the amount of R3.5 million. The appellant challenged the admission on the grounds that the claim had prescribed on the face of the documents, and that the affidavit supporting the claim was invalid because it was commissioned by an attorney allegedly having an interest in the matter. The underlying dispute formed part of broader tensions concerning the sequestration and administration of the deceased estate and the appointment of trustees.

The appeal was dismissed with costs, and the decision of the Assistant Master admitting the third respondent’s claim remained in force.

The case clarifies the limited and provisional role of a presiding officer at meetings of creditors under s 44 of the Insolvency Act and confirms that questions of prescription fall primarily within the trustee’s functions under s 45. It also authoritatively interprets the post-1980 regulatory framework governing commissioners of oaths, confirming that attorneys with an interest may validly commission affidavits required to be furnished to state officials, thereby overruling earlier restrictive approaches.