My estate had been finally sequestrated ...

Asked by LouisV on 17-09-2020 20:29:16
Question posted in the General Law category relating to Gauteng

My estate had been finally sequestrated on Friday 11 September 2020. The judge made some grave mistakes in her judgment. There are enough reasons to lodge an appeal againt the final order. I have two question in this regard. 1- How long do I have to lodge an appeal and 2 - Must I, when giving notice of my intention to lodge an appeal submit full documentary reason and proof or is the first step to inform of my intentions and then send the documentary reasons and proof? 

Further information relating to Question:

A Provisional Trustee had been appointed and I am not sure if he had been finally appointed. I have to take it for granted that he will be appointed as Trustee

Answer to the Question

Posted by Att. Patrick on 18-09-2020 00:09:22

Hi there and thank you for your question,

I am a practicing attorney based in South Africa and I will assist you with your question. Please feel free to ask as many follow up questions in order to clarify your question. If you have a new question, you must please open a new thread.

The Master will appoint a provisional trustee to administer your estate, and at the first meeting of creditors your creditors will jointly vote on the appointment of the actual trustee. Most of the time the provisional trustee becomes your final trustee simply because that's the guy who starts communicating with your creditors, so he/she builds up a little bit of a relationship with them. 

The rule that applies to an application for leave to appeal in the high court is rule 49, which can be found here: https://www.justice.gov.za/legislation/rules/UniformRulesCourt[26jun2009].pdf

In terms of rule49(1)(b), you have 15 business days to apply for leave to appeal against the order that you are appealing against, but you should perhaps not wait that long.

You will need to file a notice of application for leave to appeal and you will need to set out the reasons why you think the judge was incorrect and why another court would come to a different conclusion.

The application for leave to appeal is then set down before the same judge who granted your sequestration order.

If the appeal to the full bench of the court is granted, you will then have 20 business days to deliver the notice of appeal which will then be heard before the full bench on a date arranged with the Registrar.

You can read more in rule 49(3) about the notice of appeal, but for the meantime, you need to focus on the application for leave to appeal which is the quicker thing to do. 

You don't give an intention to lodge an appeal, you first need to apply for leave to appeal in terms of rule 49(1) - which is what I've set out above.

The application for leave to appeal is normally about 3 pages long, and sets out (in paragraphs) all of the reasons why you think that the judge was wrong and why you think that another court would come to a different conclusion.

I hope that this assists you in your questions?

If there is a part of the answer which you need more advice on, or clarity please continue in this same thread instead of opening a new question.

Att. Patrick

Please remember this is a dialog if you have follow up questions please use the REPLY button and ask. If I did not answer the question you thought you were asking, please respond with the specific question you wanted answered. I hope you found my answer helpful, and you have finished asking your questions, please click on the GREEN ACCEPT button in order to mark the question as closed.

Answer Accepted

This answer was accepted on 18-09-2020 04:56:34

If you would like to view the entire answer, you will need to either login or register a FREE account.

Disclaimer

DISCLAIMER: Advice or answers from Lawyers on SA Legal Advice are not substitutes for the proper advice of an Lawyer. SA Legal Advice is a public forum and questions and responses are not private or confidential or protected by the attorney-client privilege. The Lawyer who assists with your question is not your Lawyer, and the response above is not to be considered to be legal advice. You should not read this response to propose specific action or address specific circumstances, but only to give you a sense of general principles of law that might affect the situation you describe. Application of these general principles to particular circumstances must be done by a lawyer who has spoken with you in confidence, learned all relevant information, and explored various options. Before acting on these general principles, you should hire a lawyer licensed to practice law in the jurisdiction to which your question pertains. The responses above are from individual Lawyers, not SA Legal Advice. The site and services are provided “as is”. This site is not for emergency questions which should be directed immediately by telephone or in-person to qualified professionals. Please carefully read the Terms of Service.