ROTHMANS OF PALL MALL (ZIMBABWE) LIMITED v JACKSON 1992 (2) ZLR 50 (H)

Flynote

Insolvency — locus standi of creditor who has damages claim arising from theft to petition for insolvency of debtor — locus standi of spouse to intervene to oppose D petition

Headnote

The petitioner was the ex-employer of the respondent. The respondent had stolen an unknown amount of money from the petitioner and had then fled the country. The petitioner had then applied for the sequestration of the respondent's estate. The husband of the respondent, who was married to her out of community of property, also sought to intervene in the case to oppose the petition declaring his wife insolvent. He did so without seeking to be joined as a party. He sought discharge of the provisional order of sequestration, claiming that some of the property attached belonged to him.

Held, that although the petitioner's claim was founded in delict and the full amount of the claim was unknown, a portion of it was proved and was therefore a liquid claim. This was sufficient to give the petitioner the right to petition for insolvency.

Held, further, that the husband was entitled to file affidavits and to be heard as an interested party to oppose the petition of the creditor to have his wife's estate declared insolvent. He could do this without seeking to be joined as a party in the case. However, this would have entitled him only to an order staying or excluding the vesting of his property in the trustee but not to discharge of the provisional insolvency order against her.

Held, further, that the respondent's flight constituted an act of insolvency and the provisional sequestration order was confirmed with costs against the intervening spouse.