T his case considers what a court’s options are when confronted with disputes of fact in motion proceedings.
It also highlights the mischief of launching motion proceedings in the hope that the matter will be referred to trial thereby stealing a march on other deserving cases instituted by way of action proceedings at the outset.
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T his case concerns judicial deference on matters that fall outside their area of proficiency. It posits that the determination of whether a product fits the definition of a “medicine” or a “medical device” is not simply an exercise in interpretation of a statute but rather entails a decision which involves a highly technical and evidence-laden evaluation of deeply contested medical and scientific matters.
The MCC is best equipped to perform that exercise, not a Court of law. In so finding, the case parts ways with 2 previous judgments of the Pretoria High Court which held in 2014 and 2015 that because similar products are classified as “medical devices” in other so-called “benchmark” countries, they must be taken as being similarly classified in South Africa too.”
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O ften litigants use sequestration proceedings in order to achieve a result for which such proceedings (and the legislation regulating them) is not intended. This is one such case.
The case also considers the proper meaning of s 10 of the Insolvency Act, particularly in relation to the requirement that sequestration must, in the opinion of the court, be in the interests of creditors.”
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