Ex parte Henning is an important case in South African insolvency law.
Contents
Facts
In the applicant’s application for surrender of his estate, it appeared that his wife (to whom he was married out of community of property) had worked for him. He had paid a monthly amount from their joint estate to his creditors.
One of these creditors opposed the application, saying that the surrender of the estate was not to the advantage of creditors, and that he (the opposing creditor) would be better off if the applicant was forced to continue the monthly payments.
Judgment
The court held that nobody could force the applicant’s wife to work if she did not want to. If she stopped working (as, for example, for health reasons) there would, on the facts, scarcely be sufficient to meet the requirements of the family. Accordingly, applicant's wife's contribution towards the monthly payments could not be taken into account in deciding whether the surrender of the estate would be to the advantage of creditors in terms of section 6.