ABSA Bank Limited v Du Plooy (2007/2021) [2021] ZAFSHC 224 (16 September 2021)

ABSA Bank Limited v Du Plooy (2007/2021) [2021] ZAFSHC 224 (16 September 2021)

The applicant established a liquidated claim exceeding R100.00, supported by credit agreements and mortgage bonds. The respondent's liabilities far exceed his assets, and he committed acts of insolvency by entering into a settlement agreement and making preferential payments. The respondent's defences regarding prescription, procedural irregularities, and locus standi are unfounded; the mortgage bonds remain valid and prescription is thirty years. The applicant complied with procedural requirements, including service of the section 129 NCA notice. The respondent failed to provide credible evidence of solvency or substantiate his defences. The court finds that sequestration will be to the...

Citation
[2021] ZAFSHC 224
Parties
Applicant: ABSA Bank Limited; Respondent: Pieter Willem du Plooy
Court
Free State High Court, Bloemfontein
Jurisdiction
South Africa
Judgment Date
16 September 2021
Case Number
2007/2021
Procedural Posture
Provisional Sequestration Application / Hearing and Order
Outcome
Provisional sequestration order granted against the respondent's estate.
Judges
I van Rhyn
Legal Topics
Provisional Sequestration, Mortgage Bond Prescription, Acts of Insolvency, Credit Agreements, Advantage to Creditors
Banking and Finance Civil Procedure Provisional Sequestration Mortgage Bond Prescription Acts of Insolvency Credit Agreements Advantage to Creditors

Case Brief

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Parties

ABSA Bank Limited

Applicant

Pieter Willem du Plooy

Respondent

Procedural Posture

Provisional Sequestration Application / Hearing and Order

Legal Issues

  1. 1 Whether the applicant has established a liquidated claim exceeding R100.00 against the respondent.
  2. 2 Whether the respondent is factually insolvent or has committed acts of insolvency as defined in the Insolvency Act.
  3. 3 Whether the applicant complied with procedural requirements under the Uniform Rules of Court and the National Credit Act.

Ratio Decidendi

The applicant established a liquidated claim exceeding R100.00, supported by credit agreements and mortgage bonds. The respondent's liabilities far exceed his assets, and he committed acts of insolvency by entering into a settlement agreement and making preferential payments. The respondent's defences regarding prescription, procedural irregularities, and locus standi are unfounded; the mortgage bonds remain valid and prescription is thirty years. The applicant complied with procedural requirements, including service of the section 129 NCA notice. The respondent failed to provide credible evidence of solvency or substantiate his defences. The court finds that sequestration will be to the...

Court Disposition

Provisional sequestration order granted against the respondent's estate.

Orders

  • The estate of the respondent is placed under provisional sequestration in the hands of the Master of the High Court, Bloemfontein.
  • The respondent is called upon to show cause on 14 October 2021 why a final sequestration order should not be granted.