Absa Bank Limited v Van der Merwe (19015/2015) [2018] ZAGPPHC 968 (19 August 2018)

Absa Bank Limited v Van der Merwe (19015/2015) [2018] ZAGPPHC 968 (19 August 2018)

The court found that the applicant had established a liquidated claim against the respondent, who had admitted her indebtedness and defaulted on payments. The respondent had committed acts of insolvency by indicating in writing her inability to pay debts. The authority challenge was dismissed as it was not raised in terms of Rule 7(1), and the plea of lis alibi pendens failed because the pending action and sequestration proceedings were based on different causes of action and sought different relief. The requirements for provisional sequestration under the Insolvency Act were satisfied, and no special circumstances justified the exercise of discretion against granting the order. The...

Citation
[2018] ZAGPPHC 968
Parties
Applicant: Absa Bank Limited; Respondent: Heidi van der Merwe
Court
North Gauteng High Court, Pretoria
Jurisdiction
South Africa
Judgment Date
19 August 2018
Case Number
19015/2015
Procedural Posture
Provisional Sequestration Application / Hearing and Judgment
Outcome
Provisional sequestration order granted against the respondent. Counter-application dismissed.
Judges
Strydom AJ
Legal Topics
Provisional Sequestration, Acts of Insolvency, Authority to Institute Proceedings, Lis Alibi Pendens, Reckless Lending, National Credit Act
Banking and Finance Civil Procedure Provisional Sequestration Acts of Insolvency Authority to Institute Proceedings Lis Alibi Pendens Reckless Lending National Credit Act

Case Brief

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Parties

Absa Bank Limited

Applicant

Heidi van der Merwe

Respondent

Procedural Posture

Provisional Sequestration Application / Hearing and Judgment

Legal Issues

  1. 1 Whether the applicant has established the requirements for a provisional sequestration order against the respondent.
  2. 2 Whether the respondent's challenge to the applicant's authority to institute proceedings is valid.
  3. 3 Whether the plea of lis alibi pendens applies to bar the sequestration application.

Ratio Decidendi

The court found that the applicant had established a liquidated claim against the respondent, who had admitted her indebtedness and defaulted on payments. The respondent had committed acts of insolvency by indicating in writing her inability to pay debts. The authority challenge was dismissed as it was not raised in terms of Rule 7(1), and the plea of lis alibi pendens failed because the pending action and sequestration proceedings were based on different causes of action and sought different relief. The requirements for provisional sequestration under the Insolvency Act were satisfied, and no special circumstances justified the exercise of discretion against granting the order. The...

Court Disposition

Provisional sequestration order granted against the respondent. Counter-application dismissed.

Orders

  • The estate of the respondent, Heidi van der Merwe, is provisionally sequestrated.
  • The respondent's counter-application is dismissed.