Absa Bank Ltd v Van Zyl NO and Another (35976/2015) [2016] ZAGPPHC 247 (22 April 2016)

Absa Bank Ltd v Van Zyl NO and Another (35976/2015) [2016] ZAGPPHC 247 (22 April 2016)

The court found that the nulla bona return relied upon by the applicant was invalid, as it was executed by Mr Barkhuizen, who was not a duly appointed sheriff or deputy sheriff. The applicant failed to prove that the trust committed an act of insolvency as required by section 8(b) of the Insolvency Act. Furthermore, the court held that the applicant did not provide sufficient evidence to establish factual insolvency of the trust. The mere failure to pay a judgment debt and inability to complete a property purchase do not, without more, prove insolvency. Accordingly, the application for sequestration was dismissed.

Citation
[2016] ZAGPPHC 247
Parties
Applicant: Absa Bank Ltd; Respondent: A.H. Van Zyl N.O.; Respondent: N.M. Kilian N.O.
Court
North Gauteng High Court, Pretoria
Jurisdiction
South Africa
Judgment Date
22 April 2016
Case Number
35976/2015
Procedural Posture
Urgent Application / Application for Provisional Sequestration
Outcome
Application dismissed with costs.
Judges
C.P. Rabie
Legal Topics
Provisional Sequestration, Acts of Insolvency, Nulla Bona Return, Factual Insolvency
Civil Procedure Banking and Finance Provisional Sequestration Acts of Insolvency Nulla Bona Return Factual Insolvency

Case Brief

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Parties

Absa Bank Ltd

Applicant

A.H. Van Zyl N.O.

Respondent

N.M. Kilian N.O.

Respondent

Procedural Posture

Urgent Application / Application for Provisional Sequestration

Legal Issues

  1. 1 Whether the applicant proved a valid act of insolvency by way of a nulla bona return executed by a duly appointed sheriff.
  2. 2 Whether the trust is factually insolvent and liable to sequestration.

Ratio Decidendi

The court found that the nulla bona return relied upon by the applicant was invalid, as it was executed by Mr Barkhuizen, who was not a duly appointed sheriff or deputy sheriff. The applicant failed to prove that the trust committed an act of insolvency as required by section 8(b) of the Insolvency Act. Furthermore, the court held that the applicant did not provide sufficient evidence to establish factual insolvency of the trust. The mere failure to pay a judgment debt and inability to complete a property purchase do not, without more, prove insolvency. Accordingly, the application for sequestration was dismissed.

Court Disposition

Application dismissed with costs.

Orders

  • The application is dismissed with costs.