Body Corporate Acubens v Foforane (2022-015844) [2025] ZAGPPHC 649 (25 June 2025)

Body Corporate Acubens v Foforane (2022-015844) [2025] ZAGPPHC 649 (25 June 2025)

The respondent failed to substantiate his defences to final sequestration with facts under oath. The pending rescission application was instituted after the provisional sequestration order and was incompetent, as the respondent lacked locus standi. The respondent did not provide details of assets, liabilities, or income, nor did he rebut the applicant's prima facie case of insolvency. The applicant established a claim exceeding R100, acts of insolvency under sections 8(b) and 8(g) of the Insolvency Act, and demonstrated that sequestration would be to the advantage of creditors, given the value of the property. The jurisdictional requirements of Section 12(1) of the Insolvency Act were...

Citation
[2025] ZAGPPHC 649
Parties
Applicant: Body Corporate Acubens; Respondent: Kenny Mathobela Foforane
Court
North Gauteng High Court, Pretoria
Jurisdiction
South Africa
Judgment Date
25 June 2025
Case Number
2022-015844
Procedural Posture
Final Sequestration Application / Hearing of Final Sequestration Order After Provisional Order
Outcome
Final sequestration order granted against the respondent.
Judges
Kooverjie
Legal Topics
Sequestration, Acts of Insolvency, Advantage to Creditors, Nulla Bona Return, Default Judgment, Motion Proceedings
Civil Procedure Land and Property Sequestration Acts of Insolvency Advantage to Creditors Nulla Bona Return Default Judgment Motion Proceedings

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Parties

Body Corporate Acubens

Applicant

Kenny Mathobela Foforane

Respondent

Procedural Posture

Final Sequestration Application / Hearing of Final Sequestration Order After Provisional Order

Legal Issues

  1. 1 Whether the respondent's defences to final sequestration have merit and should be considered without being pleaded in affidavits.
  2. 2 Whether the pending rescission application prevents the granting of a final sequestration order.
  3. 3 Whether the applicant has satisfied the requirements of Section 12(1) of the Insolvency Act for a final sequestration order.

Ratio Decidendi

The respondent failed to substantiate his defences to final sequestration with facts under oath. The pending rescission application was instituted after the provisional sequestration order and was incompetent, as the respondent lacked locus standi. The respondent did not provide details of assets, liabilities, or income, nor did he rebut the applicant's prima facie case of insolvency. The applicant established a claim exceeding R100, acts of insolvency under sections 8(b) and 8(g) of the Insolvency Act, and demonstrated that sequestration would be to the advantage of creditors, given the value of the property. The jurisdictional requirements of Section 12(1) of the Insolvency Act were...

Court Disposition

Final sequestration order granted against the respondent.

Orders

  • A final order for the sequestration of the respondent is granted.
  • The costs shall be the costs in the sequestration.