Body Corporate of Acubens v Foforane (015844/2022) [2025] ZAGPPHC 214 (3 March 2025)
The court found that the applicant had established a valid claim against the respondent, as evidenced by the uncontested judgment for arrear levies. The respondent's failure to satisfy the judgment and the sheriff's nulla bona return constituted acts of insolvency under the Insolvency Act. The applicant also...
Source-derived case information.
- Citation
- [2025] ZAGPPHC 214
- Parties
- Applicant: Body Corporate of Acubens; Respondent: K Foforane
- Court
- North Gauteng High Court, Pretoria
- Jurisdiction
- South Africa
- Case Number
- 015844/2022
- Procedural Posture
- Sequestration Application / Opposed Provisional Sequestration
- Outcome
- Provisional sequestration of the respondent's estate granted.
- Judges
- Kekana
- Legal Topics
- Provisional Sequestration, Acts of Insolvency, Nulla Bona Return, Creditor Claim, Forced Sale Valuation
Source-derived case record
Summary, issues, holding and outcome
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Parties
Body Corporate of Acubens
Applicant
K Foforane
Respondent
Procedural Posture
Sequestration Application / Opposed Provisional Sequestration
Legal Issues
- 1 Whether the respondent is insolvent within the meaning of the Insolvency Act 24 of 1936.
- 2 Whether the applicant has satisfied the requirements for provisional sequestration under section 10 of the Insolvency Act.
- 3 Whether sequestration will be to the advantage of the respondent's creditors.
Ratio Decidendi
The court found that the applicant had established a valid claim against the respondent, as evidenced by the uncontested judgment for arrear levies. The respondent's failure to satisfy the judgment and the sheriff's nulla bona return constituted acts of insolvency under the Insolvency Act. The applicant also demonstrated that sequestration would likely be to the advantage of creditors, given the forced sale value of the respondent's mortgaged property. The respondent's assertion that his assets exceed his liabilities was not substantiated with credible evidence. Accordingly, the requirements for provisional sequestration under section 10 of the Insolvency Act were satisfied.
Court Disposition
Provisional sequestration of the respondent's estate granted.
Orders
- The estate of the respondent is provisionally sequestrated.
- A return date is set for the respondent and interested parties to show cause why a final sequestration order should not be granted.
Full Case Text
Judgment text and source record
40 paragraphs
SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document in compliance with the law and SAFLII Policy
REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, PRETORIA
CASE Number: 015844/2022
(1) REPORTABLE: YES/NO
(2) OF INTEREST TO OTHER JUDGES: YES/NO
(3) REVISED: YES/NO
03/03/2025
In the matters between: -
THE BODY CORPORATE OF ACUBENS
APPLICANT
And
K FOFORANE
RESPONDENT
JUDGMENT
KEKANA, AJ
INTRODUCTION
[1] This is an opposed application for the provisional sequestration of the respondent based on the respondent’s alleged inability to satisfy a judgment obtained by the applicant against the respondent in the Magistrates Court District of Tshwane Central held at Pretoria under case number 39001/2021.
BACKGROUND
[2] On 20th April 2022, the applicant, a body corporate, obtained a default judgment against the respondent in the sum of R38 660.93 for arrear levies on the respondent’s property, Unit 1[...] A[...], cnr Reitspruit and Honey Buzzard Street, Kosmosdal, Centurion. A warrant of execution was issued and was served on the respondent personally on the 21st June 2022. The sheriff delivered a nulla bona return to the applicant.
[3] The applicant’s basis for this application is that the respondent has committed an act of insolvency. The respondent opposes
the sequestration application arguing that he is not insolvent since the value of his assets exceeds his liabilities.
ISSUE FOR DETERMINATION
[4] The issue for determination is whether the respondent is insolvent within the meaning of the Insolvency Act 24 of 1936 (the Insolvency Act.
[5] It is trite that the applicant for the sequestration of the debtor’s estate must meet the prescribed requirements set out in section 10 of the Insolvency Act which provides as follows:
“If the Court to which the petition for the sequestration of the estate of a debtor has been presented is of the opinion that prima facie—
(a) the petitioning creditor has established against the debtor a claim such as is mentioned in subsection (1) of section 9; and
(b) the debtor has committed an act of insolvency or is insolvent; and
(c) there is reason to believe that it will be to the advantage of creditors of the debtor if his estate is sequestrated,
it may make an order sequestrating the estate of the debtor provisionally.”
[6] Section 9(1) of the Insolvency Act provides that a creditor who has a claim of not less than R100.00 against a debtor who has committed an act of insolvency or is insolvent may petition the court for the sequestration of the estate of the debtor.
SUBMISSIONS
[7] The judgment obtained by the applicant against the respondent is not in dispute.
[8] The applicant relies on two acts of insolvency, one being that the respondent failed to satisfy the judgment or to indicate to the sheriff disposable property sufficient to satisfy the judgment, prompting the sheriff to issue a nulla bona return; and secondly that the respondent attempted to dispose of the immovable property which would prejudice his creditors or have the effect of preferring one creditor, in this case the mortgagor, above other creditors.
[9] The respondent contended that the applicant must show that the respondent is insolvent for the court to consider this application. In this regard, the respondent submitted that his assets exceed his liabilities and therefore he is not insolvent.
[10] Regarding the third requirement, the applicant submitted that although the applicant is not aware of the respondent’s other creditors, they were aware that the immovable property owned by the respondent is mortgaged. The applicant contended that there is reason to believe that if the respondent’s estate is sequestrated it will be to the advantage of his creditors. The applicant obtained a valuation of the respondent’s property and the forced sale value was determined to be R900 000. It is on this basis that the applicant submits that if the immovable property is sold, it will result in
ANALYSIS
[11] It is not in dispute that the respondent is indebted to the applicant in the sum of
R38 660.98 which satisfies the requirement in terms of section 10(a) of the Insolvency Act.