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South Africa Judgment

North Gauteng High Court, Pretoria

Body Corporate Salvokop v Ziramba (2022-056746) [2024] ZAGPPHC 63 (30 January 2024)

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01

Holding and result

The court refused to grant a final sequestration order because the nulla bona return was factually incorrect in stating that the respondent had no immovable property, when in fact the respondent owned the property for which the arrear levies were due. The applicant, as the body corporate, was aware of this ownership. The court exercised its discretion to refuse sequestration, noting the low quantum of the debt and the availability of alternative enforcement mechanisms, such as attachment and sale of the immovable property. The reasoning and findings of Van der Schyff J in Waterkloof Boulevard Homeowners Association v Yusuf and Another were directly applied and incorporated.

Court disposition

Final sequestration refused; provisional sequestration order discharged.

Orders

  • The rule nisi is discharged.
  • The provisional sequestration order is set aside.

02

Material facts

Parties

Body Corporate Salvokop

Applicant Counsel: F.C. Lamprecht

Douglas Ziramba

Respondent

Amounts and remedies

  • Magistrates Court Order Amount: ZAR 13,000

03

Procedural history

  1. Posture

    Urgent Application / Return Date of Rule Nisi; Application for Final Sequestration

04

Questions and positions

Legal issues

Party arguments

Applicant
The applicant sought a final sequestration order against the respondent based on a Magistrates Court judgment for arrear levies and a nulla bona return from the Sheriff, asserting that the respondent had no attachable property. The applicant elected sequestration as the enforcement route rather than attachment and sale of the respondent's immovable property.
Respondent
The respondent appeared in person and did not file opposing papers. The respondent's position was inferred from the record and the factual circumstances, particularly regarding ownership of the property and the factual accuracy of the nulla bona return.

05

Court’s reasoning

  1. 01

    Waterkloof Boulevard Homeowners Association v Yusuf and Another (028945/2022) [2023] ZAGPPHC 737

    The court retains a discretion in granting a final sequestration order, even where the statutory requirements are met.

  2. 02

    Waterkloof Boulevard Homeowners Association v Yusuf and Another (028945/2022) [2023] ZAGPPHC 737

    A nulla bona return must accurately reflect the respondent's assets, and factual errors regarding ownership of immovable property undermine the basis for sequestration.

06

Ratio, limits and disposition

Ratio decidendi

The court refused to grant a final sequestration order because the nulla bona return was factually incorrect in stating that the respondent had no immovable property, when in fact the respondent owned the property for which the arrear levies were due. The applicant, as the body corporate, was aware of this ownership. The court exercised its discretion to refuse sequestration, noting the low quantum of the debt and the availability of alternative enforcement mechanisms, such as attachment and sale of the immovable property. The reasoning and findings of Van der Schyff J in Waterkloof Boulevard Homeowners Association v Yusuf and Another were directly applied and incorporated.

Obiter and limits

  • The court questioned the applicant's election to pursue sequestration rather than attachment and sale of the respondent's immovable property.
  • The low amount of the debt and the factual errors in the nulla bona return were material to the exercise of the court's discretion.

Court disposition

Final sequestration refused; provisional sequestration order discharged.

  • The rule nisi is discharged.
  • The provisional sequestration order is set aside.

Source and reliance status

North Gauteng High Court, Pretoria

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Judgment text

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Source document

North Gauteng High Court, Pretoria

Judgment

[2024] ZAGPPHC 63

REPUBLIC

OF SOUTH AFRICA

IN

THE HIGH COURT OF SOUTH AFRICA

GAUTENG DIVISION, PRETORIA

CASE NO: 2022-056746

1. REPORTABLE: NO

2. OF INTEREST TO OTHER JUDGES: NO

3. REVISED: NO

DATE: 2024-01-30

In the matter between:

THE

BODY CORPORATE SALVOKOP

Applicant

and

DOUGLAS

ZIRAMBA

Respondent

REASONS FOR JUDGMENT

K STRYDOM, AJ

1) This matter was set down on the unopposed motion roll off the 12th of December 2023, being the return date of a rule nisi granted in terms of which the respondent was provisionally sequestrated.

2) On that day I ordered that the rule nisi be discharged and set aside the provisional sequestration order.

3) The applicants filed a request for reasons for this judgment on the 14th of December 2023, however, for some unbeknownst reason, the request only came to my attention on the 9th of January 2023.

4) The application for final sequestration was premised on the basis of a court order obtained in the Magistrates Court against the respondent for payment of arrear levies and a subsequent nulla bona return received from the Sherriff pursuant to the court order.

5) At the hearing I had expressed my reticence in making such a final order not only in view of the low amount to the Magistrates Court order (approximately R13,000), but also given the clearly erroneous assertion on the return that the respondent has no immovable

property. Given that the applicant is the body corporate for a property owned by the respondent and that the court order was based

on levies due for an immovable property so owned by the respondent, the statement is factually (and within the knowledge) incorrect. I also queried why attachment of the respondents' immovable property and its sale instead of the present proceedings were not instituted

and was informed that the applicants elected to follow the sequestration route.

6) Whilst acknowledging that the applicants are entitled to their election, I noted that the Court still retains a discretion in ordering a final sequestration.

7) I pertinently drew counsel’s attention to the findings and reasoning of Van der Schyff J in Waterkloof Boulevard Homeowners Association (Association Incorporated under Section 21) v Yusuf and Another (028945/2022) [2023] ZAGPPHC 737 (28 August 2023) and indicated that, in reaching my decision, I applied that reasoning (and finding) to the present matter.

8) My reasons for the order made is thus as per the judgment of Van der Schyff, which are directly incorporated herein.

K

STRYDOM

ACTING

JUDGE OF THE HIGH COURT

OF

SOUTH AFRICA GAUTENG

DIVISION,

PRETORIA

Date of hearing: 12 December 2023

Reasons delivered: 30 January 2024

Appearances:

For the Applicant: Adv. F.C. Lamprecht Instructed by: EY Stuart Incorporated For the Respondent: In person

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Cases, legislation, regulations, and constitutional provisions identified in the available record.

Waterkloof Boulevard Homeowners Association (Association Incorporated under Section 21) v Yusuf and Another (028945/2022) [2023] ZAGPPHC 737

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