Investec Bank Limited v Le Roux (575/2014) [2016] ZAGPJHC 11 (11 February 2016)

Investec Bank Limited v Le Roux (575/2014) [2016] ZAGPJHC 11 (11 February 2016)

The court held that the respondent's admissions in his answering affidavit regarding the sheriff's return and the facts asserted in the founding affidavit precluded him from challenging whether an act of insolvency had been shown. The nulla bona return was not stale for the purposes of section 8(b) of the Insolvency Act, as the respondent had been served personally and admitted having no assets. The court found that there was a reasonable prospect that assets might be uncovered for the benefit of creditors, given the respondent's incomplete disclosure regarding his interests in juristic entities and his financial position. The threshold for advantage to creditors is low, and the...

Citation
[2016] ZAGPJHC 11
Parties
Applicant: Investec Bank Limited; Respondent: Le Roux, Casper Johannes
Court
South Gauteng High Court, Johannesburg
Jurisdiction
South Africa
Judgment Date
11 February 2016
Case Number
575/2014
Procedural Posture
Urgent Application / Application for Provisional Sequestration Order
Outcome
Provisional sequestration order granted against the respondent's estate.
Judges
WHG van der Linde
Legal Topics
Provisional Sequestration, Act of Insolvency, Nulla Bona Return, Advantage to Creditors, Condonation, Striking Out
Civil Procedure Banking and Finance Provisional Sequestration Act of Insolvency Nulla Bona Return Advantage to Creditors Condonation Striking Out

Case Brief

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Parties

Investec Bank Limited

Applicant

Le Roux, Casper Johannes

Respondent

Procedural Posture

Urgent Application / Application for Provisional Sequestration Order

Legal Issues

  1. 1 Whether the respondent committed an act of insolvency as contemplated by section 8(b) of the Insolvency Act.
  2. 2 Whether the return of service (nulla bona) is stale and affects the application.
  3. 3 Whether sequestration would be to the advantage of creditors.

Ratio Decidendi

The court held that the respondent's admissions in his answering affidavit regarding the sheriff's return and the facts asserted in the founding affidavit precluded him from challenging whether an act of insolvency had been shown. The nulla bona return was not stale for the purposes of section 8(b) of the Insolvency Act, as the respondent had been served personally and admitted having no assets. The court found that there was a reasonable prospect that assets might be uncovered for the benefit of creditors, given the respondent's incomplete disclosure regarding his interests in juristic entities and his financial position. The threshold for advantage to creditors is low, and the...

Court Disposition

Provisional sequestration order granted against the respondent's estate.

Orders

  • A provisional sequestration order is granted, returnable on 18 April 2016, in terms of the draft initialled, dated and marked 'X'.
  • Condonation for the late filing of the replying affidavit is granted, with no order as to costs.