Levin NO and Others v Wessels (49214/2007) [2011] ZAGPPHC 115 (10 June 2011)

Levin NO and Others v Wessels (49214/2007) [2011] ZAGPPHC 115 (10 June 2011)

The court found that the applicants had proven their claim on a balance of probabilities, supported by the respondent's repeated acknowledgments of indebtedness, failures to pay, and acts of insolvency. The respondent's allegations of misrepresentation were found to be untenable and raised only after multiple extensions and court orders had been granted. The security offered by the respondent was inadequate, being over property not owned by him and signed only by his wife. The court was satisfied that sequestration would be to the advantage of creditors and that the respondent's conduct, including transfers of assets to frustrate execution, precluded the exercise of judicial discretion in...

Citation
[2011] ZAGPPHC 115
Parties
Applicant: Harold Levin N.O.; Applicant: Andrew Maxwell Tully N.O.; Applicant: Colin Graig Elsworth N.O.; Applicant: Randal James Brereton N.O.; Respondent: Hans Jacob Wessels
Court
North Gauteng High Court, Pretoria
Jurisdiction
South Africa
Judgment Date
10 June 2011
Case Number
49214/2007
Procedural Posture
Sequestration Application / Return Date of Interim Order for Final Sequestration
Outcome
The rule nisi is confirmed and the final order of sequestration is granted against the respondent.
Judges
Potterill
Legal Topics
Final Sequestration, Deed of Insolvency, Section 8g Insolvency Act, Judicial Discretion in Sequestration, Creditors Advantage
Civil Procedure Banking and Finance Final Sequestration Deed of Insolvency Section 8g Insolvency Act Judicial Discretion in Sequestration Creditors Advantage

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Parties

Harold Levin N.O.

Applicant

Andrew Maxwell Tully N.O.

Applicant

Colin Graig Elsworth N.O.

Applicant

Randal James Brereton N.O.

Applicant

Hans Jacob Wessels

Respondent

Procedural Posture

Sequestration Application / Return Date of Interim Order for Final Sequestration

Legal Issues

  1. 1 Whether the applicants have proven their claim against the respondent on a balance of probabilities.
  2. 2 Whether the respondent committed an act of insolvency under section 8(g) of the Insolvency Act.
  3. 3 Whether the sequestration would be to the advantage of the creditors.

Ratio Decidendi

The court found that the applicants had proven their claim on a balance of probabilities, supported by the respondent's repeated acknowledgments of indebtedness, failures to pay, and acts of insolvency. The respondent's allegations of misrepresentation were found to be untenable and raised only after multiple extensions and court orders had been granted. The security offered by the respondent was inadequate, being over property not owned by him and signed only by his wife. The court was satisfied that sequestration would be to the advantage of creditors and that the respondent's conduct, including transfers of assets to frustrate execution, precluded the exercise of judicial discretion in...

Court Disposition

The rule nisi is confirmed and the final order of sequestration is granted against the respondent.

Orders

  • The provisional sequestration order is made final.
  • Costs are awarded against the respondent on the attorney and client scale.