Nedbank Limited v Weideman NO and Others (31/2020) [2020] ZAFSHC 76 (26 March 2020)

Nedbank Limited v Weideman NO and Others (31/2020) [2020] ZAFSHC 76 (26 March 2020)

The court found that the applicant had established a prima facie case for provisional sequestration. The respondents' indebtedness was evidenced by certificates of balance and was not bona fide disputed. The respondents were found to be insolvent, as their liabilities exceeded their assets and they had failed to satisfy a judgment, resulting in asset attachment and liquidation of a security provider. The court held that there were no exceptional circumstances warranting referral to oral evidence, as the material facts were not genuinely disputed. The court also condoned the late filing of the respondents' answering affidavit, finding the explanation for the delay sufficient and the...

Citation
[2020] ZAFSHC 76
Parties
Applicant: Nedbank Limited; Respondent: Werner Jacobus Weideman N.O; Respondent: Reinette Weideman N.O; Respondent: Joseph Johann Saunders NO.
Court
Free State High Court, Bloemfontein
Jurisdiction
South Africa
Judgment Date
26 March 2020
Case Number
31/2020
Procedural Posture
Urgent Application / Provisional Sequestration Application
Outcome
Provisional sequestration order granted; condonation for late filing of answering affidavit granted; application for referral to oral evidence dismissed.
Judges
N.S. Daniso
Legal Topics
Provisional Sequestration, Act of Insolvency, Creditor Preference, Notarial General Covering Bond, Condonation of Late Filing
Civil Procedure Banking and Finance Provisional Sequestration Act of Insolvency Creditor Preference Notarial General Covering Bond Condonation of Late Filing

Case Brief

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Parties

Nedbank Limited

Applicant

Werner Jacobus Weideman N.O

Respondent

Reinette Weideman N.O

Respondent

Joseph Johann Saunders NO.

Respondent

Procedural Posture

Urgent Application / Provisional Sequestration Application

Legal Issues

  1. 1 Whether the respondents are indebted to the applicant and the debt is due and payable.
  2. 2 Whether the respondents have committed acts of insolvency or are factually insolvent.
  3. 3 Whether sequestration will be to the advantage of creditors.

Ratio Decidendi

The court found that the applicant had established a prima facie case for provisional sequestration. The respondents' indebtedness was evidenced by certificates of balance and was not bona fide disputed. The respondents were found to be insolvent, as their liabilities exceeded their assets and they had failed to satisfy a judgment, resulting in asset attachment and liquidation of a security provider. The court held that there were no exceptional circumstances warranting referral to oral evidence, as the material facts were not genuinely disputed. The court also condoned the late filing of the respondents' answering affidavit, finding the explanation for the delay sufficient and the...

Court Disposition

Provisional sequestration order granted; condonation for late filing of answering affidavit granted; application for referral to oral evidence dismissed.

Orders

  • The late delivery by the respondent of its answering affidavit is condoned. No order as to costs.
  • The application to refer the matter for oral evidence is dismissed.