Triegaardt N.O. and Another v Knipe (Noordman and Others Intervening) (4606/2016) [2017] ZAFSHC 101 (22 June 2017)

Triegaardt N.O. and Another v Knipe (Noordman and Others Intervening) (4606/2016) [2017] ZAFSHC 101 (22 June 2017)

The court found that the Triegaardt Family Trust, as cessionary of a taxed costs claim, is a creditor with locus standi to apply for provisional sequestration. The respondent committed at least one deed of insolvency by failing to satisfy writs of execution and failing to disclose assets. The respondent's liabilities substantially exceed his assets, and he failed to provide credible evidence of solvency. The court was satisfied that sequestration would be to the advantage of creditors, as the respondent's conduct indicated ongoing inability to pay debts and a pattern of evasion. Although concerns were raised about the bona fides of the applicants' attorney, there was no sufficient...

Citation
[2017] ZAFSHC 101
Parties
Applicant: Jacobus Johannes Triegaardt N.O.; Applicant: Rudolph Philip Botha N.O.; Respondent: Andre Bazzett Jansen Knipe; Appellant: Otllie Anton Noordman; Appellant: Chavonnes Badenhorst St Clair Cooper; Appellant: Simon Malebo Rampoporo
Court
Free State High Court, Bloemfontein
Jurisdiction
South Africa
Judgment Date
22 June 2017
Case Number
4606/2016
Procedural Posture
Provisional Sequestration Application / Judgment on Main, Intervening, Counter, and Ancillary Applications
Outcome
Provisional sequestration order granted against the respondent's estate at the instance of the Triegaardt Family Trust. Intervening application, counter-application, extension of liquidators' powers, and Rule 7 application dismissed with costs as specified.
Judges
Daffue
Legal Topics
Provisional Sequestration, Locus Standi, Deeds of Insolvency, Costs of Sequestration, Creditor Claims, Company Liquidation
Civil Procedure Banking and Finance Provisional Sequestration Locus Standi Deeds of Insolvency Costs of Sequestration Creditor Claims Company Liquidation

Case Brief

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Parties

Jacobus Johannes Triegaardt N.O.

Applicant

Rudolph Philip Botha N.O.

Applicant

Andre Bazzett Jansen Knipe

Respondent

Otllie Anton Noordman

Appellant

Chavonnes Badenhorst St Clair Cooper

Appellant

Simon Malebo Rampoporo

Appellant

Procedural Posture

Provisional Sequestration Application / Judgment on Main, Intervening, Counter, and Ancillary Applications

Legal Issues

  1. 1 Whether the Triegaardt Family Trust has locus standi as creditor for purposes of sequestration.
  2. 2 Whether the respondent has committed a deed of insolvency under section 8 of the Insolvency Act.
  3. 3 Whether the respondent is factually and commercially insolvent.

Ratio Decidendi

The court found that the Triegaardt Family Trust, as cessionary of a taxed costs claim, is a creditor with locus standi to apply for provisional sequestration. The respondent committed at least one deed of insolvency by failing to satisfy writs of execution and failing to disclose assets. The respondent's liabilities substantially exceed his assets, and he failed to provide credible evidence of solvency. The court was satisfied that sequestration would be to the advantage of creditors, as the respondent's conduct indicated ongoing inability to pay debts and a pattern of evasion. Although concerns were raised about the bona fides of the applicants' attorney, there was no sufficient...

Court Disposition

Provisional sequestration order granted against the respondent's estate at the instance of the Triegaardt Family Trust. Intervening application, counter-application, extension of liquidators' powers, and Rule 7 application dismissed with costs as specified.

Orders

  • The estate of the respondent is placed under a provisional order of sequestration in the hands of the Master of the High Court.
  • A rule nisi is issued calling upon respondent and all interested persons to show cause on 3 August 2017 why the estate should not be finally sequestrated.