Webb v Fourie and Another (3571/2018) [2019] ZAMPMHC 29 (6 September 2019)

Webb v Fourie and Another (3571/2018) [2019] ZAMPMHC 29 (6 September 2019)

The court found that the respondent committed an act of insolvency as defined in section 8(b) of the Insolvency Act by failing to satisfy the judgment and not indicating disposable property, as confirmed by the nulla bona return. The Rabie order, which incorporated a settlement agreement, clearly obliged the...

Source-derived case information.

Citation
[2019] ZAMPMHC 29
Parties
Applicant: Edward Cottington Webb; Respondent: Willem Lodewikus Fourie; Respondent: Commissioner of South African Revenue Services
Court
Middelburg High Court, Mpumalanga
Jurisdiction
South Africa
Judgment Date
6 September 2019
Case Number
3571/2018
Procedural Posture
Sequestration Application / Final Judgment
Outcome
The application for sequestration is granted.
Judges
Brauckmann
Legal Topics
Sequestration, Liquidated Claim, Vat Interest, Nulla Bona Return, Magistrates Court Transfer
Civil Procedure Banking and Finance Sequestration Liquidated Claim Vat Interest Nulla Bona Return Magistrates Court Transfer

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Parties

Edward Cottington Webb

Applicant

Willem Lodewikus Fourie

Respondent

Commissioner of South African Revenue Services

Respondent

Procedural Posture

Sequestration Application / Final Judgment

Legal Issues

  1. 1 Whether the respondent committed an act of insolvency as defined in section 8(b) of the Insolvency Act.
  2. 2 Whether the applicant has a liquidated claim against the respondent for the interest paid to SARS.
  3. 3 Whether the Rabie order is enforceable and creates an obligation for the respondent to pay the interest charged by SARS.

Ratio Decidendi

The court found that the respondent committed an act of insolvency as defined in section 8(b) of the Insolvency Act by failing to satisfy the judgment and not indicating disposable property, as confirmed by the nulla bona return. The Rabie order, which incorporated a settlement agreement, clearly obliged the respondent to pay all interest charged by SARS against the applicant for late payment of VAT. The reference to 'assessment' in the Rabie order was interpreted as a time clause, not a suspensive condition, and the obligation to pay arose when SARS charged the interest and the applicant paid it. The transfer of the judgment to the Magistrate's Court under section 65M did not deprive the...

Court Disposition

The application for sequestration is granted.

Orders

  • The estate of Willem Lodewikus Fourie is hereby sequestrated and placed in the hands of the Master of the High Court.
  • The costs of the application are costs in the insolvent estate.