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South Africa decisions
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Chemagic (Pty) Ltd v Van der Schyff (17353/2020) [2021] ZAGPJHC 795 (13 December 2021)
The High Court granted provisional sequestration of the respondent’s estate after finding a prima facie case, jurisdiction, and no bona fide dispute.
Chemagic (Pty) Ltd v Van der Schyff (17353/2020) [2021] ZAGPJHC 820 (13 December 2021)
The court found that the applicant had complied with all formal requirements and established the respondent's act of insolvency under section 8(b) of the Insolvency Act. The respondent admitted indebtedness and failed to provide evidence of solvency or full disclosure of assets and liabilities. The sale of the property and settlement of other creditors justified further investigation. The respondent's allegations of abuse of process and lack of advantage to creditors were not supported by the facts. The court was satisfied that there was reason to believe sequestration would be to the advanta…
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Lundy v Beck (45027/2014) [2019] ZAGPJHC 191; 2019 (5) SA 503 (GJ) (22 May 2019)
The court held that once Beck paid the capital amount of the debt on which the nulla bona return was founded, and unconditionally tendered payment of all accrued interest, Lundy could no longer rely on the act of insolvency under s8(b) of the Insolvency Act to seek sequestration. Only interest accrued up to the date of the nulla bona return could be included in the debt; costs of the sequestration proceedings were not part of the debt for this purpose. The application was found to have been brought for an ulterior purpose, namely to achieve eviction and settlement of property disputes, rather…
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Body Corporate of Empire Gardens v Sithole and Another (240/2016) [2017] ZASCA 28; 2017 (4) SA 161 (SCA) (27 March 2017)
The Supreme Court of Appeal held that a body corporate seeking compulsory sequestration must still prove advantage to creditors under s 10(c) of the Insolvency Act.
Avantech Ltd v Fryer and Another (70750/14) [2016] ZAGPPHC 49 (5 February 2016)
The court found that although the applicant's claim is capable of easy determination and thus liquidated, the respondent raised a bona fide and reasonable dispute regarding the alleged misappropriation of funds. The respondent provided plausible explanations for the transactions and the absence of supporting documents, and the applicant failed to produce original bank statements. The court held that the dispute is genuine and substantial, and that it is improper to seek sequestration in circumstances where the debt is disputed on bona fide grounds. Accordingly, the application for compulsory…
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Amber Falcon Debt Collectors (Pty) Ltd v Lodewyk Vos (63764/2013) [2014] ZAGPPHC 94 (14 January 2014)
The court found that the respondent did not commit an act of insolvency under section 8(e) of the Insolvency Act, as signing an acknowledgement of debt is a commitment to pay, not an arrangement for release from debt. The applicant's reliance on section 8(e) was therefore misplaced. Regarding factual insolvency, the applicant failed to provide any reasons or reliable evidence to support the allegation of insolvency, offering only a bare assertion. Procedurally, service of the application was defective as it was served on the respondent's wife rather than personally on the respondent, as requi…
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De Beer v Coverdale and Another (45751/2009, 47257/2009, 34375/2009, 32075/2009, 4983/2009) [2010] ZAGPPHC 9 (18 February 2010)
Composite judgment refusing several unopposed sequestration applications for lack of proof, full disclosure, and signs of collusion in friendly sequestration matters.
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