South Africa Case Law

Education and Training Unit NPC v Mwanandimai (38645/2022)

Education and Training Unit NPC v Mwanandimai (38645/2022) [2024] ZAGPPHC 1102 (28 October 2024)

Court

North Gauteng High Court, Pretoria

Case number

38645/2022

Judge

SK Hassim

The applicant established a prima facie liquidated claim exceeding R100.00 against the respondent, based on evidence of misappropriation and admissions in correspondence. The respondent's payment of the AoD debt did not discharge liability for additional verified theft, as the AoD was not in full and final settlement. The respondent's offers to pay substantial amounts in instalments over several years, and his failure to positively assert solvency or disclose asset values, constitute acts of insolvency under section 8(g). The admissions in 'without prejudice' letters are admissible for the pu…

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• Sequestration
• Acknowledgement Of Debt
• Act Of Insolvency
• Advantage To Creditors
• Insolvency Act Section 10

Fisher N.O and Others v Geldenhuis (016482/2;016697/24)

Fisher N.O and Others v Geldenhuis (016482/2;016697/24) [2024] ZAGPPHC 386 (25 April 2024)

Court

North Gauteng High Court, Pretoria

Case number

016482/2;016697/24

Judge

Kooverjie

The High Court granted provisional sequestration orders against Jacoba Magdalena Geldenhuis and Dewald Geldenhuis arising from funds traced to Classic Financial Services One.

• Provisional Sequestration
• Insolvency Act Section 10
• Act Of Insolvency
• Fraudulent Conveyance
• Ponzi Scheme Liquidation
• Provisional-sequestration

Franck v Dyke and Another (2021/34174)

Franck v Dyke and Another (2021/34174) [2023] ZAGPJHC 340 (14 April 2023)

Court

South Gauteng High Court, Johannesburg

Case number

2021/34174

Judge

MJ Engelbrecht

The applicant established standing as a creditor with a liquidated claim exceeding the statutory amount. The first respondent committed an act of insolvency as evidenced by the nulla bona return and his admission of inability to pay. The only known asset is an undivided half share in immovable property, and the estimated value of the property provides a reasonable prospect of advantage to creditors, even if the extent of pecuniary benefit cannot be precisely determined. The court found that sequestration is the only means for creditors to obtain payment, and the requirements of section 10 of…

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• Provisional Sequestration
• Insolvency Act Section 10
• Creditor Claim
• Act Of Insolvency
• Advantage To Creditors

Nexus AG (Pty) Ltd v Alexander and Another (680/2021)

Nexus AG (Pty) Ltd v Alexander and Another (680/2021) [2021] ZAFSHC 167 (1 July 2021)

Court

Free State High Court, Bloemfontein

Case number

680/2021

Judge

P. J Loubser

The court found that the First Respondent, as surety and co-principal debtor for Remitto (Pty) Ltd, remained liable for the debt owed to the Applicant despite the adoption of a business rescue plan. The deed of suretyship expressly provided that compromise of the principal debt would not release the surety, and the business rescue plan did not contain an absolute prohibition on enforcement of suretyship. The Applicant established a claim against the First Respondent, who failed to pay and did not demonstrate solvency. The requirements of Sections 9 and 10 of the Insolvency Act were met on a p…

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• Provisional Sequestration
• Suretyship Liability
• Business Rescue
• Certificate Of Balance
• Insolvency Act Section 10

Webb v Fourie and Another (3571/2018)

Webb v Fourie and Another (3571/2018) [2020] ZAMPMHC 36 (30 January 2020)

Court

Middelburg High Court, Mpumalanga

Case number

3571/2018

Judge

Brauckmann

The court found that the original order was ambiguous and did not reflect its true intention, as it failed to specify whether the sequestration was provisional or final and omitted the required rule nisi and return date. The error was patent and arose from the judge's own drafting, not from the conduct of the parties. The requirements for a provisional sequestration order under section 10 of the Insolvency Act were met, and the relief sought by the applicant was for provisional sequestration. In terms of Rule 42(1)(b), the court has discretion to vary its order to correct such ambiguity and o…

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• Provisional Sequestration
• Variation Of Court Order
• Rule 42 Uniform Rules
• Insolvency Act Section 10
• Rule Nisi
• Finality Of Judgments

VBS Mutual Bank (In Liquidation) v Ramavhunga and Others (2018/25062; 2018/25057)

VBS Mutual Bank (In Liquidation) v Ramavhunga and Others (2018/25062; 2018/25057) [2018] ZAGPJHC 516 (3 August 2018)

Court

South Gauteng High Court, Johannesburg

Case number

2018/25062; 2018/25057

Judge

M P Tsoka

The High Court granted provisional sequestration orders against two VBS executives and a third respondent, finding prima facie proof of fraud, insolvency, and creditor benefit.

• Provisional Sequestration
• Insolvency Act Section 10
• Fraudulent Conduct
• Advantage Of Creditors
• Admissibility Of Hearsay Evidence
• Provisional-sequestration

Nutrigrun (Pty) Ltd v Odendaal and Another (5603/2017)

Nutrigrun (Pty) Ltd v Odendaal and Another (5603/2017) [2018] ZAFSHC 52 (3 May 2018)

Court

Free State High Court, Bloemfontein

Case number

5603/2017

Judge

M A Mathebula

The court found that the applicant had established a prima facie case for provisional sequestration under section 10 of the Insolvency Act. The respondents admitted indebtedness and inability to pay, and the circumstances surrounding asset transfers and the timing of litigation raised reasonable prospects that further assets or claims could be uncovered through the sequestration process. The court rejected the respondents' argument that the application was speculative and that less intrusive remedies were preferable, noting that section 65A of the Magistrate's Court Act is limited in scope co…

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• Provisional Sequestration
• Advantage To Creditors
• Insolvency Act Section 10
• Creditor Claims
• Acts Of Insolvency

Shackleton Credit Management (Pty) Ltd v Vabaza (24/2016)

Shackleton Credit Management (Pty) Ltd v Vabaza (24/2016) [2016] ZAECPEHC 86 (20 October 2016)

Court

Eastern Cape High Court, Port Elizabeth

Case number

24/2016

Judge

J W Eksteen

High Court granted provisional sequestration, finding a reasonable prospect that a trustee could uncover assets for creditors.

• Provisional Sequestration
• Advantage To Creditors
• Insolvency Act Section 10
• Provisional-sequestration
• Advantage-to-creditors
• Insolvency-act-section-10

Standard Bank of South Africa Limited v Potgieter and Another (21284/2015)

Standard Bank of South Africa Limited v Potgieter and Another (21284/2015) [2016] ZAWCHC 23 (9 March 2016)

Court

Western Cape High Court, Cape Town

Case number

21284/2015

Judge

Koen AJ

The High Court granted leave to intervene and provisional sequestration, but refused both postponement requests, finding a prima facie advantage to creditors.

• Provisional Sequestration
• Advantage To Creditors
• Leave To Intervene
• Postponement Of Hearing
• Insolvency Act Section 10
• Provisional-sequestration

Business Partners Limited v Tsakiroglou and Another (17827/2014)

Business Partners Limited v Tsakiroglou and Another (17827/2014) [2015] ZAWCHC 61 (13 May 2015)

Court

Western Cape High Court, Cape Town

Case number

17827/2014

Judge

Riley AJ

The court granted provisional sequestration, finding the first respondent actually insolvent and rejecting his reliance on business rescue and alleged asset values.

• Suretyship Liability
• Business Rescue
• Provisional Sequestration
• Insolvency Act Section 10
• Creditor Rights
• Provisional-sequestration