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[2010] ZAGPPHC 545
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Ex Parte: Manie Theunis De Bruyn (55000/2009) [2010] ZAGPPHC 545 (24 February 2010)
IN
THE HIGH COURT OF SOUTH AFRICA
(NORTH
GAUTENG, PRETORIA)
CASE NO: 55000/2009
DATE: 24 FEBRUARY
2010
NOT REPORTABLE
NOT OF INTEREST TO
OTHER JUDGES
Ex Parte Application
of
MANIE THEUNIS DE
BRUYN
...........................................................................................................
Applicant
JUDGMENT
MAKGOKA,
J
[1]
This is an application for voluntary surrender. The applicant’s
assets exceed his liabilities. That on its own however,
is not a
basis to refuse this application. See:
Ex
Parte: Harmse
2005
(1) SA 323
(N).
[2] The applicant
alleges that he was employed as a financial consultant by Absa Bank.
The reason for bringing this application
is set out in the
applicant’s affidavit as follows.
“
1.
Ek was werksaam as ’n finansiele konsultant by Absa Bank.
Gedurende Junie 2007 tot Augstus 2008 was ek spesifiek betrokke
by
die onderhandeling met Absa Bank en die Zenith Bank in die vestiging
van ’n infrastruktuur in ’n bankstelsel vir
Zenith Bank
in Nigerie.
2. Dit het ook
ingesluit en structuring van ’n pensioen fonds. Ek was verder
betrokke by die onderhandeling en fasiliteerer
van ’n
kommersiele ontwikkeling in Nigerie.
3. Gemelde dienste
deur my gelewer sou aanvanlike van voordurende aards wees, en was
daar ook vooruitsigte om van my diens gebruik
te maak in ander Afrika
lande. As gevolg van die wereld ekonomiese insinking is my kontrak
nie verleng nie, en is verede onderhandeling
tydelik gestaak.
4. As gevolg van die
beeingdiging van my dienste kan ek nie meer my finansiele
verpligtinge nakom nie en moes ek noodgedwonge geld
leen net om my
noodsaaklike lewenskoste to delg.”
[3] The applicant is
an owner of five immovable properties, with estimated total value of
R19 720 000.00. His moveable assets are
stated as a bakkie valued at
R110 000.00 and furniture worth R15 000.00. His total assets are
therefore stated as amounting to
R19 845.000. 00.
[4] His liabilities
amount to R18 330 416.92 thus leaving a surplus of R1 614. 583. 08,
being the amount by which his assets exceed
his liabilities.
[5] The applicant
states that he has not been able to sell any of his immovable
properties by way of private auction. He presently
has an income of
only R15 000.00.
[6] The applicant’s
debts in respect of credit cards, overdrawn accounts, loans and
clothing accounts, amount to R1 458 344.19.
[7] The dividend
which would supposedly accrue to creditors is 15 cents in a rand
after an amount of R2 994 267. 52 shall have been
paid to the
curator, auction fees and other sequestration costs. An amount of
R237 356.12 is left for the distribution among debtors,
whose total
amount is R1 572 040. 56. The reason I mention this calculation is
the amounts payable to the curator (R674 242. 00)
and the auctioneer
(R1 348 848.00), respectively.
[8] If the creditors
are left to share a paltry R237 356.12, and auctioneers and curators
pocket a staggering R2 023 272.00 of the
applicant’s assets, I
am constrained to ask: to whose benefit is the acceptance of the
applicant’s estate? Clearly
on the figures outlined above,
parties other than the creditors benefit and the creditors are left
to scramble for the crumbs.
On this basis alone, I am not satisfied
that the acceptance of the applicant’s estate would be to the
advantage of his creditors.
I would therefore not exercise my
discretion in the applicant’s favour.
[9] There are other
reasons also why I should not do so. The applicant has not fully
disclosed his financial affairs. From the evidence,
one knows nothing
about his financial activities, past or present, other than he was a
financial consultant. He simply states that
he earns R15 00.00
without stating the source thereof. He does not disclose whether any
of his three immovable properties are rented
out (the other two being
a vacant land and an uncompleted house, respectively).
[10] The applicant
himself has stated that he has been unsuccessful to sell properties
at an auction. In view of this, the claims
by the sworn valuator that
any of the properties can be sold for amounts averred in the
valuation reports, should be viewed with
a measure of scepticism.
[11]
As I see it, the purpose of this application is geared at relieving
the applicant of the amount over R1,5 million owed in respect
of
credit cerds, overdrawn accounts, loans and clothing accounts. This
is contrived and is a mechanism designed to abuse the process
of this
Court. The machinery of voluntary surrender was primarily designed
for the benefit of creditors, and not for the relief
of harassed
debtors. See
Mayet
v
Pillay
1955 (2) SA
309
(N)
at 311D-E.
[12] On a
consideration of the factors discussed above, I am of the view that
the surrender of the applicant’s estate, would
not be to the
advantage of his creditors, as a result of which I exercise my
discretion against the applicant.
[13] The application
for voluntary surrender is therefore refused.
T.M. MAKGOKA
JUDGE OF THE HIGH
COURT
DATE HEARD: 3
DECEMBER 2009
JUDGMENT
DELIVERED: 24 FEBUARY 2010
FOR THE
APPLICANT: MR C.E BOTHA (ATTORNEY)
INSTRUCTED
BY:
FRANCOIS JOUBERT,
THE WILLOWS,
PRETORIA