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[2023] ZAECQBHC 14
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Sedwin Investments (Pty) Ltd v N.A.D (2024/2022;3119/2021) [2023] ZAECQBHC 14; [2023] 2 All SA 525 (ECP) (7 March 2023)

SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
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Policy
IN THE HIGH COURT OF
SOUTH AFRICA
[EASTERN CAPE
DIVISION, GQEBERHA]
CASE NO.: 2024/2022
In the matter between: -
SEDWIN INVESTMENTS
(PTY) LTD

APPLICANT
and
N[...] A[...]
D[...]

RESPONDENT
CASE NO.: 3119/2021
SEDWIN INVESTMENTS
(PTY) LTD

APPLICANT
and
M[...] J[...]
D[...]

RESPONDENT
JUDGMENT
NORMAN J:
[1]
Two applications served before me on 16 February 2023. They are
sequestration applications
brought in terms of the Insolvency Act 24
of 1936 (“the Act”). The respondents in the two
applications were once married
to each other but got divorced in
2010. The facts and the points of law taken by both respondents, in
each of the matters, are
largely the same.  The only difference
is that in the application bearing case No. 2024/2022, involving
N[...] A[...] D[...]
(“N[...]”) , the applicant seeks a
provisional order of sequestration, whereas in case no 3199/2021,
brought against
M[...] J[...] D[...] (“M[...]”) ,
N[...]’s former wife, it seeks a final order of sequestration.
Both applications
are opposed by the respondents.
[2]
The founding affidavits supporting the applications were deposed to
by one Harold Trevor
Jadeiken, who is a Director and the only
shareholder of the applicant. N[...] and M[...] are described as a
businessman and businesswoman,
respectively.
[3]
I shall deal first with the application relating to N[...].
Grounds upon which the
relief sought is based.
[4]
The applicant, in seeking an order of provisional sequestration
against N[...],  relied
on three grounds, namely: that he has
committed an act of insolvency as provided for in section 8(b) of the
Act; he is, to the
best of applicant’s knowledge, factually
insolvent as contemplated in sections 9 (1) and 10 of the Act; and
that applicant
has reason to believe that it will be to the advantage
of creditors if N[...]’s estate is sequestrated. At the
hearing, the
applicant was represented by Mr White. Mr Steyn
represented both N[...] and M[...].
Background facts
[5]
The facts outlined herein apply to both N[...] and M[...], except
where it is specifically
indicated otherwise. The applicant alleged
that:
5.1
It lent monies to N[...] and M[...], between January and February
2014 in Cape Town and two oral agreements
were concluded between
them. Both M[...] and N[...] acknowledged their indebtedness to the
applicant in writing. The applicant
complied with its obligations in
terms of the agreements. When N[...] and M[...] defaulted, the
capital sum, together with the
interest thereon, became due and
payable. Despite demand, N[...] and M[...] failed to pay the money.
That caused the applicant
to institute an action against them on 23
May 2017, claiming,
inter alia,
the capital sums advanced,
interest thereon and costs of suit on the scale as between attorney
and own client. The action was defended
by N[...] and M[...]. On 06
May 2019, the parties concluded a settlement agreement. N[...]
represented both himself and M[...]
in the settlement discussions and
they both signed the agreement.
5.2
The terms of the settlement agreement were,
inter alia,
that
N[...] and M[...] agreed to pay the applicant, jointly and severally,
the one paying the other to be absolved, the sum of
R7 000 000.00.
That sum was to bear interest at the prime rate per month from 7 May
2019, which interest would be calculated
daily and compounded
monthly, until the capital amount and interest were paid in full to
the applicant. The applicant agreed to
defer payment of the capital
and interest for a period of twelve months from the date of signature
of the agreement, and not later
than 7 May 2020.
5.3
During the morning of Tuesday, 7 May 2019, and before the
commencement of the trial, N[...]
requested one Charl Boshoff of the
applicant’s attorneys’ firm to remove M[...] from the
agreement. The applicant refused
to do so. Thereafter, N[...] claimed
that the agreement had been concluded under duress and that no
enforceable settlement had
been reached between the parties.
5.4
The applicant subsequently launched an application to have the
agreement made an Order of
Court. Despite opposition by N[...] and
M[...], Revelas J held on 10 November 2022 that a valid settlement
agreement had been reached
and thus made it an Order of Court.
N[...] and M[...] applied for leave to appeal, which
application was refused by Revelas
J. They sought special leave to
appeal from the Supreme Court of Appeal. Upon dismissal of that
application, they petitioned the
President of the Supreme Court of
Appeal for reconsideration of the order without success. Based on
these facts, the applicant
contends that it has a liquidated claim
against both N[...] and M[...] for payment of the amount of
R7 000 000.00 together
with interest, as provided for in
the aforesaid Order.
5.5
Pursuant to the order being granted, the Registrar issued warrants of
execution against
N[...] and M[...] which were served by the Sheriff
on them, personally. The Sheriff concluded that no movable or
disposable property
could be found and thereafter rendered
nulla
bona
returns of service.
Applicant’s case
against N[...]
5.6
The applicant, relying on the nulla
bona
return, contends that
N[...] committed an act of insolvency as envisaged in section 8 (b)
of the Act.  To the best of its
knowledge, N[...] is insolvent
as contemplated in sections 9 (1) and 10 of the Act.  There is
reason to believe that it will
be to the advantage of creditors if
N[...]’s estate is sequestrated.  The applicant relied on,
inter alia
, a search work report and LightStone Scheme
Valuations dated 11 February 2021, 26 May 2021 and 21 June 2022 which
reflected,
inter alia
, that N[...] is:
(a)
a registered co-owner together with M[...] of the property situated
at ERF 2[…], K[...]
K[...] ROAD, T[...], PORT ELIZABETH,
EASTERN CAPE, held under title deed T[...] C[…], registered in
the King Williams Town
Division. This property is not subject to a
bond. Its estimated value is R2 459 000.00.
(b)
the owner of two units, namely, Unit 3[…], Scheme No.5[...],
under scheme SS S[...] held
under title deed S[...]registered in King
Williams Town Division, and Unit 3[...] Scheme No. 5[...] SS S[...]
under title deed
S[...] and registered in the King Williams Town
Division. The estimated value of both Units is R1 400 000.00
(c)
the owner of ERF 3[...] Paarl, held under title deed T[...] and
registered in the Cape Town Division,
whose estimated value is R4 250
000.00.
(d)
a registered co-owner together with M[...] of a property registered
in the Pretoria Division
for which a title deed has been lost with
the document number VA2538/2018.
The applicant contends
that the respondent would have a share in the purchase price of
R780 000.00.
5.7
Upon further investigations, it stated that it discovered that the
Pretoria property was
sold at a purchase price of R780 000.00
and was transferred and registered on 25 April 2018. It contends that
it is not aware
of what N[...] did with these funds.
5.8
It listed the liabilities of N[...] as:
(a)
a notarial bond held in favour of Firstrand Bank under B[...] that
had
been
registered over the T[...] Property for an amount of R3 000
000.00
(b)
There was also another bond with Firstrand Bank under S[...] C[…]
registered over the
S[...] Properties for an amount of R753 000.00
(c)
There are two bonds also held in favour of Firstrand Bank that had
been registered over the Paarl
Property, in the amounts of R1 500
000.00 and R2 400 000.00.
(d)  The applicant’s
debt of R7 000 000.00.
[6]
The applicant submitted that it will be to the advantage of N[...]’s
creditors
if his estate is sequestrated so that a Trustee can take
charge of the estate and conduct the necessary investigations or
enquiries
in order to locate assets and pay his creditors. In support
of this statement the applicant stated that, should the immovable
properties
be sold, then the creditors, including the applicant, will
enjoy at least a not-negligible dividend in an equal distribution.
N[...]’s case
[7]
N[...] did not file an answering
affidavit instead he took points of law as contemplated
in Rule 6
(5)(d)(iii) of the Uniform Rules of Court. I hasten to point out that
N[...] disputes the validity of the warrant and
the
nulla
bona
return.
[8]
He raised four points under the following sub- headings, first,
applicant’s failure
to prove an act of insolvency as
contemplated in section 8(b); second, that the nulla
bona
return of service is defective, third, actual insolvency was not
evident on papers, and fourth, the applicant’s failure to

allege that it is a registered credit provider with the National
Credit Regulator and thus it contravened the provisions of section
40
(1) of the National Credit Act , 34 of 2005 (“the NCA”).
He submitted that the applicant has failed to make
out a case
for the relief sought.
Applicant’s
legal submissions
[9]
Mr White submitted that the
allegations made by the applicant have not been refuted and
should be
accepted as correct. Relying on
Boxer
Superstores Mthatha and Another v Mbenya
[1]
for the submission that because there is no answering affidavit
rebutting the applicant’s allegations, this court must treat

those allegations as established facts.
[10]
He further submitted that the point taken about the applicant not
being registered with the National
Credit Regulator, must fail
because, in accordance with the provisions of section 89 (5) of the
National Credit Act an unlawful
credit agreement is not void unless a
court declares the agreement to be unlawful.  He further
submitted that N[...] is precluded
from raising the objection since a
period of more than three years has lapsed after the loan agreement
was concluded between the
parties.  In this regard he relied on
SA
Taxi Securitisation ( Pty ) Ltd v National Credit Regulator
[2]
.
[11]
In so far as the attack on the warrant is concerned, he submitted
that the warrant was properly issued.
In this regard counsel drew
attention to a copy of the warrant, attached to his heads of
argument, which had been signed by the
Registrar. He went on to state
in his heads of argument that the practice in this Division is that
the Registrar only signs the
original warrant and thereafter puts a
stamp on all the copies.
[12]
He submitted that the criticism levelled against the
nulla bona
return has no merit because N[...] has not adduced evidence refuting
the sheriff’s return. He submitted that N[...], upon
whom a
lawful warrant was executed, committed an act of insolvency. He
submitted that the
nulla bona
return and the valuations relied
upon by the applicant led it to believe that N[...] is insolvent. He
submitted that placing N[...]’s
estate in the hands of the
Master will be to the advantage of creditors.  He urged the
court to reject all the points made
by N[...] on the basis that they
lack merit.
N[...]’s legal
submissions
[13]
Mr Steyn submitted that section 8(b) contemplates a situation where a
judgment debtor fails to satisfy a
judgment debt upon the demand of
the officer whose duty it is to execute that judgment. He attacked
“the Warrant” on
the basis that the Sheriff attempted to
execute, on 23 November 2020, a warrant that was not issued by the
Registrar because it
was unsigned.  He submitted that, in order
for a demand to fall within the ambit of section 8(b) of the Act,
such demand must
be lawfully made. If not, a judgment debtor’s
failure to accede to the demand does not constitute an act of
insolvency to
warrant sequestration.
[14]
He further submitted that the Sheriff’s return of service is
defective because the sheriff
recorded: “
N[...] A[...]
D[...], however, informed me that SHE has no money…”
He
argued that the word “
SHE”
is specially emphasized
because it is expressed in capital letters. He submitted that does
not constitute evidence that the sheriff
in fact demanded payment
from N[...], a male person,  but rather indicates such demand
having been made to a female person.
He further submitted that strict
compliance with the provisions of section 8 (b) is a jurisdictional
requirement, rendering non-
compliance therewith, fatal to the
application.
[15]
He further submitted that no actual insolvency is evident on the
papers because the applicant stated that
N[...] is, to the best of
its knowledge, insolvent, as contemplated in sections 9 (1) and 10 of
the Act. That statement, according
to Mr Steyn, is insufficient to
place the application within the ambit of section 9(1) read with
section 10 of the Act.
[16]
It was submitted that the applicant failed to lay any factual basis
which would warrant the conclusion
that N[...] is unable to pay the
debt and or that he is insolvent. In this regard, he relied on the
allegations made by the applicant,
inter
alia,
that : “
I
am not privy to the financial affairs of the Respondent and must
therefore rely on the information obtained by the Sheriff and
through
investigation into Search Work records.”
[3]
.
[17]
Dealing with the search work records, he submitted that it is
apparent that N[...] was the owner
of a number of immovable
properties, the values of which are not determined. He further
contends that the applicant failed to lay
a factual basis from which
a conclusion could be drawn that N[...] is factually insolvent. It
also failed to prove that the refusal
by N[...] to pay the amount
claimed,  is due to inability to pay.
[18]
He argued that the fact that the applicant did not state that it was
a registered credit provider
as envisaged in the NCA renders a claim
of repayment under the alleged loan agreement unenforceable and a
subsequent consent order
does not render lawful that which is
prohibited by statute.
[19]
On the applicant’s own version, he argued, N[...] has disputed
enforceability of the claimed debt
right from the outset. His refusal
to pay demonstrates his firm belief that he was not liable to pay any
monies to the applicant.
In argument, Mr Steyn raised a point that
there was no Master’s certificate placed before court and
submitted that failure
to furnish one was fatal to the application.
On the basis of these legal points he moved for the dismissal of the
application
with costs.
[20]
Mr White, replied and addressed the issue of the Master’s
Certificate, by simply directing the
Court to a security bond.  He
submitted that the security bond served as certification. On the
point relating to failure to
state whether the applicant is a
registered credit provider, he stated that the judgment upon which
the claim is based exists and
has not been set aside. He submitted
that these points must fail as they have no merit.
Discussion
[21]
The relevant provisions of the Act provide as follows:
“
8.
Act of insolvency – a debtor commits an act of insolvency -
(a)
. . . .
(b)
if a court has given judgment against him and he fails, upon the
demand of the officer whose
duty it is to execute that judgment, to
satisfy it or to indicate to that officer disposable property
sufficient to satisfy it,
or if it appears from the return made by
that officer that he has not found sufficient disposable property to
satisfy the judgment.
9.
Petition for sequestration of estate –
(1)
A creditor (or his agent) who has a liquidated claim for not less
than fifty pounds, or
two or more creditors (or their agent) who in
the aggregate have liquidated claims for not less than one hundred
pounds against
a debtor who has committed an act of insolvency, or is
insolvent, may petition the court for the sequestration of the estate
of
the debtor.
10.
Provisional sequestration. If the court to which the petition for the
sequestration of the
estate of a debtor has been presented is of the
opinion that prima facie –
(a)
the petitioning creditor has
established against the debtor a claim such as is mentioned in
subsection (1) of section nine; and
(b)
the debtor has committed an act of
insolvency or is insolvent; and
(c)
there is reason to believe that it
will be to the advantage of creditors of the debtor if his estate is
sequestrated, it may make
an order sequestrating the estate of the
debtor provisionally.”
[22]
It is trite that in the exercise of the court’s discretion as
to whether or not to grant
a provisional sequestration order, the
court may refuse to sequestrate where, in light of the evidence
adduced by the debtor in
opposition to the application, it is
satisfied that, notwithstanding the act of insolvency, the debtor is
in fact solvent.
[4]
[23]
As aforementioned, Mr White submitted that the unchallenged
allegations must be accepted as established
facts. Although that may
be so, that does not bar this Court from exercising its discretion.
If that was so the option given to
litigants by the provisions of
Rule 6 (5)(d)(iii), would be rendered nugatory . The applicant must
still satisfy this court that
it has satisfied the jurisdictional
requirements in order for it to succeed in this application.
[24]     I
wish to dispose of the issue raised that the warrant was not signed
and thus not issued by the Registrar.
It was further argued that
whatever demand was made, relative thereto, it was not a lawful one.
As aforementioned,  a copy
of the signed warrant was placed
before Court by the applicant, attached to the heads of argument
which were delivered on 3 February
2023. I am satisfied that the
original warrant was issued in the action (Case no. 1819/2017). The
applicant relied on a copy which
bore the Registrar’s stamp and
that of the sheriff.  Since a copy of the original was made
available, N[...] did not
take steps to refute it.  Instead, it
was argued that it did not constitute evidence since it was attached
to heads of argument.
In my view, the applicant adopted a most
pragmatic approach by putting up a copy of the original warrant, the
original whereof
which was in the action file. The explanation given
about the practice in this Division that the Registrar signs only the
original
of the warrant and places the stamp on the copies is
consistent with what appears on the copies that form part of the
record. I
accordingly accept the copy of the original furnished in
the applicant’s heads of argument.   It was submitted
by the officer of the court and I had no reason to doubt it. I find
that the warrant was issued lawfully. This point must accordingly

fail.
Was the warrant
executed properly?
[25]
N[...] sought to impeach the
nulla bona
return by stating that
the demand made was not valid.
[26]
The nulla bona return of service recorded the following :
‘
RETURN
OF SERVICE – WARRANT OF EXECUTION
On this 20
th
day of June 2022 at 10:00 I served this WARRANT OF EXECUTION upon
N[...] A[...] D[...] personally at LOT 2[…], K[...] K[...]

ROAD, T[...], PE by handing to the abovementioned a copy thereof
after exhibiting the original and explaining the nature and exigency

of the said process. (Rule 4(1)(a)(i). Further it is hereby certified
that at the above address,
an amount of
(sic)
in satisfaction
of this warrant
had been demanded from N[...] A[...] D[...].
N[...] A[...] D[...],
however, informed me that
SHE
has no money or negotiable
property inter alia, wherewith to satisfy the said warrant or a
portion thereof. No movable property/disposable
property was either
pointed out or could be found by me after a diligent search and
enquiry at the given address. Therefore my
return is one of NULLA
BONA.
It is hereby further
certified that N[...] A[...] D[...] has been requested
in terms of
section 66(8)
to declare whether HE has any immovable property
which is executable on which the following answer had been furnished:
INSUFFICIENT
ASSETS TO ATTACH, DEBTOR REFUSED TO SIGN A NULLA BONA
CERTIFICATE.
Attempt:
04.05.22 at 12:57 -
Premises Locked – Note Left
Attempt:
18.05.22 at 13:03 –
Premises Locked – Note Left
Attempt:
02.06.22 at 17:18 –
Premises Locked – Note Left
Note: The original return
together with the original abovementioned process is dispatched to
the mandatory.’ (my emphasis)
[27]
On the face of both nulla bona returns there is an omission of
the amount demanded by the Sheriff
from either M[...] or N[...], as
alleged.  The argument that the demand could have been made to a
female person is, with respect,
not far-fetched because the
nulla
bona
return in respect of M[...] bears the same wording, same
omission of the amount and the same reference to section 66 (8).  In

my view, if one has regard to the contents of the returns, one is
left with an impression that the wording was a copy and paste
job of
the contents of one return into another , with a few modifications,
such as names of the parties.  In this regard I
find that both
nulla bona
returns are defective and thus impeachable.
The applicant was given notice that the returns were impugned. All
that it needed
to do was to request the sheriff to rectify any
errors. It elected to proffer a response by way of legal argument on
an issue that
could only be verified by evidence from the sheriff.
In the light of that omission, it follows that the certification by
the sheriff in this regard was not correct.  An amount demanded
by the sheriff from a debtor is central to execution and it
must be
recorded. The omission, in my view, vitiates the validity of the
nulla bona return.  The same findings apply in respect
of the
nulla bona return relating to M[...].
[28]
Ex facie
the
nulla bona
returns, the sheriff seemed to
have raised certain enquiries with N[...]  and M[...]
purportedly in terms of section 66 (8).
It is not indicated
whether it is
section 66
(8) of the
Insolvency Act or
any other Act.
I raised those provisions with Mr White, in argument, but he failed
to give a satisfactory answer. The Act, in its
current form, does not
have a section 66 (8).
The section referred to
in the
nulla bona
returns is a section that is contained in the Magistrate’s
Court Act 32 of 1944.  This demonstrates
that the sheriff
relied on, amongst others, an Act that did not apply in a process
issued by the registrar of this court. Due to
the importance of the
nulla bona
return in sequestration proceedings, a wrong or
irrelevant invocation of the law, cannot simply be overlooked.
I accordingly
find that the nulla bona return is not valid for the
reasons set out above. The applicant failed to discharge the onus
resting
on it to prove that N[...] committed an act of insolvency as
envisaged in section 8 (b) of the Act. This finding applies equally

to M[...]’s case.
[29]
The applicant bears the onus to prove an act of
insolvency. In
Sussman
Co. (Pty) Ltd v Schwarzer
[5]
the court stated:
“
The
onus is always on the applicant to prove that respondent has
committed an act of insolvency. If an act of insolvency in terms
of
sec .8 (b) is relied upon the onus is discharged if a return is filed
which on the face of it is valid and if the facts therein
contained
are facts which the applicant can rely upon in terms of sec.8(b).
If the respondent then wishes to impeach those
facts then the onus shifts to him to show by clear evidence that
although the return
shows that the requirements of sec. 8 (b) have
been complied with they were in fact not complied with and that that
return is not
a proper return…”
(my
emphasis).
Is the respondent
insolvent as contemplated in sections 9 (1) and 10 of the Act?
[30]
The applicant has, relying on the sheriff’s return of service
and on the search works and LightStone
Scheme Valuations attached to
the application, stated that it reasonably believes that N[...] is
insolvent. N[...] was served with
the application for sequestration
on 03 August 2022.  On 12 August 2022 he filed a notice of
intention to oppose the application.
As aforementioned, in the notice
he raised only certain points of law.  He raised the point that
the applicant stated that
he is not privy to his financial affairs
and attacks its sole reliance on the sheriff’s
nulla bona
return
and search works report.
[31]
The fact that N[...] decided to raise points of law only does not
relieve this Court of the obligation to
satisfy itself that he is
insolvent.  Some of the facts that have been placed before Court
by the applicant were obtained
during February and May 2021 and the
application was brought on 19 July 2022, more than a year later.
For example, the Search
Works Lightstone Erf Valuation dated 26 May
2021 for the property, Erf 2[...] T[...], indicates a municipal value
of R4 000 000.00.
In terms of the automated valuation, it
had an expected value of R2 450 000.00. However, in its
founding affidavit, the
applicant put the estimated value at
R2 459 000.00.  There is no indication whether the
municipal valuation, which
is higher, was considered or not. It is
not indicated whether the amount represents what would be received in
a forced sale, bearing
in mind that, on the applicant’s
version, that property is not subject to a bond.
[32]
In respect of the two Unit Numbers 3[…] and 3[...], SS
S[...], in King William’s Town,
each had a purchase price of
R753 000.00.  According to the Lightstone Valuation done on
21 June 2022, the municipal
value in respect of Unit 3[...], done in
2013, was R1 050 000.00 and the expected value was
R1 400 000.00.
However, in its founding affidavit the
applicant put the estimated value of both Units 3[…] and
3[...] at R1 400 000.00
because there was a 0.00 expected
value for Unit 3[…].  This is despite the value of
R100 000,00 attached to it
by the municipality.  These
valuations are not sworn appraisals.  As a result, matters such
as the qualifications of
the valuer; the age and amenities of a
particular property; any inspections conducted; and whether the
values relate to a forced
sale are not apparent from the valuations
attached to the application.
[33]
Mars states that:
“
It
is
established practice that all assets of the insolvent estate that are
to be liquidated in the process of obtaining a dividend
for the
creditors must be valued on the basis that they will be disposed of
at a forced sale. Such valuation must be effected by
a qualified and
experienced valuator who must present such valuation under oath, who
must be indubitably independent and must have
inspected the assets
personally.”
[6]
[34]
In
casu
, the accuracy scores of the valuations range between
47% and 62%.  I am not satisfied that the value of N[...]’s
properties
has been properly determined. What has been placed before
the court does not lead to a conclusion that the respondent’s
liabilities
exceed his assets.
[35]
There is another aspect which fortifies my finding in this regard.
In the judgment of Revelas
J, relied upon by the applicant, the
learned Judge stated,
inter alia
:
“
9.
It is common cause on the papers that
prior to the agreement sought to be made an order of court, the first
respondent proposed
that they settle on the basis that an immovable
property owned by the respondent be transferred to the applicant. The
value of
the property was considerably more than the sum proposed,
being in excess of R23 million. The applicant was not amenable to
this
proposal…”
[36]
There is no mention of this valuable property in the applicant’s
founding affidavit. One
would have expected that it would be dealt
with in the assessment of N[...]’s estate, since it is referred
to as a common
cause fact in the judgment.
[37]
In
Absa
Bank v Rheboskloof (Pty) Ltd
[7]
the court found that in order for the applicant to establish factual
insolvency, it must put up evidence of the debtor’s
liabilities
and the market value of his assets. Actual insolvency means that the
debtor’s liabilities actually exceed the
value of his assets.
[38]
In
Ohlssons’
Cape Breweries Ltd v Totten
[8]
Wessels
J stated:
“
When
an applicant comes into court to show that the respondent’s
estate is insolvent, there must be no doubt about the facts.
The
court must not be left to conjecture.”
[39]
For all the reasons set out above, I find that the applicant has
failed to prove that N[...]
is insolvent.
Will the sequestration
of N[...]’s estate be to the advantage of creditors?
[40]
The onus of establishing advantage to creditors
remains on the sequestrating creditor.  In this regard
the
applicant relied on
Wilkins
v Pieterse
[9]
for the contention that it is not necessary under this requirement
for the applicant to convince this Court either
prima
facie
or on a balance of probabilities that there will be some advantage to
creditors. All that is required is that it is established
that there
is reason to believe that there will be an advantage to creditors.
[41]
In order for there to be an advantage to creditors, a pecuniary
benefit in the form of a dividend,
which is not immaterial, must be
anticipated. There must be a reasonable prospect of a not negligible
dividend, not necessarily
a likelihood but a prospect which is not
too remote. The courts generally require proof that there will be, or
that there is reason
to believe that there will be a free residue of
not less than 20 cents in the rand
[10]
.
In this case, the applicant did not even attempt to place facts
before the court or even give an estimate of the dividend which
will
be distributed to the creditors
[11]
.
[42]
The applicant has fallen short of satisfying the
test laid down in
Body
Corporate Empire Gardens v Sithole
[12]
that the advantage to creditors is fulfilled where it is established
that there is reason to believe that there will be advantage
to a
‘substantial proportion’ or the majority of the creditors
reckoned by value
[13]
.
Applicant not
registered as a credit provider in terms of the National Credit Act
[43]
The point made is that the applicant is not a registered credit
provider as envisaged in section 40 (1)
(b) of the NCA. The applicant
relied on,
inter alia,
the existence of a judgment that has
not been satisfied. I point out that the applicant, by enforcing a
liquidated claim through
sequestration proceedings, brought the
validity of the claim under a microscope.  It cannot be heard to
complain that, now
that there is a judgment, there can be no
complaint directed at the claim.  There is no substance in that
complaint because
a debtor should be able to raise what it perceives
to be a contravention of the law which may impact on the validity of
the claim,
at any time, even in sequestration proceedings, otherwise
unlawful claims may hide behind judgments.  It is how the
complaint
is brought that will finally occupy the court’s mind
in deciding whether that legal objection should receive its attention

or not.
[44]
Mr Steyn referred to
Du
Bruyn N.O. v Karsten
[14]
”
wherein the following was said:
“
[43]
The absence of such registration renders a claim for
re-payment under       the alleged
loan
agreement unenforceable, and a subsequent consent order does not
render lawful that which was prohibited by statute.”
[45]
The judgment of Revelas J  reveals that the applicant was alive
to a possibility that the agreements
may be rendered void for
non-compliance with the provisions of what it referred to as the
Consumer Protection Act 68 of 2008
. It crafted the alternative claims
as follows:
Claim B (in the alternative to Claim A, and only in
the event of a finding that the agreement is illegal and void for non
–
compliance with the
Consumer Protection Act&rdquo
;.
It
catered for that scenario by instituting enrichment claims.
[46]
It is also apparent from the judgment that N[...] opposed the
application to enforce the settlement agreement
on various grounds.
Mr Steyn submitted that by raising the NCA point, N[...], does not
wish to invoke the provisions of the
NCA in these proceedings, but he
wishes to demonstrate the existence of a dispute and the failure on
the part of the applicant
to establish, as a jurisdictional fact,
that N[...] is insolvent.
[47]     A
person challenging a judgment must take steps to have it set aside by
way of appeal, review or have it
rescinded, but that is not what
N[...] has done in the present case. On the face of it, the loans
appear to be credits that exceeded
the threshold of R500 000.00.
If there is no registration as a credit provider, as envisaged
in
section 40
(1), there may very well be a contravention of the NCA
(and an injustice may be uncovered). However, the hands of this Court
are
tied without a proper challenge by N[...] levelled against the
judgment.  The dispute to the claim or debt is so inextricably

linked to the judgment that it cannot be unscrambled without a proper
legal challenge to the judgment.
[48]
The Constitutional Court held that, in terms of
section 165 (5) of the Constitution a court order is binding
until
set aside, irrespective of whether it was valid. Judicial orders
wrongly issued were not nullities but existed in fact and
may have
legal consequences. Their enforceability will depend on whether a
judge had authority to make the decision at the time
he made it
[15]
.
[49]
As aforementioned, the applicant  relied on
SA Taxi
Securitisation
, in addressing the point made by N[...] in terms
of section 40 (1) of the NCA.  The facts in that case are
distinguishable
from the present one because, the applicant in
SA
Taxi
was registered as a credit provider with the National Credit
Regulator in terms of section 40. The issue that the Tribunal dealt

with was whether there was a contravention of section 106 (5) of the
NCA, which prohibits a credit provider from adding any surcharge,

fee, or additional premium above the actual cost of the insurance.
The Tribunal found that the act or omission forming the
basis of the
complaint before the Tribunal may not be older than three years, and
a compliance notice was set aside on that basis.
The issue that
N[...] and M[...] raise about the registration with the National
Credit Regulator is not a timing issue but the
lawfulness of the
credit agreements, which in my view, is a different issue altogether.
[50]
Since there is no collateral challenge to the judgment itself, this
point does not require any
further attention.
Absence of the
Master’s Certificate
[51]
As aforementioned, Mr Steyn raised the point that the Master’s
certificate had not been
produced at the hearing of the matter. As
indicated above, Mr White directed attention to the security bond.
Mr Steyn objected
on the basis that the security bond was not
the Master’s certificate. He argued that failure to place one
before Court was
fatal. I now turn to address this issue.
[52]
Mars
[16]
,
when dealing with a creditor’s application, states that a
Notice of Motion must be prepared in the prescribed form and must
be
accompanied by the applicant’s founding affidavit or that of
his agent and the Master’s certificate. The learned
authors
further provide that the certificate of the Master may be dated after
the date of the application but must accompany the
application when
it is lodged with the court. They contend that a failure to comply
with section 9 (3) is a fatal defect and cannot
be condoned
[17]
.
[53]
Section 9 (3) (b) provides:
“
The
facts stated in the petition shall be confirmed by affidavit and the
petition shall be accompanied
by
a certificate of the Master
given not more than ten days before the date of such petition that
sufficient security has been given for the payment of all fees
and
charges necessary for the prosecution of all sequestration
proceedings and of all costs of administering the estate until a

trustee has been appointed, or if no trustee is appointed, of all
fees and charges necessary for the discharge of the estate from

sequestration.” (my emphasis)
[54]
There is only one person who can issue the certificate as
contemplated in this section and that
is the Master of the High
Court. The security bond relied upon by the applicant, neither bears
a stamp of the Master nor that of
the Registrar or some
acknowledgement of its lodgment with the Master.  In fact, it is
contained in a miscellaneous bundle
and not in the bundle containing
the application that was served on the Master.
[55]
Mr White submitted that as long as there is a security bond that is a
certification. In this
regard
,
he relied on
Hardroad
(Pty) Ltd v Oribi Motors (Pty) Ltd
[18]
.
That case does not support counsel’s submission. I believe that
counsel erroneously referred to
Hardroad
because
at page 363 (where he relied on) , the relevant case ends.
Hardroad
deals with rescission of judgment. The correct citation is
A.Holman
Trading Co. v Pipeweld Con & Erection
[19]
, where the issue was about the timeous giving of security. It is
apparent therefrom that the court dealt with both the giving
of
security and the filing of the certificate. The court stated the
following at 363 B-C:
“
In
Rennies Consolidated (Transvaal) (Pty) Ltd v Cooper
[20]
,
it was held that in an    application for the
provisional sequestration of an estate it is sufficient compliance

with the provisions of sec 9(3) of Act 24 of 1936 for the furnishing
of security if a certificate is obtained before the petition
is filed
in court and served, and
if
the petition is accompanied by the necessary certificate at that
stage
,
the requirements of the section are satisfied. Security cannot,
however, be furnished after the application has been served and

filed.” (my emphasis)
[56]
Mr White also relied on
Court
v Standard Bank of SA Ltd; Court v Bester NO and Others
[21]
.
That decision too, does not support the applicant’s contention.
At 131 B-C the court stated:
“
All
that is thus required by the subsection is
that
security must have been given
before the matter is heard
and
that the security certificate shall then accompany the application
.”
(my emphasis).
There is, in my view, a
clear distinction between a bond of security and the Master’s
certificate.  In any event, this
submission is unsound because
the person who furnishes a bond of security (applicant’s
attorneys) cannot elevate that into
a Master’s certificate as
provided for in the Act.
[57]
Unlike in
Court v Standard Bank of SA Ltd; Court v Bester NO and
Others,
in this case, the Master’s certificate was not
before Court when the matter was heard and thus there was
non-compliance
with the provisions of section 9 (3) of the Act.
[58]
In
Messenger
of the Magistrate’s Court,  Durban v Pillay
[22]
the court held that if a statutory command is couched in such
peremptory terms it is a strong indication, in the absence of
considerations
pointing to another conclusion, that the issuer of the
command intended disobedience to be visited with nullity.
[59]
I find, based on all the reasons advanced above, and in the exercise
of my discretion, that the
applicant has not discharged the onus
resting on it to have the estate of N[...] sequestrated.  The
application must accordingly
fail. There is no reason to depart from
the normal rule that a successful party should be entitled to his or
her costs.
[60]     I
shall accordingly make an Order dismissing the application with
costs.
I now proceed to deal
with Case Number 3119/2021 involving M[...] D[...].
M[...] D[...]’s
case
[61]     A
provisional order of sequestration was granted against M[...] by
Nepgen AJ on 30 August 2022. As indicated
in the first paragraph,
above, I incorporate herein all the facts and legal arguments raised
on behalf of N[...] where he makes
common cause with M[...]’s
case. Those facts and arguments must be read from N[...]’s
judgment as if they are specifically
incorporated herein.
[62]
After the granting of the provisional order of sequestration, the
Court issued a Rule Nisi calling
upon M[...] to show cause why her
estate should not be sequestrated finally and whether the costs of
the application should be
included in the costs of administration of
M[...]’s insolvent estate.  The court further directed the
manner of service
of the provisional order.
[63]
M[...], just like N[...], filed a notice in terms of Rule 6
(5)(d)(iii).  First, she impugned the warrant
of execution on
the same basis that it was not signed. On this basis, she contended
that a demand based on an unsigned warrant
was not lawfully made and
a judgment debtor’s failure to accede to the demand does not
constitute an act of insolvency.  In
this regard, the applicant
failed to bring the application within the provisions of section 8
(b) of the Act. Second, she raised
the point that actual insolvency
was not evident on the papers as there was no factual basis laid for
the conclusion that M[...]
was insolvent.  The search works
report dated 11 February 2021 recorded that M[...] was the owner of a
number of immovable
properties, the value of which were not
determined.  The applicant admitted that it was not privy to the
financial affairs
of M[...] and  relied solely on the search
works and the sheriff’s return of service.
[64]
Third, just like N[...], she raised the point that the applicant
failed to show a factual basis for the
conclusion that she is
factually insolvent or that her refusal to pay was due to an
inability to pay. The applicant in its application
has shown that she
disputed the claimed debt throughout.  Fourth, she contended
that the applicant failed to allege that it
was registered with the
National Credit Regulator in terms of the NCA.  A claim for
re-payment under the alleged loan agreement
is unenforceable, where
the applicant is not registered and a subsequent consent order does
not render lawful that which was prohibited
by statute. She contended
that any inference that she refused to pay was not as a result of an
inability to do so has no basis.
Her failure to pay was based on a
firm belief that she had no liability to pay. Fifth, the absence of a
Master’s certificate
was fatal to the application.
Applicant’s case
[65]
The applicant relies on the fact that the undisputed allegations must
be regarded as established facts.
It submitted that M[...] had
committed an act of insolvency by making a false statement to the
Sheriff in relation to whether or
not she had disposable property
sufficient to satisfy the judgment.  It contends that M[...]
committed an act of insolvency
and is insolvent. It listed the
following as properties where M[...] has an interest:
(a)     a
registered co-owner together with N[...] of the property situated at
ERF 2[…], K[...] K[...]
ROAD, T[...], PORT ELIZABETH, EASTERN
CAPE, held under title deed T[...] C[…], registered in the
King Williams Town Division.
This property is not subject to a bond.
Its estimated value is R2, 459,000.00, according to the Lightstone
Erf Valuation.
(b)
in a property she co-owned together with N[...] of a registered in
the Pretoria Division , which
they sold  in 2018 and would have
had a share in the purchase price of R780 000.00. It contended
that a title deed has
been lost with the document number VA2538/2018.
(c)     it
further stated that it has no further personal knowledge of what
assets M[...] might own.  It
is not privy to the financial
affairs of M[...] and relies on the information obtained by the
Sheriff and through investigation
into search works records.
[66]   In
dealing with M[...]’s liabilities the applicant stated:
“
46.2.1
I attach hereto as Annexure “ HTJ12” a WinDeed Report
dated 15 February 2021 which reflects that a Notarial Bond
held in
favour of Firstrand Bank Ltd under B[...] has been registered over
movable property owned by the Respondent.
46.2.2 I have no
further personal knowledge regarding the property over which the Bond
was registered and the amount in which the
Respondent is indebted.
46.2.3 The Respondent
is further indebted to the Applicant in the sum of R7,000,000.00,
together with interest accrued at the prime
interest rate, calculated
daily and compounded monthly from 7 May 2019 until the capital sum
and interest are paid in full.”
[67]
The applicant contends that M[...] is,  to the best of his
knowledge,  factually insolvent in
that her liabilities exceed
her assets.  It further contends that the sequestration of
M[...]’s estate will enable the
Trustee to investigate if there
is a reasonable prospect that an investigation under the Act may
result in the discovery of further
assets that will be available to
creditors. The Trustee will also be able to investigate the financial
position of M[...] and to
distribute available assets equitably among
creditors. The creditors will enjoy at least a not-negligible
dividend in an equal
distribution.
Applicant’s
legal submissions
[68]
Mr White made the following submissions: That, absent an answering
affidavit from M[...], the Court must
grant a final sequestration
order, because all the allegations that were put up by the applicant
must be treated as established
facts as they were not disputed by
M[...].  M[...] committed an act of insolvency as reflected on
the
nulla bona
return. A Master’s certificate is not
relevant when there is a provisional sequestration order and that the
court that granted
the provisional order would have accepted a bond
of security as sufficient.  The applicant need not allege
registration with
the National Credit Regulator because there is a
judgment that confirms his claim against M[...]. In any event, he
argued that
the provisional order of sequestration confirms the debt
and the inability of M[...] to pay the applicant. The applicant has
proved
that M[...] is insolvent and urged this court to grant a final
order.
[69]
Counsel submitted that the argument about the registration of the
applicant as a credit provider is a defence
to the legality of the
agreement that should have been raised in the action during 2018. It
is wrong to raise it because the claim
was confirmed in the judgment
by Revelas J by the Supreme Court of Appeal when it dismissed the
appeal and also confirmed in the
provisional order.  He further
submitted that raising the point of the registration will, in any
event, be barred by the fact
that it is raised more than three years
after the agreement was concluded.  He relied on the same
authorities raised in N[...]’s
case.
M[...]’s legal
submissions
[70]
Mr Steyn argued that there are no facts given by the applicant to
prove that M[...] is insolvent.  He
submitted that there was no
lawful demand made to M[...] since the warrant of execution was
unsigned and did not display the amount
demanded from M[...] and, for
that reason, M[...] did not commit an act of insolvency. He submitted
that the search works and the
LightStone valuations do not establish
the value of M[...]’s properties. The fact that the applicant
indicated that he had
no knowledge of M[...]’s assets and is
not privy to her financial affairs is sufficient reason to dismiss
the application.
He submitted that the reason for non–payment
of the debt has nothing to do with inability to pay but is about the
enforceability
of the claimed debt because the applicant has not
stated that it is registered with the National Credit Regulator as a
credit provider.
He submitted that the return was incomplete because
the sheriff failed to record therein the amount demanded from
M[...].
[71]
Relying on
De
Wet v Le Riche
[23]
, he submitted that if the return is defective or inadequate, it
should be remitted to the officer concerned for rectification,

amendment or amplification before a sequestration application is
initiated and a provisional order is procured. Sequestration
proceedings based on a defective or an inadequate return may prove an
abortive exercise.  He contended that the applicant failed
to
prove that an act of insolvency had been committed.
[72]
On the issue of actual insolvency he submitted that the applicant
failed to state the reasons
for its conclusion of insolvency and
relied in this regard on
Amber
Falcon
Debt Collectors (Pty) Ltd v Vos
[24]
.
He urged the court to take into account the fact that the sheriff
served the warrant almost a year before the application
was issued
and there is no indication that it was served again after the
respondent was refused leave to appeal. He relied in this
regard on
Mavromati
v Union Exploration Import (Pty) Ltd
[25]
.
Discussion
[73]
As I have found in N[...]’s case and for the reasons advanced
therein, the attack on the warrant of
execution has no merit.
The warrant attached to the applicant’s heads of argument bore
the names of both N[...] and
M[...]. I am satisfied that a copy
presented to court is sufficient proof that the original was signed
by the Registrar and therefore
the warrant was properly issued.
[74]
The point raised in relation to the
nulla bona
return not
being a valid demand has merit. If one has regard to the
nulla
bona
returns filed by the sheriff in respect of M[...] and
N[...], it leads one to an inescapable conclusion, namely, that it
was a
cut and paste job.  There is an omission of the amount and
the reference to the non–existent section in both. The wording

employed in both returns is similar.  Although M[...], too, has
not advanced evidence challenging the
nulla bona
return,on the
face of it, it is impeachable for the same reasons I advanced in
N[...]’s case.
[75]     A
nulla bona
return changes the status of a debtor . Most
importantly, its natural consequence is that a debtor loses control
over his or her
property. Section 25 of the Constitution provides:
“
No one may be deprived of property except in terms of law
of general application, and no law may permit arbitrary deprivation
of
property”.
The effect of enforcing an invalid
nulla
bona
return would, in my view, not be in accordance with law and
would lead to arbitrary deprivation of M[...]’s property. In
light of the view I take in relation to the
nulla bona
return,
it is unnecessary, to deal with the service of the warrant after
N[...] and M[...] were refused leave to appeal to the
Supreme Court
of Appeal.
[76]     I
accordingly find that the applicant failed to prove that M[...]
committed an act of insolvency, as envisaged
in section 8 (b) of the
Act.
Is M[...]’s
estate insolvent?
[77]
The applicant has stated at paragraph 43 that:
“
I
have been informed that
a Search
Works Report dated 11 February 2921 reflected that the Respondent is
the registered co – owner, together with N[...]
A[...] D[...]
of the property situated at ERF 2[…], K[...] K[...] ROAD,
T[...], PORT ELIZABETH, EASTERN CAPE, held under
title deed
T[...]CTN, registered in the King Williams Town Division.
Furthermore, the aforementioned
property is not subject to a bond
.
A copy of the aforementioned Report is attached hereto as Annexure
“
HTJ9”. (my emphasis)
[78]
However, when the applicant lists the liabilities of M[...], there is
mention of a registered notarial bond
over movable property of M[...]
but, the deponent to the founding affidavit has no knowledge
regarding the property that is the
subject of the bond and the amount
in which M[...] is allegedly indebted.
[79]
In paragraph 4 of the founding affidavit the deponent stated : “
Where I rely on hearsay evidence, I identify the source of the
evidence and verily believe that it is true and correct.”
[80]
The allegations made in paragraph 43 do not identify who informed the
deponent of those allegations, who
conducted the investigations, who
obtained the search works and / or compiled the report. There is no
confirmatory affidavit either
from the sheriff if he conveyed that
information to the applicant or those who generated the reports. It
appears from Annexure
“
HTJ 9”
that the report was
generated by one Charl Boshoff and one Ganeefa Benjamin who is
recorded as a reference.
[81]
As indicated when I was dealing with N[...]’s case, these
valuations are not sworn appraisals. They
do not indicate how the
value of the T[...] property was arrived at, the qualifications of
the valuer and whether he or she is
independent. Furthermore, was the
property inspected or was there simply a desk top evaluation, what
amenities are there, what
is the age of the property, is the value
given based on an estimated forced sale, why are the accuracy scores
placed at 62% and
what weight must the court attach to those scores?
None of these factors is dealt with either in the report or in the
founding
affidavit.
[82]
What compounds the problem is that, on the one hand, in the same
affidavit it is stated that there is no
bond over the T[...]
property. But, on the other hand, there is an allegation of a
notarial bond registered over the movable property
of M[...] but the
details thereof and her indebtedness are unknown to the deponent. The
applicant has not taken the trouble of
getting this information and
supplement its papers in support of the final order that it seeks.
[83]
This court is left to speculate, for example, on how much in a rand,
will creditors receive as a dividend.
It is only through placing of
factual material before the court that an assessment of the advantage
to creditors can be made. I
find that the value of the property of
the T[...] property has not been determined. The liabilities of
M[...] have not been established.
The applicant simply made a bald
allegation that the final order of sequestration will be to the
advantage of creditors without
placing facts to support that
contention.
[84]     I
am not prepared to speculate about the advantage to creditors, given
the serious consequences of sequestration
proceedings.
The applicant failed to prove that the sequestration of M[...]’s
estate will be to the advantage
of creditors. I find that on this
ground too, the applicant failed to prove that M[...] is insolvent.
[85]
On the applicant’s failure to allege its registration with the
National Credit Regulator, I adopt
herein the same attitude I
expressed when dealing with N[...]’s application. I have not
been asked by means of a counter
– application in whatever form
to make a finding or issue an order in relation to that point.
[86]     I
accordingly find that the applicant failed to discharge the onus
resting on it, on all the grounds as
set out above.  It follows
that the provisional order of sequestration should be discharged and
the application itself be
dismissed with costs.
[87]
In the result, it is ordered in Case No: 2024 /2022 that:
87.1    The
application for the provisional sequestration of N[...] D[...]’s
estate is dismissed with costs.
[88] In the result, it is
ordered in Case No. 3119/2021, that:
88.1.   The
provisional sequestration Order granted on 22 August 2022 is
discharged.
88.2    The
application for the sequestration of M[...] D[...]’s estate is
dismissed with costs.
T.V. NORMAN
JUDGE OF THE HIGH
COURT
DATE OF HEARING
: 16 FEBRUARY 2023
DATE OF JUDGMENT : 07
MARCH 2023
APPEARANCES:
For
the APPLICANT:
ADV
WHITE
Instructed
by:
DE
WALL BOSHOP INC.
c/o
KAPLAN BLUMBERG ATTORNEYS
1
ST
FLOOR, BLOCK A
SOUTHERN
LIFE GARDENS
70
– 2
ND
AVENUE, NEWTON PARK
PORT
ELIZABETH
TEL:
041 363 6044/2405
FAX:
041 363 6046
Email:
teri-ann@kaplans.co.za
REF:
MAT17848/t radloff/bp
For
the RESPONDENT:
ADV
STEYN
Instructed
by :
RN
INCORPORATED ATTORNEYS
Email:
danielle@rninc.co.za
Tel:
087 354 3704
Fax:
086 670 0513
c/o
AUKETT ATTORNEYS
SUITE
4, 2
ND
FLOOR
50
ON 4
TH
AVENUE NEWTON PARK
PORT
ELIZABETH
TEL
082 377 2599
[1]
2007
(5) SA 450
(SCA) at 452 F-G.
[2]
(NCT /31877/2015/56(1)
[2018]
ZANCT 1.
[3]
Para
39 of the founding affidavit, indexed page 13.
[4]
Rodel
Financial Services Proprietary Limited v O’ Callaghan
(2016/23121) [2017] ZAGPJHC 467 (31 March 2017) at para 26.
[5]
1960
(3) SA 94
(O) at page 96.
[6]
Mars,
The
Law of Insolvency
, Tenth edition, page 151; 5.10.3.
[7]
1993 (4) SA 436
( C ) at 443.
[8]
1911
TPD 48at 50.
[9]
1937
CPD page 165.
[10]
Mars,
10
th
Ed page 153 para 5.10.4.
[11]
See
Hillhouse v Stott; Freban Investments v Itzki; Botha v Botha 1990
(4) SA 580 (WLD).
[12]
2017
(4) SA 161 (SCA).
[13]
Empire Gardens v
Sithole
2017 (4) SA (SCA) 161 at page 164 H.
[14]
2019
(1) SCA 403 (SCA) at 7; 18 – 21; 26; 28.
[15]
Department
of Transport and Others v Tasima (Pty) Ltd
2017 (2) SA 622
(CC) at
624.
[16]
Tenth
Edition, page 127 para 5.5.
[17]
Mars
page 127 para 5.4.
[18]
1977
(4) SA TPD 363.
[19]
1977 (4) SA TPD 361 at 363
[20]
1975
(1) SA 165 (T).
[21]
1995
(3) SA 123 (AD).
[22]
1952 (3) SA page 683 AD paras C-D.
[23]
2000
(3) SA 1118
( T) at 1123 C-D
[24]
2014
JDR 0118 (GNP) at page 8.
[25]
1947 (1) SA 604
(T) at 606 A.