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[2024] ZAFSHC 117
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Nutrico SA (Pty) Ltd v Van Niekerk and Another (615/2024) [2024] ZAFSHC 117 (22 April 2024)
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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SAFLII
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IN
THE HIGH COURT OF SOUTH AFRICA
FREE
STATE DIVISION, BLOEMFONTEIN
Reportable: NO
Of
Interest to other Judges: NO
Circulate
to Magistrates: NO
case
no:
615/2024
In
the matter between:
NUTRICO
SA (PTY) LTD
Applicant
and
ANDRE
JOHAN VAN NIEKERK
1
st
Respondent
(Identity
number: 6[…]
Date
of birth: 2[…] April 1963
Married
to the 2
nd
Respondent,
Alinda
van Niekerk
Identity
number: 6[…]
Date
of birth: 1[…] November 1963)
ALINDA
VAN
NIEKERK
2
nd
Respondent
(Identity
number: 6[…]
Date
of birth: 1[…] November 1963
Married
to the 1
st
Respondent,
Identity
number: 6[…]
Date
of birth: 2[…] April 1963)
CORAM:
JP DAFFUE J
HEARD
ON:
11 APRIL 2024
REASONS
DELIVERED
ON
:
22 APRIL
2024
On
11 April 2024, I dismissed the application for provisional
sequestration in the unopposed motion court. I mentioned that my
reasons would follow in due course. These are the reasons:
[1]
The
application papers are in a complete mess. What was supposed to be a
relatively simple sequestration application emerged to
be a
catastrophe. Two founding affidavits, seeking contrary relief, were
filed. Numerous documents were duplicated and the bundle
of documents
consists of 121 pages.
[2]
The
index,
notice
of
set
down
and
notice
of
motion
refer
to
the
applicant
as Nutrico SA
(Pty) Ltd and the first and second respondents as Andre Johan van
Niekerk and Alinda van Niekerk respectively, married
in community of
property with each other.
[3]
In
the
notice of motion, the applicant
sought a
provisional sequestration
order against
the joint estate of the first and second respondents.
[4]
In
the
founding affidavit deposed to by Mr Martin Botha in his capacity as
managing director of Nutrico SA (Pty) Ltd, the applicant
sought,
contrary to what was expected, the sequestration of the Andre Johan
van Niekerk Family Trust
[1]
.
It
is not
necessary
to
refer to each and every allegation, but the deponent referred to the
Andre van Niekerk Family Trust, or the trust, about 25 times
in this
affidavit. Clearly, the applicant intended to use this affidavit in
order to sequestrate the Andre Van Niekerk Family
Trust.
But
that is not what it sought.
[5]
In
paragraph
9.8 of the aforesaid founding affidavit it is alleged that a
'separate application for sequestration has been brought
against the
joint estate of the
respondent
and his
spouse'.
[6]
This
founding
affidavit is dated 24 May 2022, the same day as the resolution taken
by the applicant's company to launch application proceedings
to
liquidate
(sic)
the
Andre
van
Niekerk
Family Trust
and to sequestrate Mr and Mrs Van Niekerk.
[7]
It
is
accepted
that
the
applicant
intended
to
bring
two
separate
applications
against
the
trust
and
Mr and Mrs Van Niekerk for the sequestration of the two separate
estates.
This
would
be the normal practice, but surely, it is not desirable to
sequestrate several debtors simultaneously in one sequestration
application.
[2]
[8]
The
aforesaid
affidavit of Mr Botha referred to confirmatory affidavits of Mr DH
Murray,
an
attorney
of
Bloemfontein,
and
Mrs
Wilma
van
der
Westhuizen,
an
employee
of Erasmus Incorporated Attorneys. None of these two affidavits were
attached to this affidavit.
[9]
The
nulla
bona
return
of service of the sheriff relied upon is in respect of the Andre van
Niekerk Family Trust
[3]
.
Furthermore,
the applicant also relied on an alleged act of insolvency under
s
8(9)
of the
Insolvency Act 24 of 1936
in order to sequestrate the
trust who according to the applicant is also insolvent. Severally
documents
pertaining
to Sandvet Pecans are attached to this affidavit which appear to be
totally irrelevant.
[10]
After struggling through the first 59 pages, I all of sudden came
across another affidavit deposed to by
the same Mr Martin Botha,
supposedly in order to support an application for the sequestration
of Mr and Mrs Van Niekerk.
[4]
This
affidavit is to a certain extent a carbon copy of the first
affidavit. In this case the applicant tried to make out a case
for
the sequestration of Mr and Mrs Van Niekerk. The affidavit is also
dated 24 May 2022, nearly two years ago. Attached thereto
is an
affidavit of Mrs Van der Westhuizen. I also found an affidavit by the
attorney, Mr Erasmus, which is not even
referred
to
in the second founding affidavit
[5]
.
Again,
the affidavit of Mr Murray relied upon, is missing. In my view, no
reliance could be placed on an affidavit which is nearly
two years
old without explaining what has occurred since then to the date of
the
issuing
of
the application.
[11]
It
is
surprising
to note the following from Mr Erasmus' affidavit. He alleged in
paragraph 3 that the 'basis for the
liquidation
application
is the non-fulfillment
(sic)
of
a
credit
agreement,
a true copy of which is attached hereto as
Annexure
LME 1.
'
I
underlined
the
wording. This is totally confusing. First of all, the applicant does
not even rely on the affidavit of Mr Erasmus, not to speak
of
annexure LME 1. Annexure LME 1
is
an
'application
for
credit account facility' by the Andre Van Niekerk Family Trust and
although it is largely illegible, there appears to be no
reference
whatsoever therein
to
either
Mr or Mrs Van Niekerk in their personal capacities
.
Insofar
as the applicant apparently relied on annexure LME 1 to prove the
residential address of Mr and
Mrs
Van
Niekerk,
the attorney has got it totally wrong. The customer's address
contained
paragraph
4
under
the
heading
'Legal
Proceedings'
[6]
is
a reference
to
the Andre van Niekerk Family Trust and most definitely not the
domicilium
address
and/or residential address of Mr Van Niekerk or Mrs Van Niekerk.
[12]
The sheriffs
return of service, alleging that he served the application on Mr and
Mrs Van Niekerk on 8 March 2024, is hopelessly
wrong. Neither Mr Van
Niekerk, nor Mrs Van Niekerk has ever chosen their
domicilium
address
according to any documents before me as S[…] N[…],
Willemrus Silo, Bultfontein as alleged. It is also highly
improbable
that the sheriff could not ascertain from neighbours, bearing in mind
the small town of Bultfontein, whether Mr and/or
Mrs Van Niekerk
reside at the alleged
domicilium
address as
mentioned in the return of service. The reliance on the so-called
domicilium
address of
the first and second respondents is frowned upon, bearing in mind the
allegation in paragraph 2 of the second affidavit
that Mr and Mrs Van
Niekerk reside at S[…] N[…], Willemrus Silo
,
Bultfontein
.
[13]
The
sheriff also noted in his return of service that the appearance date
of the application was 23 May 2024. Firstly, where he got
that date
from is uncertain and secondly, there is no indication that this has
been explained to either Mr Van Niekerk, or Mrs
Van Niekerk. The only
reference to a possible date of hearing of the application is the
reference to 11 April 2024, being the last
paragraph of the notice of
motion
[7]
.
[14]
The
applicant's attorney elected to make use of form 2(a), the usual long
form used in application procedure when no reliance is
placed on
urgency as in this case
.
[8]
Contrary
to sub-rule 6(5)(b)(iii) the applicant provided a
dies
induciae
of
5 days, whilst the sub-rule makes it clear that the normal
dies
induciae
is
10 days. I accept, however, that an applicant may rely on a shorter
period than 10 days in the case of urgency and when a rule
nisi
is
sought as in this case.
[15]
For all these
reasons, I was not prepared to grant a provisional order to
sequestrate the joint estate of Mr and Mrs Van Niekerk.
In the
circumstances I was also not prepared to grant leave to amend the
papers. The applicant is fully entitled to
l
aunch
a fresh application for sequestration.
JP
DAFFUE J
On
behalf of the Applicant:
Horn
& Van Rensburg Attorneys BLOEMFONTEIN
On
behalf of Respondents
:
No
appearance
[1]
Bundle,
pp 13
-
30.
[2]
See
Mars: The Law of lnsolvency in South Africa,
9
th
ed
at p 102 and authorities
relied
upon
.
[3]
Bundle,
p 34: annexure D.
[4]
Bundle,
p 60.
[5]
Bundle,
pp 110
-
112.
[6]
Bundle,
p 120.
[7]
Bund
le,
p
7
.
[8]
Se
e
Erasm
us
Sup
e
rior
Court Practice
,
vol
2 at DI- 62A.