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[2021] ZAGPPHC 150
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Premier FMCG (Pty) Ltd v Van Zyl (4709/2021) [2021] ZAGPPHC 150 (12 March 2021)
IN
THE HIGH COURT OF SOUTH AFRICA
(GAUTENG DIVISION, PRETORIA)
REPUBLIC
OF SOUTH AFRICA
Case Number: 4709/2021
NOT REPORTABLE
In the matter between:
PREMIER FMCG (PTY)
LTD
Applicant
And
BARBARA VAN ZYL
Respondent
JUDGMENT
JANSE VAN
NIEUWENHUIZEN J
[1]
I heard this matter in the urgent
court last week and issued an order for the provisional sequestration
of the respondent’s
estate. I indicated that the reasons for
the order would follow. The reasons appear
infra
and due to the fact
that the matter is urgent a short summary of the facts and law will
suffice.
Reasons
[2]
The applicant prayed for the
provisional sequestration of the estate of the respondent on the
basis that the respondent is factually
insolvent.
[3]
In a separate application under case
number 4712/2021, the applicant also prayed for the provisional
liquidation of ABC Fire Projects
(Pty) Ltd (“ABC”), a
company of which the respondent is the sole director and shareholder,
on the basis that it is
factually insolvent.
Facts common cause
[4]
The respondent was appointed as a
senior credit controller by the applicant on or about 1 April 2002.
Specific customer accounts
were allocated to the respondent to
manage, which management included obtaining proof of payments
(remittances) made by the customers,
allocating each
payment/remittance to that customer’s account and ensuring that
agreed discounts, rebates, returns or other
credit transactions are
accurately recorded on each customer’s account.
[5]
Naturally, the credit-control duties
performed by the respondent played an important role in the
applicant’s business operations
and enabled the applicant to
have an accurate record of the liabilities of each of its customers
towards it.
[6]
The applicant alleges that the
respondent had, as a result of her position, become acquainted with
all the applicant’s internal
financial processes including the
applicant’s internal checks and balances.
[7]
One of the customer’s allocated
to the respondent was Farhaad Distributors (Pty) Ltd (“FD”),
which customer forms
the subject matter of the alleged theft
perpetrated by the respondent.
[8]
According to the applicant’s
accounting records, the account of FD seemed up to date. Some
suspicious behaviour of the respondent,
however, prompted the
applicant to appoint forensic investigators to investigate the
accounts managed by the respondent. The results
of the forensic
investigation were, as will appear more fully
infra
,
astounding.
[9]
In conducting the investigation, an
analysis of the bank accounts of the respondent and ABC for the
period 2017 to date were compiled.
[10]
The analysis revealed the following:
10.1
during the period 2017 to date, FD
made payments to ABC’s bank account referenced either by the
customer account number allocated
by the applicant to it or by the
name of Mr Aboo Baker, the proprietor and director of FD, in an
aggregate amount of R 74 137 004,
57;
10.2
the aforesaid amount was disbursed by
the respondent by
inter
alia
paying an
amount of R 39 899 654, 57, directly into her bank account,
which amount was disbursed by the respondent.
[11]
Notwithstanding the aforesaid
payments, the respondent filed a statement of affairs on 1 March 2021
in terms of which her total
assets amounted to only R 2 095 000, 00.
[12]
The financial statements of ABC
similarly reflected a dire picture. The 2019 financial statements
reflected total equity and liabilities
of R 301 519, 00 and a
nett profit of R 19 863. Sales for the year amounted to
only R 976 286, 00.
Points
in
limine
[13]
Prior to considering the merits of
the applicant’s application it is necessary to deal with the
points
in
limine
raised
by the respondent.
First point
in
limine
[14]
The respondent alleges that the
applicant’s notice of motion is defective because it does not
reflect a date for hearing if
the matter is opposed.
[15]
The point is ill-conceived. A mere
reading of the notice of motion makes short shrift of the point, to
wit:
“
TAKE
NOTICE FURTHER that
,
in the event that a notice of an intention on the part of the
respondent to oppose this application is received as aforesaid,
the
application will be made at
10h00
on
Tuesday
23 February 2021
or
as soon thereafter as counsel for the applicant may be heard.”
[16]
The point is dismissed.
Second point
in
limine
[17]
The respondent contends that a
supplementary affidavit filed by the applicant on 8 February 2021,
should be disregarded because
no basis or exceptional circumstances
for the filing of the supplementary affidavit exists.
[18]
It is trite that an applicant who
wishes to file further affidavits may only do so with the permission
of the court. The supplementary
affidavit contains facts that came to
the knowledge of the applicant subsequent to the filing of the
founding affidavit.
[19]
I am of the view that the facts
contained in the supplementary affidavit do not take the matter any
further. The respondent has,
however, responded to the contents of
the supplementary affidavit in her answering affidavit and as a
result did not suffer any
prejudice by the filing thereof.
[20]
In the exercise of my discretion, the
supplementary affidavit is admitted into evidence.
Third point
in
limine
[21]
The respondent alleges that the
applicant’s claim underlying the application is one for damages
and as such does not fall
within the definition of a “
liquidated
claim”
as
envisaged in section 9 of the Insolvency Act, 24 of 1936 (“the
Act”).
[22]
The point pertains to the merits of
the application and will be dealt with
infra
.
Fourth point
in
limine
[23]
The respondent contends that the
allegations in the supplementary affidavit dispel any notion that she
is a debtor of the applicant.
[24]
The point, once again, pertains to
the merits of the matter and will be dealt with
infra
.
Applicant’s case
[25]
The applicant reconstructed the
account of FD and established that an amount of R 124 941 177,
90 is outstanding
on the account. From the aforesaid facts, the
applicant contends that the respondent clearly misappropriated the
money paid by
FD to the benefit of the applicant into ABC’s
account.
Respondent’s
case
[26]
The respondent explained that FD made
payments to ABC for services rendered. In support of the aforesaid,
the respondent attached
four invoices to her answering affidavit
issued by ABC to FD in respect of the services rendered. The toral
amount of the invoices
is approximately R 45 000, 00.
[27]
Having regard to the amount paid by
FD to ABC, the explanation is untenable, to say the least.
Legal principles and
discussion
[28]
The respondent does not dispute that
the applicant has complied with all the formal requirements
pertaining to the application for
sequestration. The issues in
dispute are whether the applicant has a claim against the respondent
and if so, whether the claim
is liquidated.
[29]
Section 9
of the
Insolvency Act,
provides
that a creditor with a liquidated claim of R 100, 00
that has accrued but is not yet due, may, if it alleges that a debtor
is in fact insolvent, launch an application for the sequestration of
the debtor’s estate.
[30]
Section 10 of the Act provides for a
provisional sequestration order with a return date and section 12
for the issuing of a
final sequestration order on the return date.
[31]
At this stage the applicant prays for
a provisional sequestration order and needs to establish on a
prima
facie
basis that it
is entitled to a final order for sequestration. [See:
Kalil
v Decotex (Pty) Ltd & Another
1988
(1) SA 942
A]
[32]
The applicant’s claim against
the respondent is based on a debt arising from theft committed by the
respondent. The claim
is well recognised in our law as a valid claim
for purposes of the sequestration of a debtor’s estate. [See:
VBS Mutual Bank (in
liquidation) v Madzonga
(25057/2018)[2019]
ZAGPJHC 273 (23 August 2019)]. The applicant’s claim is in the
result a liquid claim, that has accrued
but is not yet due.
[33]
Insofar as the issue of
locus
standi
is
concerned, the respondent does not deny that she received R
39 899 654, 57 in her bank account. She does not deny that
the amount was paid by her from ABC’s bank account into her
personal bank account.
[34]
The respondent does not deny that the
payments in the aggravate of R 74 million paid by FD into ABC’s
bank account was referenced
by the customer account number allocated
by the applicant to FD or by the name Aboo Baker, the director and
proprietor of FD.
[35]
The respondent did not provide any
facts to dispel the applicant’s allegation that FD, after a
reconstruction of its account,
owes the applicant R 129 million.
[36]
In view of the aforesaid facts, the
respondent contends that FD still owes the outstanding balance to the
applicant. FD is, therefore,
the actual debtor and not the
respondent. Accordingly, the applicant does not have a claim against
the respondent and lacks the
necessary
locus
standi
to launch
this application.
[37]
The fact that the applicant might
have a claim against FD, does not disentitle it to apply for the
sequestration of the respondent’s
estate.
[38]
Once the applicant has established
prima facie
that it would be entitled to a final
order of sequestration of the respondent’s estate, the
applicant is entitled to a provisional
sequestration order. In the
result, the applicant has the necessary
locus
standi
to apply for
the provisional sequestration of the respondent.
[39]
I was satisfied that it had and the
order for the provisional sequestration of the respondent’s
estate was issued.
[40]
N. JANSE VAN
NIEUWENHUIZEN
JUDGE OF THE HIGH
COURT OF SOUTH AFRICA
GAUTENG DIVISION,
PRETORIA
DATE
HEARD PER COVID19 DIRECTIVES:
3 March 2021
(Virtual hearing.)
DATE
DELIVERED PER COVID19 DIRECTIVES:
12
March 2021
APPEARANCES
Counsel
for the Applicant:
Advocate N.G.D. Maritz SC and
Advocate
P. Lourens
Instructed
by:
Adams and Adams Attorneys
Counsel
for the Respondent:
Advocate A.J. Swanepoel
Instructed
by:
Jay Inc.