Meier v Meier (15781/2015) [2021] ZAGPPHC 456 (6 July 2021)

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[2021] ZAGPPHC 456
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Meier v Meier (15781/2015) [2021] ZAGPPHC 456 (6 July 2021)

IN THE HIGH COURT
OF SOUTH AFRICA
(GAUTENG
DIVISION, PRETORIA)
REPUBLIC OF SOUTH
AFRICA
Case Number:
15781/2015
REPORTABLE: NO
OF INTEREST TO
OTHER JUDGES: YES/NO
REVISED
DATE: 06
JULY 2021
In the matter
between:
CORNELIS WALDO
MEIER
Applicant
And
MARGO
MEIER
Respondent
In
re:
MARGO
MEIER
Plaintiff
And
CORNELIS WALDO
MEIER
Defendant
Case
number:
76643/2019
MARGO
MEIER
Applicant
And
CORNELIS WALDO
MEIER
Respondent
JANSE VAN
NIEUWENHUIZEN J
[1]
The parties, respectively referred to as Mr
and Mrs Meier, each launched an application against the other. On 9
February 2021, an
order was granted that the respective applications
be heard together.
[2]
In the matter under case number 15781/2015,
Mr Meier claims an order for the suspension of a warrant of execution
issued by Mrs Meier
and in the matter under case number 76643/2019
Mrs Meier claims for the provisional sequestration of Mr Meier’s
estate. The subject
matter of both applications is arrear
maintenance.
Background
[3]
The parties were previously married to each
other, which marriage was dissolved by an order of this court dated
23 May 2018.
[4]
In terms of the order the claims in respect
of maintenance and accrual were postponed to 29 October 2018. The
order further stipulated
that, pending the finalisation of the
aforesaid issues, the rule 43 order dated 31 March 2017 shall remain
in force and effect.
[5]
In terms of the rule 43 order of 31 March
2017, Mr Meier had to pay maintenance to Mrs Meier in an amount of R
42 500, 00.
[6]
The parties agreed to refer the outstanding
issues for arbitration. Advocate Pelser SC was appointed as
arbitrator and a pre-trial
meeting was held on 3 August 2018 before
Mr Pelser.
[7]
Prior to the pre-trial, the parties reached
an agreement in respect of the outstanding issues in dispute. In
terms of the agreement
the arrear maintenance payable by Mr Meier to
Mrs Meier was R 300 700, 00.
[8]
The arbitrator’s award was made on 14
December 2018. In terms of the maintenance award, Mr Meier had to pay
maintenance to Mrs Meier
in the amount of R 47 000, 00.
[9]
The maintenance payments had to commence on
1 January 2019.
[10]
In respect of arrear maintenance, the
arbitrator declared that the arrear maintenance on 15 October 2018
was an amount of R 300 700,
00 and on 14 December 2018 an amount
of R 335 700, 00.
[11]
Mr Meier was not satisfied with the
findings of the arbitrator and launched an application for the review
of the arbitration award.
[12]
On 26 August 2019 the Registrar issued a
warrant of execution against the assets of Mr Meier for an amount of
R 564 700, 00.
The affidavit in support of the request for a
warrant, calculated the arrear amount as follows:
i.
Outstanding maintenance as
per agreement
ii.
October 2018

R 300 700
ii.
November
2018
R   17 500
iii.
December
2018
R   17 500
iv.
January
2019
R   17 500
v.
February
2019
R   17 500
vi.
March
2019
R   32 500
v.
April
2019
R   32 500
vi.
May
2019
R   32 500
vii
June
2019
R   32 500
viii.
July
2019
R   32 500
ix.
August
2019
R   31 500
[13]
On 13 July 2020 the Maintenance Court
reduced the maintenance payable in terms of the rule 43(6) order from
R 42 500, 00 per
month to R 16 000, 00 per month.
STAY OF EXECUTION
/ SETTING ASIDE OF WARRANT OF EXECUTION
[14]
Mr Meier issued this application on or
about 2 July 2020, in terms of which he claims the following relief:
“
1.
That the execution proceedings against the Applicant based on the
warrant of execution dated 29 August
2019 issued under case number:
15781/15 be stayed and/or suspended pending the finalization of:
1.1
The pending review application of
the arbitration award of Q Pelser SC, dated 14 December 2018; and
1.2
The pending maintenance court
application in the Pretoria Magistrates’ Court under reference
number: 1022017MAI00831;
2.
That the warrant of execution under case number: 15781/15 be set
aside;
3.
That the Respondent be ordered to pay the costs of the application on
an attorney
and client scale, only in the event of opposition;”
Point in law
[15]
The consolidated applications were heard in
the opposed motion court on 20 April 2021.
[16]
Subsequent to the hearing and on 18 May
2021, the parties filed an “
Updated
Joint Practice Note”
and further
affidavits. The note followed upon maintenance proceedings that were
held on 14 May 2021. During the proceedings the
presiding Magistrate
mentioned that the arbitration proceedings before Mr Pelser was in
conflict with the provisions of the Arbitration
Act, 42 of 1965 (“the
Arbitration Act”) and as a result
void
ab initio
.
Section 2(a)
of the
Arbitration Act, prohibits
arbitration in respect of any matrimonial
cause or any matter incidental to any such cause.
[17]
The parties stated that they were unaware
of the aforesaid legal position when the matter was heard. The
parties had, however subsequently
considered the legal position and
are
ad idem
that
the matrimonial disputes between the parties could not have been
resolved through arbitration.
[18]
Having had regard to the express provisions
of
section 2(a)
of the
Arbitration Act and
the authorities, I
agree with the parties that the arbitration proceedings before Mr
Pelser are invalid. [See:
Taylor v
Kurtsag NO
2015 (1) SA 362
W at 394 to
395]
Discussion
[19]
The aforesaid finding disposes of the
relief claimed in paragraph 1.1 of Mr Meier’s application.
[20]
In respect of the relief claimed in
paragraph 1.2, the pending maintenance court application in the
Pretoria Magistrates’ Court
under reference number:
1022017MAI000831 referred to in this prayer, was finalised on 13 July
2020 and is no longer pending.
[21]
This leaves the relief claimed in prayer 2
for the setting aside of the warrant of execution. Mr Meier submitted
that the warrant
should be set aside because the
causa
underlying the issuing of the warrant of execution is in dispute. In
paragraph 8.22 of his founding affidavit, he substantiates the
aforesaid submission as follows:
“
8.22
It is again submitted that the dispute is definite, namely:
8.22.1
That the maintenance matter is still pending in the Magistrate’s
Court; and
8.22.2
That the review application is also pending.
8.22.3
The calculation done is not explained as pertaining to the alleged
amount due.”
[22]
As stated
supra
the first two “
disputes”
have fallen by the wayside and the only
question to be decided is the one relating to the amount that was due
when the warrant was
issued.
[23]
During the hearing of the matter, the
affidavit accompanying the request for a warrant of execution
referred to in paragraph [12]
supra
,
was made available upon request of the court. Counsel for Mr Meier,
Mr Davis confirmed the correctness of the amounts reflected
in the
affidavit filed by Mrs Meier.
[24]
In the result, there is no longer a dispute
in respect of the amount that was due when the warrant was issued and
the basis for the
setting aside of the warrant falls away.
[25]
This brings an end to Mr Meier’s
application.
SEQUESTRATION
[26]
Section 10 of the Insolvency Act, 24 of
1936 (the Act) provides for the provisional sequestration of the
estate of a debtor. The section
reads as follows:
“
If
the court to which a petition for the sequestration of the estate of
a debtor has been presented is of the opinion that prima facie â€”
(a)
the petitioning creditor has
established against the debtor a claim such as 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.
[27]
The arrear maintenance owed by Mr Meier to
Mrs Meier satisfies the requirement in section 9(1) that an
applicant must have a
liquidated claim against a respondent for not
less than R 100,00.
[28]
Insofar as an act of insolvency is
concerned, Mrs Meier relies on section 8(b) to wit:
“
(b)
if a court has given judgment against him and he fails, upon 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;”
[29]
An act of insolvency is therefore
established if the Sheriff issues a
nulla
bona
return consequent upon the service
of a warrant of execution on a debtor / respondent.
[30]
In casu
the
sheriff’s return of service reads as follows:
“
That
on 07 September 2019 at 07h37 at 4 A FENCHURCH STREET, MIDSTREAM
being the defendant’s residential address, payments of the
judgment
debt in the amount of R 564 700.00, my costs plus VAT was
demanded from CORNELIS WALDO MEIER wherewith to satisfy
this warrant.
CORNELIS WALDO MEIER declared that he has no money or disposable
movable property wherewith to satisfy the said warrant.
No disposable
moveable assets were pointed out to me, or could after a diligent
search and enquiry be found at the given address.
It is further
certified that Cornelis WALDO Meier was requested to declare whether
he owns any immovable property which is executable,
on which the
following reply was furnished. No Description of property.
…
THUS
MY RETURN IS ONE OF NULLA BONA SIGNED ON THE ORIGINAL DOCUMENT BY THE
DEBTOR.
PLEASE
NOTE MRS SUSAN NEL SAID EVERYTHING BELONGS TO HER …, THE DEFENDANT
HAS NOTHING TO ATTACH.”
[31]
Mr Du Preez, counsel for Mrs Meier
submitted that
ex facie
the
return, Mrs Meier has established a deed of insolvency as envisaged
in section 8(b) of the Act.
[32]
Mr Davis, however, does not agree that the
return satisfies the requirements of a
nulla
bona
return for purposes of
section 8(b).
[33]
Mr Davis, submits with reference to
Sithole
N.O. v Mahlangu (
A 5011/16) [2017]
ZAGPJHC 124 (18 May 2017) that the return is defective in that the
sheriff only attempted to attach “
disposal
property”
at the respondent’s
residential address whereas the applicant on her own version stated
that the respondent has other “
disposal
property”
namely “
numerous
shares in TJ Architects (Pty) Ltd”.
[34]
The facts in the
Sithole
matter; however, differ from the facts
in casu.
Mr
Sithole indicated to the deputy sheriff, when asked whether he had
disposal property with which to satisfy the writ, that he had
“
property elsewhere”
as
well as “
banking accounts”.
The
deputy sheriff did not attempt to execute the assets referred to by
Mr Sithole but issued a
nulla bona
because Mr Sithole could not indicate
any disposal property to satisfy the writ with at his residential
address.
[35]
In the present matter and upon being asked
by the sheriff whether he had any disposal property to satisfy the
warrant with, Mr Meier
answered “
that
he has no money or disposable movable property wherewith to satisfy
the said warrant”.
[36]
Van Oosten J in the
Sithole
matter accepted that such an answer
meets the requirement of an act of insolvency for purposes of section
8(b) of the Act. The learned
judge stated the following at paragraph
[22]:
“
The
return conveys that the deceased
[Mr
Sithole]
had no money or disposable
assets at the address but property elsewhere, as well as bank
accounts. In Wilken, relied upon in the court
a quo, Goldstein J,
having referred to an echoing the dicta in a number of decided cases
but declining to follow the counter judgment
of Thirion J in Nedbank
Ltd v Norton
1987 (3) SA 619
(N) 612 D-F, held that the execution
officer is merely required to ask the debtor to indicate sufficient
property to satisfy the
writ and that s 8(b) does not impose a duty
on the execution officer to enquire from the debtor what property he
has and where it
is situated. It is for the debtor, the learned judge
concluded to point out the property or indicate its whereabouts and
describe
it in order to demonstrate its sufficiency (Generally see
Mars The Law of Insolvency in South Africa 9 Ed para 4.3).”
[37]
In the premises and if Mr Meier had any
disposal property to satisfy the warrant with, it was incumbent on
him to inform the sheriff
of the whereabouts of the property and to
describe it in order to demonstrate its sufficiency.
[38]
This he did not do, and I am satisfied that
the
nulla bona
return
relied upon by the applicant satisfies the requirements of
section 8(b).
[39]
The next enquiry is whether there is
“
reason to believe”
that
it will be to the advantage of creditors if Mr Meier’s estate is
sequestrated.
[40]
In
Meskin
& Co v Friedman
1948 (2) SA 555
(W) at 558 – 559 Roper J stated:
“
Sections
10
and 12
of
the
Insolvency
Act 24 of 1936
, cast upon a petitioning creditor the onus of
showing, not merely that the debtor has committed an act of
insolvency or is insolvent,
but also that there is 'reason to
believe’ that sequestration will be to the advantage of creditors.
Under
s
10
, which sets out the
powers
of the Court to which the petition for sequestration is first
presented, it is only necessary that the Court shall be of the
opinion that prima facie there is such ‘reason to believe’. Under
s 12
, which deals with the position when the rule nisi comes up
for confirmation, the Court may make
a final
order of sequestration if it ‘is satisfied’ that there is such
reason to believe. The phrase ‘reason to believe',
used as it is in
both these sections, indicates that it is not necessary, either at
the first or at the final hearing, for the creditor
to induce in the
mind of the Court a positive view that sequestration will be to the
financial advantage of creditors. At the final
hearing, though
the Court must be ‘satisfied’, it is not to be satisfied that
sequestration will be to the advantage of
creditors, but only that
there is reason to believe that it will be so.”
[41]
Further Roper J
stated:
“
...
the
facts put before the court must satisfy it that there is a reasonable
prospect – not necessarily a likelihood, but a prospect
which is
not too remote – that some pecuniary will result to creditors. It
is not necessary to prove that the insolvent has any
assets. Even
if there are none at all, but there are reasons for thinking that as
a result of enquiry under the Act some may
be revealed or recovered
for the benefit of
creditors,
that is sufficient.
”
[42]
This was echoed in
Nedbank Ltd
v Groenewald
2013 JDR 0748 (GNP) and afterwards, this approach was also followed
by the Constitutional Court in
Stratford
and Others v Investec Bank Ltd and Others
2015 (3) SA 1 (CC).
[43]
In her founding affidavit, Mrs Meier stated
that the parties agreed during the arbitration hearing that Mr Meier
has the following
assets:
[43.1]
the value of the TJ Business Trust
R   950 000, 00;
[43.2]
Dumeier Investments
R
82 971, 00;
[43.3]
the value of Mr Meier’s interest
in a property, 14
Glenridge
R   380 477, 20;
[43.4]
the value of the Meier Family
Trust
(the alter ego of Mr Meier) in the
Company,
TJ Architect holdings (Pty) Ltd
R 5 986 092, 70.
[44]
Mrs Meier submitted that a curator would be
able to realise the aforesaid assets, which would in all probability
yield a substantial
dividend for creditors.
[45]
Although Mr Meier did not explicitly deny
the aforesaid exposé of his financial position, he does deny that
the sequestration of
his estate will be to the benefit of his
creditors.
[46]
In support of the aforesaid averment, Mr
Davis in his heads of argument, submitted that:
“
63.
At the outset, it is apposite to mention that
Mr
Meier
disputes that it will be to the
benefit of
Mrs Meier,
nor
the body of his creditors, should his estate be sequestrated for the
following reasons:
63.1
Mr Meier
is
currently employed by TJ Architects (Pty) Ltd as Director thereof;
63.2
Should
Mr Meier
be
sequestrated, he will be precluded from acting as a Director of the
aforesaid company in terms of the provisions of section 69(a),
(b)(i)
of the Companies Act, 71 of 2008 (as amended), which in turn, would
mean that
Mr Meier’s
income
will be drastically diminished.
63.3
In the event that
Mr Meier’s
estate
be sequestrated, it will undoubtedly diminish
Mr
Meier’s
ability to contribute towards
future maintenance in respect of
Mrs
Meier,
and more importantly
Mr
Meier’s
minor children.”
[47]
Having regard
to the assets in Mr Meier’s estate that were not seriously disputed
by him, I am satisfied that there is reason to
believe that it will
be to the advantage of creditors if his estate is provisionally
sequestrated.
[48]
Mr Meier is a qualified architect and
practices as such. It is not clear on the papers which portion of his
income is derived from
his position as a director of TJ Architects
(Pty) Ltd and/or from his profession as an architect. The fact
remains that Mr Meier
will be in a position to earn an income, even
if his estate is provisionally sequestrated.
[49]
Mr Davis, furthermore, submits that Mrs
Meier should avail herself of alternative remedies to collect the
outstanding amount of maintenance,
by either approaching the
Maintenance Court, instituting contempt proceedings or to execute
against Mr Meier’s known assets.
It does not appear from the
facts that these remedies had or will assist Mrs Meier’s in the
enforcement of the judgment obtained
by her in respect of arrear
maintenance.
[50]
Lastly, Mr Davis emphasised with reference
to case law that this court, even if all the other requirements for a
provisional sequestration
order have been met, still has a
discretion, which discretion must be exercised judicially and in
accordance with the facts of each
matter, to refuse the application.
[51]
In
FirstRand
Bank Limited v Evans
2011 (4) SA 597
KZD at 27 the court held that:
“…
[If]
the conditions prescribed for the grant
of a provisional order of sequestration are satisfied then, in the
absence of some special
circumstances, the Court should ordinarily
grant the order. It is for the Respondent to establish the special
circumstances that
warrants the exercise of the Court’s discretion
in his or her favour.”
[52]
Mr Meier submitted that the special
circumstances are:
[52.1] Mrs Meier has
instituted the application for some ulterior purpose, i.e. to enforce
payment of a claim for maintenance that
is genuinely disputed on
bona
fide
and reasonable grounds and not to benefit his creditors; and
[52.2] the
nulla
bona
return is older than six months.
[53]
Firstly, it became clear during the hearing
of the matter that the amount of arrears at the time warrant was
issued, is not in dispute.
[54]
Secondly and although the
nulla
bona
was older than six months, at the
time of the hearing of the matter, the arrear amount was still
outstanding. In the result, nothing
turns on the time period since
the
nulla bona
return
was issued.
[55]
In the premises, Mr Meier has failed to
convince me that “
special
circumstances”
mitigating against the
granting of a provisional sequestration exist.
[56]
Both parties have placed new facts before
court in the respective further affidavits filed by them. I do not
deem the facts relevant
for purposes of the granting of a provisional
sequestration application. The facts may become relevant when a final
order of sequestration
is considered.
Order
[57]
In the premises, I grant the following
order:
1.
The application under case number
15781/2015 is dismissed with costs.
2.
2.1
The application for the provisional
sequestration of the respondent’s estate under case number
76643/2019 is granted.
2.2
A rule
nisi
is
issued returnable on 8 October 2021 on which date the respondent
should furnish reasons why the order should not be made final.
2.3
Costs of the application to be costs
in the sequestration.
N. JANSE VAN
NIEUWENHUIZEN
JUDGE OF THE HIGH
COURT OF SOUTH AFRICA
GAUTENG DIVISION,
PRETORIA
DATE
HEARD PER COVID19 DIRECTIVES:
20 April 2021
(Virtual hearing.)
DATE
DELIVERED PER COVID19 DIRECTIVES:
6 July 2021
APPEARANCES
Counsel
for the Applicant
Advocate S.N. Davis
Instructed
by:
Innes R. Steenekamp Attorneys
Counsel
for the Respondent:
Advocate W.R. du Preez
Instructed
by:
Day Attorneys Incorporated