About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: North Gauteng High Court, Pretoria
SAFLII
>>
Databases
>>
South Africa: North Gauteng High Court, Pretoria
>>
2019
>>
[2019] ZAGPPHC 129
|
|
Firstrand Bank Limited v Pratt (19121/2017) [2019] ZAGPPHC 129 (16 April 2019)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
and
SAFLII
Policy
IN THE HIGH COURT OF SOUTH
AFRICA
GAUTENG DIVISION, PRETORIA
(1)
REPORTABLE: NO
(2)
OF INTEREST TO OTHERS JUDGES:
NO
(3)
REVISE D ·
Case Number: 19121/2017
16/4/2019
In
the matter between:
FIRSTRAND
BANK LIMITED
Applicant
and
ANNE
ELIZABETH MARY
PRATT
Respondent
(an
unmarried female born on 11 March 1960
With
identity number [….])
JUDGMENT
RANCHOD J
Introduction
[1]
In this matter the applicant (the bank), seeks the provisional
sequestration of the
estate of the respondent (Ms Pratt). The bank
alleges that Ms Pratt is indebted to it in an amount not less than
R43 811 507.99
in respect of a judgment debt which Ms Pratt has
failed or refused to pay. The amount includes interest and costs. Ms
Pratt also
has costs orders against her in other proceedings by the
bank totalling nearly R1 000 000.00. The bank alleges that it would
be
to the advantage of her creditors should Ms Pratt's estate be
sequestrated.
Background facts
[2]
In what follows is a brief background
leading up to the present application.
[3]
Ms Pratt conducted an employment
recruitment business through a South African company called Anne
Pratt & Associates (Pty) Ltd
('APA)'. Prior to December 2001 the
shareholding in APA was as follows:
3.1
70% of the shares were held by the Fast
Track Trust ("FT Trust') which was established in the Isle of
Man with the trustees
also established there.
3.2
30% of the shares were held by Ms Pratt.
[4]
During 2001 Ms Pratt informed the bank
that she wished to acquire the 70% of the shares held in APA by the
FT Trust, and she applied
for a loan to do so. The bank agreed to
lend her R25 000 000.00 to acquire the 70% interest.
[5]
To give effect to the agreement the bank and Ms Pratt concluded an
oral agreement
as well as a written 'Origin Capital Contributor
Agreement' and a written 'Origin Capital Contributor Schedule' on 6
December 2001.
Both of the written contracts were subsequently
amended by mutual agreement. The Origin Capital Contributor
Agreement, Origin Capital
Contributor Schedule, and all subsequent
written amendments thereto as well as the oral loan agreement are
collectively referred
to as 'the Agreements'.
[6]
The bank advanced the loan amount of R25 000 000.00 to Ms Pratt. The
capital amount
was repayable in one instalment after five years. It
appears that interest on the loan was payable at regular intervals.
Ms Pratt
paid a number of instalments but then stopped, disputing her
liability to the bank under the agreements.
[7]
In October 2003 Ms Pratt instituted action against the bank and
MCubed to declare
the agreements null and void on the ground that no
exchange control permission had been obtained for the agreements as
required
by the exchange control regulations. (The FT Trust had an
offshore investment in MCubed.)
[8]
The bank defended the action and
counterclaimed for the payment of the loan amount. The bank joined
Waterman's Chartered Accountants
(>NGA)
to the proceedings as a third party
on the basis that WCA had, at Ms Pratt's behest, valued the 70% of
the shares in APA at R25
million and if it were to be held that the
agreements were void for lack of fair value, WCA would be liable to
the bank on the
grounds of its misrepresentation.
[9]
The matter went on trial in January 2007
on separated issues that the parties agreed would be dispositive of
the merits of both
the claim and the counterclaim. Acting Justice
Mokgoatlheng (as he then was), found in favour of the bank. He held
that there was
indeed exchange control permission for the transaction
and that the agreements were valid. Ms Pratt appealed against the
decision
of Mokgoatlheng AJ, but it was dismissed by the Supreme
Court of Appeal (SCA) in 2008.
[10]
The substratum of Ms Pratt's defence to the counterclaim was
identical to that of her claim in
the action against the bank. Her
claim having failed, it ought to have been clear that her defence to
the counterclaim would similarly
fail. Nevertheless, she sought to
amend her plea to the counterclaim to include new defences based on
allegations of fraud on the
part of the bank. Her amendment was
allowed by Goodey AJ. The bank replicated to her amended plea that
the new matters were
res judicata.
The case proceeded to trial
on the
res judicata
issue in 2013 and Fabricius J of this
court found that the new defences raised by Ms Pratt were indeed
res
judicata.
Ms Pratt appealed to the SCA which again ruled in
favour of the bank in 2014. As a result, all that remained
outstanding for determination
was the quantum of the bank's claim.
[11]
The quantification of the counterclaim
was enrolled for trial in November 2015 before Fabricius J. The bank
called a witness, Mr.
Giger, who testified about the computation of
the bank's claim, taking into account the proceeds of the offshore
investment that
had been ceded to the bank as security in terms of
the agreements, totalling R20 437 758.37 and that had been credited
to Ms Pratt.
Ms Pratt did not testify. One 4 November 2015 Fabricius
J granted judgment in favour of the bank for R19 634 279.49
together
with interest from 19 June 2007 to date of payment (the
judgment debt). Taking interest and the
in
duplum
rule into account the
aggregate of the judgment debt, including interest, was R39 268
558.98 at the date of the judgment. In terms
of the
in
duplum
rule and the agreed interest
rate, interest will continue to accrue on this amount at the prime
rate calculated daily and compounded
monthly from date of judgment (4
November 2015). The bank says Ms Pratt has failed or refused pay any
portion of the judgment debt
which stood at R43 811 507.99 as at 14
December 2016.
[12]
Ms Pratt was also ordered to pay the
costs of her unsuccessful second appeal to the SCA which amounted to
R44 881.96. Although the
bank issued a letter of demand she has
failed or refused to pay any portion of the taxed costs. She was also
ordered to pay certain
other taxed costs of the bank totalling R900
757.48. The bank says those costs have also not been paid by Ms
Pratt.
[13]
In April 2016 Ms Pratt brought an urgent
application for a stay of execution of the order of Fabricius J (the
stay application)
pending the outcome of an action she intended to
launch to set aside the judgments and orders of Mokgoatlheng AJ and
Fabricius
J. On 30 June 2016 Tuchten J dismissed the stay application
with costs. Undaunted, Ms Pratt applied for leave to appeal but the
application was refused, again with costs. She did not apply for
leave to appeal to the SCA. Still in 2016, Ms Pratt launched action
proceedings (the fraud action) from this court against both the bank
and the South African Reserve Bank (the SARB) in which she
seeks to
set aside the judgments and orders of Fabricius J and Mokgoatlheng AJ
as intimated in the stay application. That action
is still pending.
[14]
On 14 July 2016, the bank's attorneys
sent a letter to Ms Pratt's attorneys demanding payment of the
judgment debt by Ms Pratt.
Despite granting her an extention of time
to do so, Ms Pratt failed to pay the judgment debt or any part
thereof.
[15]
Thereafter, for more than a year the
bank unsuccessfully attempted to execute against Ms Pratt's movable
assets. Ultimately the
bank launched the present application for the
provisional sequestration of Ms Pratt's estate.
[16]
The bank states that it made numerous
attempts to serve a warrant of execution on Ms Pratt personally but
was unable to do so. The
deponent to the founding affidavit mentions
at least nine steps the bank took to try and serve the warrant of
execution personally
on Ms Pratt but was unable to do so as she
either obstructed the Sheriff or evaded service entirely. It
concluded that having regard
to Ms Pratt's continued relocations and
that she has failed or neglected to pay or secure the bank's claim
the conclusion is inescapable
that she cannot pay her debts and that
she is deliberately evading service of the writ thereby frustrating
the bank's attempts
at completing the attachment of her movable
property. It therefore launched the present application for her
provisional sequestration
on the basis that she is factually
insolvent and it would be to the advantage of her creditors if the
application was granted.
[17]
In a sworn statement made on 17 May 2013
Ms Pratt had provided the bank with details of her assets and
liabilities and stated that
her assets, at a realistic value, were
worth only RS 896 911.00 and her liabilities were a loan of R18 869
375.00 from the Fast
Track Trust. (In the founding affidavit the bank
states that the liability is a loan 'to' the Fast Track Trust which
appears to
be incorrect as then it would constitute an asset in her
estate.) It is apparent that as at that date Ms Pratt's liabilities
far
exceeded her assets. Ms Pratt counters in her opposing affidavit
that these figures are outdated and are not relevant as far as
the
present application for sequestration is concerned. I will revert to
this aspect later on.
[18]
Ms Pratt had also stated that her
monthly remuneration from several sources in 2013 was R70 267.69 per
month. The bank avers that
Ms Pratt's lavish lifestyle indicates
otherwise. It has set out in detail in the founding affidavit a
number of businesses in which
Ms Pratt has interests and from which
she derives income. She is a director of several companies; a member
of certain close corporations;
beneficiary of a number of trusts
including off-shore trusts. Hence, says the bank, a provisional
sequestration order will be in
the best interests of Ms Pratt's
creditors as it would enable the trustee of her estate to investigate
her financial and business
affairs and fully and properly interrogate
her. The bank relies on sub-sections 8(a) and (b) as well as section
10 of the Insolvency
Act 24 Of 1936 (the Act).
[19]
Ms Pratt opposes the application on some
technical grounds and also on the basis that she is not factually
insolvent and that the
application is premature as her fraud action
against the bank and the SARB should first be concluded.
[20]
Insofar as the technical defences are
concerned Ms Pratt argued,
inter
alia,
that the application was not
served on her personally. It was also raised for the first time - in
any detail - in Ms Pratt's heads
of argument that her marital status,
date of birth and her identity number were not stated in the
application. However, at the
commencement of the hearing, her
counsel, Mr Hoffman, informed me that those defences were no longer
being pursued. The remaining
grounds upon which Ms Pratt opposes the
application may be summarised as follows:
20.1
The application is premature as the bank
has not fully excussed her assets;
20.2
The bank has failed to show that she is
factually insolvent; and
20.3
The judgment debt of R19 634 279.49
together with interest and costs granted in favour of the bank by
Fabricius J on 4 November
2015 was procured by the bank using
fraudulent means.
The
relevant legal provisions relating to provisional sequestration
orders
[21]
In terms of section 10
[1]
of the Act the court may grant a provisional sequestration order if
it is satisfied that
prima facie:
21.1
The applicant has established a claim
which entitles it, in terms of section 9(1) of the Act to apply for
the sequestration of the
debtor's estate
[2]
;
and
21.2
The debtor has committed an act of
insolvency or is factually insolvent; and
21.3
There is reason to believe that it would
be to the advantage of creditors of the debtor if his/her estate is
sequestrated (section
12 (1) of the Act).
[22]
The onus of satisfying the court of the
three requirements rests on the sequestrating creditor.
[23]
Where a debtor raises a factual dispute
the requirements for sequestration are established on a balance of
probabilities.
[24]
In the matter of
ABSA
Bank v Van Rhebokskloof (Pty) Ltd
1993
(4) SA 436
(C) at 443C-D the court stated the following:
'Even, however, where a debtor has
not committed an act of insolvency and it is incumbent on his unpaid
creditor seeking to sequestrate
the termer's estate to establish
actual insolvency on the requisite balance of probabilities, it is
not essential that in order
to discharge the onus resting on the
creditor if he is to achieve this purpose that he set out chapter and
verse (and indeed figures)
listing the assets (and their value) and
the liabilities (and their value) for he may establish the debtor's
insolvency inferentially.
There is no exhaustive list of facts from
which an inference of insolvency may be drawn, as for example an oral
admission of a
debt and failure to discharge it may, in appropriate
circumstances which are sufficiently set out, be enough to establish
insolvency
for the purpose of the
prima facie
case which the
creditor is required to initiallymake out. It is then for the debtor
to rebut this
prima facie
case and show that his assets have a
value exceeding the sum total of his liabilities. See
Mars: The
Law of Insolvency in South Africa,
8
th
ed at 108;
Mackay v Cahi
1962 (4) SA 193
(0) at 194F-H, 195C-E, 204F-H.'
Mr Louw SC, stated that the bank
relies on the judgment in
Webster
v Mitchell
[3]
with regard to
the requirements in an application for a temporary interdict in that,
as a provisional sequestration order was sought
the bank has
established a
prima
facie
case. The
bank of has several taxed bills of costs totalling about R900 000.00
which Ms Pratt has failed to pay.
[25]
The test where a provisional order is
being sought, as is the case here, is not whether the sequestrating
creditor has established
the requirements on a balance of
probabilities (i.e. the standard of proof to obtain a final order).
In this regard, the provisional
sequestration stage is designed to
afford the creditor a simple and speedy remedy for preserving the
debtor's estate and enforcing
its claim.
(Provincial
Building Society of South Africa v Dubois
1966
(3) SA 76
0N) at 80.)
[26]
Section 8
[4]
of the Act defines acts of insolvency. Section 8(a) provides that a
debtor commits an act of insolvency if he/she leaves the Republic
or
being out of the Republic remains absent therefrom, or departs from
his/her dwelling or otherwise absents himself/herself with
the intent
by so doing to evade or delay the payment of his/her debts.
[27]
Section 8(b) of the Act creates two
separate acts of insolvency, namely, firstly, where the debtor, upon
demand of the Sheriff,
fails to satisfy the judgment debt or to
indicate disposable property sufficient to satisfy it and, secondly,
where the Sheriff,
without presenting the writ to the debtor, fails
to find sufficient disposable property to satisfy the judgment debt
and states
this fact in his return.
[28]
In addition to an act of insolvency, the
creditor may also rely on the fact that the debtor's estate is
insolvent (i.e. that his/her
liabilities exceed his/her assets). If
the creditor relies on an act of insolvency and is unable to
establish that it was committed,
but it is quite clear that the
debtor is in fact insolvent, the court may grant the sequestration
order on the latter ground.
(Comer
Shop (Pty) Ltd v Moodley
1950 (4) SA
55
(T)) In this regard, proof of insolvency need not be direct. It is
sufficient if the creditor establishes facts from which the inference
of insolvency is fairly and properly deducible. See
ABSA
Bank v Rhebokskloof (supra).
[29]
In terms of the provisions of section
12(1)(c) of the Act, before the court will grant the sequestration
order, it must be satisfied
that there is reason to believe that it
would be to the advantage of creditors if the debtor's estate is
sequestrated. 'Creditors'
means all or at least the general body of
creditors.
(Lotzof v Raubenheimer
1959 (1) SA 90
(0) at 94.)
[30]
The question is whether a 'substantial
portion' of the creditors, determined according to the value of the
claims, will derive advantage
from sequestration.
(Fesi
v
ABSA
Bank
Ltd
2000 (1) SA 499
(C).)
[31]
For a sequestration to be to the
advantage of creditors it must 'yield at the least, a not negligible
dividend'.
(Trust Wholesalers and
Woollens (Pty) Ltd v Mackan
1954 (2)
SA 109
(N) at 111.)
[32]
It is not necessary to prove that the
debtor has any assets, provided it is shown either that the debtor is
in receipt of an income
of which portions are likely to become
available to creditors in terms of section 23(5) of the Act, (
Ressel
v Levin
1964 (1) SA 128
(C) or that
there is a reasonable prospect that the trustee, by invoking the
machinery of the Act, will reveal or recover assets
which will yield
a pecuniary benefit for creditors. (BP
Southern
Africa (Pty) Ltd v Furstenberg
1966
(1) SA 717
(0) at 720; and
Dunlop
Tyres (Pty) Ltd v Brewitt
1999 (2)
SA 580
(W) at 583.)
Is
the application premature?
[33]
Ms Pratt contends that the bank has not
fully excussed her assets. Hence the application for her provisional
sequestration is premature.
[34]
The bank lists a number of steps it says
it has taken to excuss Ms Pratt's movable assets and attempts made to
serve the writ personally
on her. On 17 November 2015 it caused a
warrant of execution to be issued to attach and execute upon the
movable assets of Ms Pratt
at Unit 4, Carrington Pointe in Sandown,
Sandton, which the bank believed to be Ms. Pratt's primary residence.
The Sheriff attempted
to serve the warrant on her and attach the
movable assets at Carrington Pointe but was unable to do so as she
refused the Sheriff
entry into the dwelling. The Sheriff recorded an
inventory of the movable property situated outdoors at Carrington
Pointe. However,
only a partial inventory was possible because Ms
Pratt prevented the Sheriff from completing the inventory inside the
house.
[35]
Thereafter, for more than a year the
bank attempted to secure personal service and execute on the judgment
granted by Fabricius
J in its favour. These attempts have been
deliberately frustrated because Ms Pratt has either obstructed the
Sheriff or evaded
service. It made numerous attempts i.e. on 24
August 2016; 14, 29 and 30 September 2016; 14, 18, 19, 22 and 23
November 2016; and
8 December 2016 to serve the writ on her
personally at various places (including at Court) but it was
unsuccessful. The bank says
Ms. Pratt has also continuously
relocated. Therefore, the inference is inescapable that she cannot
pay her debts and that she is
deliberately evading service of the
writ, thereby frustrating the bank's attempts at completing the
attachment of her movable property.
[36]
Carrington Executive Lodge CC (the CC)
(an entity different from Carrington Pointe) of which Ms Pratt is the
sole member, is the
registered owner of the Carrington Pointe
property. Ms Pratt filed an interpleader affidavit on behalf of the
CC in which she stated
under oath that all the movable property
attached by the Sheriff and that inside the house belong to the CC
and not to her personally.
The bank says based on this, it would
appear that Ms Pratt has no movable assets.
[37]
In light of these facts Ms Pratt's
contention that the application is premature because the bank should
first have excussed her
assets is without merit. There is an apparent
inconsistency in this argument. The facts alleged in the founding
affidavit by the
bank have simply been ignored by Ms Pratt or she has
failed to pertinently respond to them. In fact, she was invited by
the bank
to state her current financial position in her answering
affidavit which she has failed to do. She had every opportunity to
take
the court into her confidence to give any flesh to her bald
denial of factual insolvency but failed to do so. One cannot but draw
an adverse inference in this regard. Indeed, the inference is
inescapable that she is factually insolvent.
[38]
Ms Pratt's counsel submitted that the
facts in
Zadi v Body Corporate of
Outiniqua
2001 JDR 1096 (GNP) are
apposite to this application. In my view, the submission cannot be
sustained. The facts differ and counsel
conceded as much. There the
first respondent had applied for leave to sue Zadi by way of
substituted service, by publication in
certain newspapers. A rule
nisi was issued calling upon interested parties to show cause why
Zadi should not be sequestrated. The
rule nisi was later confirmed.
At a later stage Zadi discovered that his estate had been
sequestrated. When applying for rescission,
Zadi submitted that if
the judgment creditor had simply attached and sold his assets in
execution, its debt would have been paid.
Instead, argued Zadi, it
abused the court process by applying for his sequestration. The court
criticized the judgment creditor
in that there was nothing in the
papers to suggest that it had attempted to ascertain Zadi's
whereabouts and in fact misled the
court in this regard in the
application for substituted service. The court also criticized the
fact that the judgment creditor
had not made mention of its failure
to first attach and sell Zadi's assets in execution prior to apply
for his sequestration. The
court therefore in that case concluded
that the respondent 'never intended to serve the papers on the
applicant. No attempts appears
[sic]
to have been made to ensure that the
method of service for which leave was sought was effective.' I have
already set out the facts
regarding the attempts made by the bank to
ascertain Ms Pratt's whereabouts on certain occasions and the number
of attempts made
to execute the warrant of execution. She can hardly
now complain as she does that the bank has not excussed all of her
assets when
she is primarily the cause of its inability to do so.
[39]
Ms Pratt contends that the sequestration
application has been launched with an ulterior motive, i.e. to avoid
the consequences,
and to scupper the proper ventilation of the fraud
action against both the SARB and the bank, and both the criminal and
Public
Protector Investigations. The submission is misconceived. As
matters stand Ms Pratt owes taxed costs that were ordered by this
court and her fraud action will not (in the event that it is
successful) affect those orders and concomitant debts. She may, if
she is successful, get some compensation from the SARB or even the
bank, but that will have no bearing on the costs orders and
the main
judgment against her.
[40]
Ms Pratt complains that the bank
approbates and reprobates in that on the one hand it alleges that she
is a woman of substantial
means and on the other that she has no
assets. I do not think the complaint is warranted. As I understand
it, the bank says that
while she claimed - in 2013 - to have an
income of about R70 000.00 her lifestyle and expenditure is clearly
not consistent with
that alleged income. According to a statement
which she admits having provided to the bank in 2013 her liabilities
far exceeded
her assets. Despite stating that the bank cannot rely on
a statement that is more than four years old in an attempt to
evidence
her insolvency, she provides no information on what her
current position is. The information is peculiarly within her
knowledge
and by refusing to disclose it she is acting mala
fide.
The bank has excussed against as
much as it could of her assets. She gives the indication of being a
successful and wealthy business
woman. But that does not mean that
she is also able to satisfy her debt in the region of R45 million. I
have mentioned earlier
the number of trusts and other business
entities that Ms Pratt is involved in in various capacities. What it
shows is that she
is a businesswoman who does not earn most of her
income in her own name thus justifying an order to investigate her
financial affairs
in greater detail. (See
Meskin
&
Co
v Friedman
1948 (2) SA 555
0/v) at
559 and the authorities cited in para [32] above.) It would
accordingly be to the advantage of creditors if a provisional
sequestration order is granted.
[41]
In conclusion, I can do no better than
to echo the words of my learned brother Tuchten J in paragraph 64 of
his judgment dated 30
June 2016 in the Stay of Execution Application
where he said:
'[F]or the last thirteen years
[now almost sixteen years], Ms Pratt has had what I might call a
Rolls Royce ride through the highways
of the South African legal
system. After a multitude of hearings, FirstRand has won an order for
payment which is no longer subject
to any appeal'.
And yet she fails to pay what she
owes and instead launched the Fraud application which seems to be
nothing other than a red herring
designed to further frustrate the
bank in recovering what is-legitimately due to it. In my view the
bank has made out a proper
case for the provisional sequestration of
Ms Pratt.
[42]
I make the following order:
1.
The estate of Anne Elizabeth Mary Pratt,
an unmarried female born on 11 March 1960, with identity number [….]
is placed under
provisional sequestration in the hands of the Master
of the High Court;
2.
A
rule
nisi
is issued calling upon Anne
Elizabeth Mary Pratt, and any other interested parties, to show
cause, if any, to this Court at 10h00
on Tuesday 25 June 2019 as to
why:
2.1
the estate of Anne Elizabeth Mary Pratt
should not be finally sequestrated; and
2.2
the costs of this application, including
the costs of two counsel where so employed, should not be costs in
the administration of
the estate of the said Anne Elizabeth Mary
Pratt.
RANCHOD
J
JUDGE
OF THE HIGH COURT OF SOUTH AFRICA
For
the Applicant:
Adv.
PF Louw SC
Adv.
MA Chohan
Adv.
LG Kilmartin
Instructed
by:
Hogan
Lovells (SA) Inc;
Johannesburg.
For
the respondent:
Adv.
LM Hodes SC
Adv.
JM Hoffman
Instructed
by:
Ian
Levitt Attorneys Johannesburg.
[1]
'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 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.
'
[2]
Section 9(1) provides that where a creditor has a claim of not less
than R100 i.e. a liquidated claim against the debtor who
has
committed an act of insolvency, or is insolvent, the creditor may
petition the court for the sequestration of the estate
of the
debtor.
[3]
1948 (1) SA 1186
(WLD). The Headnote provides: 'In an application
for a temporary interdict , applicant' s right need not be shown by
a balance
of probabilities; it is sufficient if such right is
prima
facie
established, though open to some doubt. The proper manner
of approach is to take the facts as set out by the applicant
together
with any facts set out by the respondent which applicant
cannot dispute and to consider whether, having regard to the
inherent
probabilities, the applicant could on those facts obtain
final relief at a trial. The facts set up in contradiction by
respondent
should then be considered, and if serious doubt is thrown
upon the case of applicant he could not succeed.
In considering the harm involved in the grant or refusal of a
temporary interdict, where a clear right to relief is shown, the
Court acts on the balance of convenience. If, though there is
prejudice to the respondent, that prejudice is less than that of
the
applicant, the interdict will be granted, subject, if possible, to
conditions which will protect the respondent.'
[4]
'8 Acts of insolvency
A debtor
commits an act of insolvency-
(a)
if he leaves the Republic or being out of the Republic
remains absent therefrom, or departs from his dwelling or otherwise
absents
himself , with intent by so doing to evade or delay the
payment of his debts;
(b)
if a court has given a 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;