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 615
|
|
Wild & Marr (Pty) Limited v Yusuf (27815/2018) [2019] ZAGPPHC 615 (20 May 2019)
REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH
AFRICA
GAUTENG LOCAL DIVISION,
JOHANNESBURG
(1)
REPORTABLE:
YES
/NO
(2)
OF
INTEREST TO OTHER JUDGES:
YES
/NO
CASE NO: 27815/2018
20/5/2019
In
the matter between
WILD
& MARR (PTY)
LIMITED
APPLICANT
and
IBRAHIM SILDSKY
YUSUF
RESPONDENT
JUDGMENT
SUTHERLAND
J:
[1]
The applicant seeks the sequestration of
the respondent. A case for insolvency is made out. The sole
controversy for decision is
whether an advantage to creditors has
been shown.
[2]
The onus is on the applicant to
establish that proposition. What is stated about the respondent's
assets is very little. What the
applicant presents is a companies'
registry search report which reflects that the respondent has an
interest of one or another
kind in several companies. What the
financial health of these companies might be is not known to the
applicant. 18 companies are
mentioned. 6 are recorded as being in
final deregistration.
[3]
What does the respondent declare? He
says he is a businessman. He says is that 6 of the companies are
dormant. 11 of the companies
are by inference, in business. He claims
their only value is derived from his personal services. He takes
refuge in arguing that
no allegation is made of secreted assets.
Nonetheless, the participation of the respondent in some form of
economic activity, utilising
several corporate guises points towards
the possession of means, rather than the contrary.
[4]
True enough, the applicant is unable to
allege what immediate financial benefit might be derived from a
sequestration. The applicant
cites
section 19(c)
of the
Insolvency
Act 24 of 1936
:
" If the court is
of the opinion that
prima facie
-
(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."
[5]
The test for the application of this
provision was addressed in
Stratford
&
Others
v Investec Bank Ltd
&
Others
2015 (3) SA 1
(CC)
at [43] - [45]:
"[43] In terms of the
Insolvency Act, a
court may grant a sequestration order, either
provisionally or finally, if 'there is reason to believe that it will
be to the advantage
of creditors of the debtor if his estate is
sequestrated'. It is the petitioner who bears the onus of
demonstrating that there
is reason to believe that this is so. In
Friedman
the court held:
'(T)he facts put before the Court
must satisfy it that there is a reasonable A prospect - not
necessarily a likelihood, but a prospect
which is not too remote -
that some pecuniary benefit 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 [Insolvency]
Act some may be revealed or
recovered for the benefit of creditors, that is sufficient.'
[44]
The meaning of the term 'advantage' is
broad and should not be rigidified. This includes the nebulous
'not-negligible' pecuniary
benefit on which the appellants rely. To
my mind, specifying the cents in the rand or 'not-negligible' benefit
in the context of
a hostile sequestration where there could be many
creditors is unhelpful. Meskin et al state that-
'the relevant reason to believe
exists where, after making allowance for the anticipated costs of
sequestration, there is a reasonable
prospect of an actual payment
being made to each creditor who proves a claim, however small such
payment may be, unless some other
means of dealing with the debtor's
predicament is likely to yield a larger such payment. Postulating a
test which is predicated
only on the quantum of the pecuniary benefit
that may be demonstrated may lead to an anomalous situation that a
debtor in possession
of a substantial estate but with extensive
liabilities may be rendered immune from sequestration due to an
inability to demonstrate
that a not negligible dividend may
result from the grant of an order.'
[45]
The correct approach in evaluating
advantage to creditors is for a court to exercise its discretion
guided by the dicta outlined
in Friedman. For example, it is up to a
court to assess whether the sequestration will result in some payment
to the creditors
as a body; that there is a substantial estate from
which the creditors cannot get payment, except through sequestration;
or that
some pecuniary benefit will redound to the creditors."
[6]
In my view there is sufficient material
placed before the court to warrant a provisional order. A provisional
order will facilitate
an investigation of the entities identified and
any other assets possessed by the respondent.
The
Order
1.
The estate of the respondent is placed
under provisional sequestration.
2.
The respondent and any other party who
wishes to avoid such an order being made final, are called upon to
advance the reasons, if
any, why the court should not grant a final
order of sequestration of the said estate on the 27th day of June
2019 at 10:00 or
as soon thereafter as the matter may be heard.
3.
A copy of this order forthwith be
served:
3.1
on the respondent personally;
3.2
on the employees of the respondent, if
any;
3.3
on all trade unions of which the
employees of the respondent are members, if any;
3.4
on the Master; and
3.5
on the South African Revenue Service.
4.
The costs of this application are costs
in the sequestration of the respondent's estate.
ROLAND
SUTHERLAND
Judge
of the High Court
Gauteng
Local Division,
Johannesburg
Date
of Hearing: 13 May 2019
Date
of Judgment: 20 May 2019
For
the Applicant: Adv L Hollander
Instructed
by Snaid & Edworthy
For
the Respondent: Adv D Block
Instructed
by Howard Woolf Attorney