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[2018] ZAGPJHC 628
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Firstrand Bank Limited v Fourie (14892/15) [2018] ZAGPJHC 628 (16 November 2018)
SAFLII
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Certain
personal/private details of parties or witnesses have been
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IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBURG
CASE
NUMBER: 14892/15
In
the matter between:
FIRSTRAND
BANK LIMITED
Applicant
and
MARTHINUS
THEUNIS STEYN FOURIE
Respondent
(Identity
number: […])
(Address:
[…])
(Marital
Status: married out of community of property to Cristina
Susanna Fourie
Coram:
Lagrange
AJ
Heard
:
13 November 2018
Delivered
:
16 November 2018
JUDGMENT
LAGRANGE,
AJ
Introduction
[1]
Having heard both parties’ counsel, I am satisfied that in
terms of
s 8
and
9
of the
Insolvency Act 24 of 1936
the applicant has
made out a case for the provisional sequestration of the respondent’s
estate in that:
1.1 the respondent is a
debtor of the applicant in a substantial amount;
1.2 the respondent is
factually insolvent, and
1.3 there is reason to
believe the sequestration of the estate would be to the benefit of
creditors.
[2]
My brief reasons for the abovementioned findings are
inter alia
that:
2.1 There is no dispute
that the respondent is indebted to the applicant in an amount in
excess of R 11 million arising from a suretyship
agreement.
2.2 It is common cause
the respondent’s liabilities, not only to the applicant, far
exceed his assets.
2.3 The respondent has
been making payments in an effort to reduce his indebtedness to other
major creditors since this application
was launched as a result of
which those creditors might have been unduly preferred over the
applicant as creditor.
2.4 While the
sequestration of the respondent’s estate will result in costs
being incurred, the only feasible alternative
means of satisfying the
applicant’s claim, on the available information, by means of a
garnishee order on the respondent’s
salary would simply
compound the situation in terms of which one creditor would be
preferred over another when there is no apparent
basis for them being
treated as anything but concurrent creditors.
2.5 The true extent of
the realisable assets of the respondent and whether it should also
comprise payments previously made to other
creditors is best
determined by the appointment of a trustee.
2.6 Sequestration in the
context of rival claims on the respondents’ assets would be in
the best interest of creditors in
general even if the net dividend
payable from the free residue is likely to be small.
Order
The
estate of the respondent is placed under provisional sequestration.
A
rule nisi is issued calling upon all persons with a legitimate
interest to advance reasons, if any, on 16 January 2019 why the
estate of the respondent should not be placed under final
sequestration.
The
applicant is ordered to serve a copy of this order on the
respondent, on SARS and on any employee of the respondent (and trade
union which may represent them) and to furnish a copy to the Master
of the High Court.
The
applicant is ordered to publish this order once in the Government
Gazette and once in The Star newspaper.
The
costs of the application are to be costs in the administration of
the insolvent estate of the respondent.
_______________________
Lagrange
J
Judge
of the Labour Court of South Africa
Appearance
:
Applicant:
Adv J.E.Smit instructed by Edward Nathan Sonnebergs Inc.
Respondent:
Adv N. Graddidge instructed by JJ Viljoen Attorneys.