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[2016] ZAGPPHC 7
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Stander v Van den Berg (60296/2013) [2016] ZAGPPHC 7 (21 January 2016)
SAFLII Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
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Policy
IN THE HIGH COURT OF SOUTH AFRICA
(GAUTENG DIVISION, PRETORIA)
Case No: 60296
/
2013
On: 21 January 2016
Before: The Honourable Justice Holland-Milter AJ.
In the matter between:
CHRJSTIAAN
STANDER Applicant
and
JAKOBUS VAN DEN BERG (
ID:…) Respondent
(Married out of community of property)
JUDGMENT
[l] This is an application by the applicant for the
sequestration of the respon- dent's estate. The application was
served inter
alia publishing the applica- tion in the Citizen
newspaper and Pretoria News newspaper in terms of a court order
granted on 28
May 2014. See p 77 and p 80.
[2] The matter was heard on 17 November 2015, and I
reserved judgment because I only received the matter the previous day
due to
the Judge who was allocated to hear the matter became ill on
the 16th.
[3] The basis for the application by the applicant is
that he avers that the re spondent is factually insolvent and
unable
to pay his debts. The applicant's claim against the respondent
is based on an settlement agreement between the parties made an order
by this court on 9 November 2012. See annexure "CS-2" on p
26. The amount due to the applicant by the respondent in terms
of the
settlement agreement is R 937 000,00.
[4] The applicant now alleges that the respondent has
failed to make any pay ment in terms of the court order.
[5] The applicant attempted execution against the
respondent without any result. For purposes of this judgment I deem
it not necessary
to repeat the alleged attempts as averred in par 6
on p 13 to 19 of the founding affidavit.
[6] The respondent admits the settlement and subsequent
court order, but avers that he was then in the process of listing a
company,
the result of the listing would have resulted in him to
settle the judgment debt. See par 8 on p 100.
[7] It is therefore clear that the respondent admits
being indebted to the appli cant.
[8] The respondent however denies that any execution
attempts ever came to his notice as he does not know how and where
the applicant
obtained the various addresses where execution was
attempted. See par 8 on p 100.
[9] The court derives its jurisdiction in matters of
kind due to the provisions of
section 149 of the Insolvency Act,
Act 24 of 1936
as amended, hereafter referred to as the "act".
[10] The provisions of section 149 is the following:
"
(1) The court shall have jurisdiction under
this Act over every debtor and in regard to the estate of every
debtor who-
(a)
on the date on which a petition for the
acceptance of the surrender orfor the sequestration of his estate is
lodged with the registrar
of the court, is domiciled or owns or is
entitled to property situate within thejurisdiction of the court; or
(b)
At any time within twelve months immediately
preceding the lodging of the petition ordinarily resided or carried
business within
thejurisdiction of the court;...
[11] The question to answer is whether the respondent
falls within the wording of section 149 at the time of the lodging of
the
application by the applicant for the sequestration of the estate
of the respondent. The application was first date stamped by the
office of the Registrar of this court on 17 September 2013. Service
could not be effected in the normal way as the respondent was
no
longer at any of the then known addresses. Service by publication was
ordered as per court order on p 75 and 77, the last dated
28 May
2014.
[12] One of the provisions of the court order dated 19
November 2013 was, in par 1.3 thereof, that
"a complete copy
of the sequestration application, in cluding all annexures
thereto, be scanned and dispatched via e-mail
to the respondent 's
e-mail address
From the contents of p 82 can be
accepted that the application was e-mailed to the respondent on 18
August 2014. The respondent
filed a notice of intention to defend on
19 August 2014, the reasonable inference that he received and
accepted such service. See
p 85.
[13] The 12 months referred to in section 149 of the Act
determining the juris- diction of the court in sequestration
proceedings
for the lodging of the peti tion can only be
calculated with reference to when the petition, now appli
cation, was served
on the respondent. In terms of the provisions of
The Petition Proceedings Replacement Act 35 of 1976 in section 1, the
only possible
meaning can be that any reference in any law to the
institution of application proceedings in any court by petition,
shall be construed
to be the Institution of such proceedings by
notice of motion in terms of the Rules. Rule 6(2) of the Uniform
Rules of Court requires
proper notice of such application to be
addressed to both the registrar and the other person in volved
to be proper service.
[13] If this service is accepted as the date of service
on the respondent, the cal culation of the 12 month period
required
in section 149 of the Act would have commenced on 18 August
2013 ( 12 months prior to the service by way of e-mail on 18 August
2014 ).
[14] The
Windeed
search annexed by the
applicant as annexure
"CSR-1"
on p 124 & 125, on
p 125 indicates a certain Robbertze W C to be the owner of the
property in Erasmuskloof during 2013. It is
therefore possible that
the respondent was no longer the owner of the said property during
2013, the 12 months preceding the service
of the application as set
out above. On this ground it is therefore not possible to find that
this court has jurisdiction to hear
the application.
[15] Section 149 however vests this court with
jurisdiction in those instances where the debtor was
carrying on
business
within the jurisdiction of the court at the date of the
lodging of the application or at any time within twelve months
preceding
the lodging of the application.
[16] Sufficient facts should be stated in the
application to show that the court has jurisdiction by the applicant.
The onus is
on the applicant to prove prima facie that the respondent
was ordinarily carrying on business within the court's jurisdiction.
Should the respondent challenge the prima facie evi dence
alleged by the applicant, the burden is then on the respondent to
prove the contrary. See
Mars, The Law of Insolvency in South
Africa, Juta
1988
on p 17.
[17] The respondent, although he avers to be unemployed,
also mentions that he, likewise when the settlement agreement was
entered
into, is busy with the listing of a company named
Decision
Limited.
See par 7 on p 99.
On p 101 in par 8.2 the respondent indicates that the
listing is still in progress and soon to be completed. The annexure
"B"
on p 105 refers to a company named
Decillion
Limited, to be renamed Ardor SA Limited.
[18] It is important to note that the settlement
agreement was signed on 8 November 2012. See copy of the agreement on
p 28-29.
The opposing affidavit was signed on 28 October 2014, almost
two years after the settlement agreement was signed.
[19] The only reasonable inference from the above is
that the respondent is on an ongoing basis busy with the listing of
the company
for almost two years.
[20] Section 149 of the Act vests a court with
jurisdiction inter alia where a debtor
is carrying on business
within the jurisdiction of the court within twelve months preceding
the lodging of the application.
It is not necessary that the
carrying on of the business was for the full extend of the twelve
months, it is enough if he has he
done so during such period. See
Mars,
supra on p 17.
[21] The above almost two years of involvement by the
respondent to list the company in my view can only be regarded to be
carrying on business
within the jurisdiction of this court.
The respondent is not casually involved in the listing but devoting
substantial time to this
activity, thereby vesting this court with
jurisdiction in terms of section 149 of the Act.
[22] In his e-mail dated 4 January 2013 ( annexure
"CS-15" on p 49 ), clearly states that he will be back in
Pretoria
soon still involved in the listing of the company. In my
view it is reasonable to infer that the respondent, although
"unemployed" ,
is occupied with the listing of the
company. This activity, on his own version, takes place within the
jurisdiction of this court.
He may be residing in Cape Town, but
nothing precludes him to be ordinarily carry ing on business in
Pretoria- as he on his
own accord will be back in Pretoria within a
week.
[23] In the
Windeed
search on p 55 the respondent
is listed as an
active director
of at least 10 listed
companies with registered addresses in Gauteng within the
jurisdiction of this court. The reasonable inference
to be drawn from
this is that the respondent was ordinarily carrying on business
within the jurisdiction of this court within the
twelve months
preceding the lodging, and service of the application on 18 August
2014.
[25] I am satisfied that the respondent's ongoing
involvement in the listing of the company is not a once of
involvement, similar
to "ordinary residence" in Phillips v
Commissioner of Child Welfare, Bellville 1956(2) SA 330 (C), but
something more
prolonged than a temporary carrying on of business.
[26] The next question to be answered is whether it will
be to the advantage of creditors should the estate of the respondent
be
sequestrated? 'Creditors' means all or at least the general body
of creditors. The applicant in the founding affidavit in par 7
listed
several other creditors of the respondent known to the applicant. It
is difficult for a creditor to obtain full knowledge
of the debtor's
financial affairs, but from the information listed it is clear that
the respondent indeed has other creditors.
[27] The respondent however chose not to be frank with
the court but chose to have the court believe that he is unemployed.
This
is with respect not true. The respondent on his own version is
ongoing involved in the listing of a company for an extended time
of
two years. He is actively involved in other companies but failed to
inform the court to what extend his involvement is. He merely
brushes
the allegations aside in the opposing affidavit but fails to annex
any prove of alleged deregistration of the involved
companies or that
the companies are dormant. He in one sentence in par 8.6 on p 102
merely denies any advantage to creditors. The
respondent, in view of
the proven allegations by the applicant, had to prove the contrary.
See
Mars, supra p 17
.
[28] I am satisfied that the facts placed before the
court is sufficient to have reason to believe that the sequestration
will benefit
the creditors, that some pecuniary benefit will result
to the creditors. See
Meskin & Company v Friedman
1948(2)
SA 555 (W) at 588;
Amod v Kahn
1947(1)SA 150 (N);
BP
Southern Africa (Pty) Ltd v Furstenburg
1966(1) SA 717 (0) on
720. Also see
Hockley's Law of Insolvency, 6th ed 31-33
.
[29] There has been compliance with the required
formalities as to service on the Master's Office and on The South
African Revenue
Service. See p 4. The necessary security was tendered
as per certificate on p 72.
[30] I am satisfied that the applicant has made out a
case for the relief sought in the notice of motion and the following
order
is made:
30.1.
The estate
of the Respondent is placed under provisional sequestration;
30.2.
The
respondent and any other party who wishes to avoid such 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 22 February 2016 at 10:00 or as soon thereafter
as the
matter may be heard.
30.3.
This order
be published in the Government Gazette; and Citizen
30.4.
That the
costs of the application be costs in the sequestration.
___________________________
HOLLAND-MÜTER AJ
___________________________
BY ORDER OF COURT
REGISTRAR
Date heard: 17 November 2015
Appearances:
Applicant's Counsel: Adv C Richard.
Respondent's Counsel: Adv C Spangenberg.