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[2015] ZAGPPHC 250
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Plotz v Mass (59206/2013) [2015] ZAGPPHC 250 (2 April 2015)
IN
THE HIGH COURT OF SOUTH AFRICA
(GAUTENG
DIVISION, PRETORIA)
CASE NO: 59206/13
DATE: 2 FEBRUARY
2015
NOT REPORTABLE
NOT OF INTEREST
TO OTHER JUDGES
IN THE MATTER
BETWEEN:
SUZETTE
PLOTZ
......................................................................................................................
APPLICANT
AND
GEORGE MICHAEL
MASS
................................................................................................
RESPONDENT
JUDGMENT
KUBUSHI, J
[1] This is an
application for the provisional sequestration of the respondent. At
the time when the application was launched, the
respondent was
indebted to the applicant in the amount of R2 700 000. The debt
resulted from a divorce settlement made an order
of court on 16
February 2010.
[2] The original
amount in the divorce settlement was R9 500 000. After the
application was issued, an amount of R7100 000 was paid.
The said
amount is made up of R6 500 000 which was attached in the
respondent’s attorney’s trust account and R600 000
was
paid after the Settlement Agreement (details of which are stated
below) was signed.
[3] The applicant
originally approached the court on an urgent basis. After papers were
exchanged, the parties settled the matter
and entered into a
Settlement Agreement which was made an order of court as well.
[4] In terms of the
Settlement Agreement payment of the outstanding amount of R2 700 000
was deferred free of interest to the 30
April 2014. The respondent
also consented to a provisional sequestration order in the event that
payment as envisaged in the Settlement
Agreement is not made.
[6] Despite the
settlement reached, the amount remained unpaid. A writ of execution
in the amount of R2 967 304, 70 was issued to
satisfy the judgment
debt, but, the sheriff could only attach and remove assets to the
value of R19 100. There were not enough
assets to satisfy the
outstanding judgment debt.
[7] The matter was
as a result set down on the unopposed roll to obtain a provisional
sequestration order. The respondent filed
an answering affidavit
admitting that he has consented to the provisional sequestration
order but contended that he had a right
to put all the relevant facts
before court for the court to be able to exercise its discretion
whether or not a sequestration order
should be granted. His only
defence to the applicant’s claim was that the reason he had not
paid the judgment debt was because
he was in the process of securing
funds and required time within which to do so.
[8] In argument
before me, the respondent’s counsel, conceded the indebtedness
on behalf of the respondent but submitted that
the respondent did not
receive fully thought out advice in respect of this matter. Counsel,
however, stated that he had been instructed
to request a stand down
of the matter for six weeks within which to give the respondent time
to dispose of his Richards Bay property.
According to counsel, a
purchase agreement for the said property had already been signed with
a potential buyer who did not require
registration of a mortgage bond
over the property and as such guarantees in respect of the purchase
price could be provided within
the requested period of six weeks.
[9] On the facts of
the application itself, the contention by the respondent’s
counsel was that in the final analysis the
matter was within the
discretion of the court to determine whether or not to grant the
provisional sequestration order. His assertion
being that where there
is only one creditor the potential disadvantages are inherently fewer
and correspondently weaker and since
the relief sought concerns the
status of a person the court must still make a decision despite the
consent by the respondent. Consent
by the respondent in circumstances
of this case is a nullity because the court has to make a finding on
the facts before it. The
discretion of the court cannot be ousted by
the respondent’s consent to sequestration, so the argument
went.
[10] At the end of
the hearing I reserved judgment for six weeks, giving the respondent
an opportunity to provide the applicant
with the guarantees for the
judgment debt and/or to pay the outstanding judgment debt. On 11
March 2015 I was notified by the appellant’s
attorneys of
record that the respondent had to date thereof not received any
payment from the respondent and that the six week
period was to
expire during that week. The notice was e-mailed to the respondent’s
attorneys of record and no response has
been forthcoming.
[11]
On the facts of this case, in order for the applicant to succeed in
her claim, she must prove the following:
1
(a) That she has a
liquidated claim for not less than R100 against the respondent.
(b) That the
respondent has committed an act of insolvency and/or is insolvent.
(c) That there is
reason to believe that it would be in the advantage of all creditors
of the respondent if his estate is sequestrated.
(d) That the
application complies with the formal requirements mentioned in
s 9
(3),
9
(4) and
9
(4A) of the
Insolvency Act 24 of 1936
.
[12] From the facts
stated above in this judgment, it is common cause that the applicant
has complied with the above mentioned requirements
of the
Insolvency
Act. It
is not in dispute that at the time when the application was
launched, the applicant was a creditor in the amount of more than R9
500 000. The applicant is still a creditor of the respondent in the
amount of approximately R3 200 000 in terms of the judgment
and
outstanding warrant, which amount remains unpaid. The amount of R2
700 000 has increased due to interest calculation and costs.
[13] As regards
costs of suit, I am of the view that the respondent was vexatious in
opposing the application after he had consented
in the Settlement
Agreement for an order for provisional sequestration. This matter
comes back a long way. The respondent has been
given a chance to
settle this matter on many occasions and on each occasion he signed a
settlement agreement. None of the agreements
have been honoured. He
was given an opportunity by me as well. But, this did not assist.
Having given him an opportunity to pay
off the debt as he had asked
me to do, he showed no courtesy at all of informing me that he was
unable to do so.
[14] In the
circumstances, I make the following order:
(a) The draft order
marked with an “X” and initialled is made an order of
court.
E. M. KUBUSHI
JUDGE OF THE HIGH
COURT
APPEARANCES
HEARD
ON THE:
05
MARCH 2015
DATE
OF JUDGMENT:
02
APRIL 2015
APPLICANT'S
COUNSEL:
ADV.
SJJ VAN RENSBURG
APPLICANT'S
ATTORNEY:
TINTINCERS
INCORPORATED
RESPONDENT'S
COUNSEL :
ADV.
M HELBERG SC
RESPONDENT'S
ATTORNEY :
PJ
KLEYNHANS ATTORNEVS
1
See
s 10
(1) of the
Insolvency Act 24 of 1936