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
>>
2014
>>
[2014] ZAGPPHC 94
|
|
Amber Falcon Debt Collectors (Pty) Ltd v Lodewyk Vos (63764/2013) [2014] ZAGPPHC 94 (14 January 2014)
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
(NORTH GAUTENG,
PRETORIA)
CASE
NO: 63764/2013
DATE:
14 JANUARY 2014
In the matter
between:
AMBER FALCON DEBT
COLLECTORS (PTY) LTD
..................................
Applicant
And
DIEDERIK JOHANNES
LODEWYK VOS
...............................................
Respondent
IDENTITY NUMBER
6…………………….
JUDGMENT
MAKGOKA. J:
[1] The applicant
seeks compulsory sequestration of the respondent’s estate on
the ground that the latter has committed an
act of insolvency in
terms of s 8(e) of the Insolvency Act, 24 of 1936 (the Act). The
alternative ground is that the respondent
is in fact insolvent. The
respondent does not oppose the application.
[2] According to the
sheriff’s return of service the application was served on the
respondent’s wife, to whom he is
married out of community of
property. This being an application that affects the status of the
respondent, it has to be served
personally on the respondent. See
clause 15.14(1) of the Practice Manual of the North Gauteng High
Court, Revised edition (2012).
This is a procedural defect, which,
under normal circumstances, could be cured by postponement of the
matter for personal service
to be effected. However, in the light of
the conclusion I reach on the substantive issues of the application,
this is not an option.
[3] The core
business of the applicant is to collect outstanding book debts. The
applicant alleges that the respondent owes it R45
000 in terms of a
written acknowledgement of debt. The claim is said to have been ceded
to the applicant by a firm of attorneys
prior to the acknowledgment
of debt being signed by the respondent.
[4] In turn, the
origin of the attorneys’ claim is said to have arisen from
their rendering of services to the respondent
during August 2010, for
the winding up of the respondent’s close corporation, for which
the respondent had allegedly agreed
to pay R45 000 in respect of fees
and disbursements.
[5] The respondent
signed an acknowledgement of debt on 20 March 2013 in terms of which
he undertook to pay off the amount in monthly
instalments of R7 500.
It is alleged that the respondent has failed to make any payments in
terms of the acknowledgment of debt,
which entitles the applicant to
demand the whole amount.
[6] The thrust of
the application is contained in paragraphs 18 and 19 of the founding
affidavit, which read:
‘18 I
respectfully submit that the respondent, by signing the
acknowledgement of debt, committed an act of insolvency in terms
of
the provisions of
sections 8(e)
of the
Insolvency Act in
that he made an arrangement with a creditor for
releasing him from his debts.
19 Apart from having
committed an act of insolvency, I also submit that it is clear from
the above circumstances that the respondent
is insolvent and ought to
be sequestrated. Best proof of solvency is payment and payment is not
forthcoming’.
[7] I deal with the
two grounds, in turn, starting with the alleged act of insolvency.
Section 8(e) of the Act provides that a debtor
commits an act in
insolvency if he makes or offers to make any arrangement with any of
his creditors or releasing him wholly or
partially from his debts.
The respondent has committed none of the mischiefs sought to be
addressed in s 8(e). He has neither made
nor offered to make, an
arrangement to be released from his debt. On the contrary, by signing
an acknowledgment, he has committed
himself to pay the alleged debt
of R45 000 in full, albeit in instalments. It is therefore quite
clear that the applicant’s
reliance on s 8(e) is misplaced.
[8] Turning now to
factual insolvency, it is not sufficient for the applicant to simply
state that the respondent is insolvent without
stating the reasons
therefor (Corner Shop (Pty) Ltd v Moodley
1950 (4) SA 55
(T). In
other words, a bare allegation of insolvency is insufficient:
insolvency should be properly proved to the satisfaction
of the court
with the aid of reliable information (Uys v Du Plessis) (Ferreira
Intervening)
2001 (3) SA 250(C).
In the present application, there is
not even an attempt to state the reasons.
[9] In the
circumstances the application has to fail, on both grounds.
In the result the
following order is made:
The application for
the compulsory sequestration of the respondent’s estate is
refused.
TM MAKGOKA
JUDGE OF THE HIGH
COURT