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[2014] ZAGPPHC 60
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Standard Bank of South Africa Limited v Janse Van Rensburg (35444/11) [2014] ZAGPPHC 60 (14 February 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 NORTH GAUTENG HIGH COURT OF PRETORIA
(REPUBLIC
OF SOUTH AFRICA)
Case
Number: 35444/11
DATE:
14/2/2014
In the
matter between:
STANDARD
BANK OF SOUTH AFRICA
LIMITED
...............................................
Applicant
and
ANLIE
JANSE VAN
RENSBURG
..........................................................................
Respondent
JUDGMENT
DE
KLERK AJ:
[1]
This is an application for the provisional sequestration of the
Respondent’s estate based on the grounds that the Respondent
committed acts of insolvency in terms of Section 8 (a) and (b) of the
Insolvency Act 24 of 1956, as well as her factual insolvency.
[2]
The Respondent opposed the application based on the grounds that she
is not insolvent, that she did not commit any acts of insolvency
and
that her sequestration would not be to the advantage of creditors.
[3]
The Respondent further stated that the estate of her husband, to whom
she is married out of community of property, was sequestrated
on 22
October 2008 and that her assets vest in terms of the provisions of
Section 21 (1) of the Insolvency Act in the trustees
of her husband’s
Insolvent estate and that the applicant is therefore not entitled to
proceed against her for the relief
sought.
The
common cause facts are:
[4]
On 1 November 2011 the Applicant obtained judgment against the
Respondent for payment of the amount of R613 326,88 plus interest
at
a rate of 14,85% from 12 May 2011 as well as costs.
[5]
The said debt is in respect of monies lent and advanced for the
purchase and improvement of an immovable property, situated
at No.
2[…] D[…] E[…] street, S[…], Randburg.
[6]
The Respondent and her husband, were co-owners in equal shares of the
said immovable property.
[7]
The estate of the Respondent’s husband has been finally
sequestrated on the 22
nd
of October 2008. Consequently the Respondent’s assets also vest
in the Trustee of her husband’s estate.
[8]
The Respondent launched an application for rescission of the said
judgment which application was dismissed.
[9]
On 31 January 2013, the Respondent’s moveable property to the
value of R23 950 was at the instance of the Applicant attached
by the
sheriff.
[10]
The Respondent’s 50% share in the said immovable property was
accordingly attached by the sheriff.
[11]
The disputes are whether:
1.
The
Respondent committed an act of insolvency.
2.
The
Respondent is factually insolvent.
3.
The
Respondent’s sequestration will be to the advantage of
creditors.
[12]
Section 21 (
׀
)
of the Insolvency Act, constitutes a defence.
Legal
Principles:
[13]
Sections 8 (a) and (b) of the Insolvency Act reads as follows:
“
8
Acts of Insolvency
A
debtor commits an act of Insolvency-
a)
If
he departs from his dwelling or otherwise absents himself, with
intent by so doing to evade or delay the payment of his debts;
b)
if
a court has given judgment against him and he fails, upon the demand
of the officer whose duty it is to execute that judgment,
to satisfy
it or to indicate to that officer disposable property sufficient to
satisfy it, or if it appears form the return made
by that officer
that he has not found sufficient disposable property to satisfy the
judgment.”
[14]
Section 21 (1) of the Insolvency Act, states that:
“
The
additional effect of the sequestration of the separate estate of one
of two spouses who are not living apart under a judicial
order of
separation shall be to vest in the Master, until a trustee has been
appointed, and, upon the appointment of the trustee,
to vest in him
all the property (including property or the proceeds thereof which
are in the hands of a sheriff or a messenger
under a writ of
attachment) of the spouse whose estate has not been sequestrated as
if it were property of the sequestrated estate,
and to empower the
Master or trustee to deal with such property accordingly”.
[15]
It is evident from the sheriff’s return dated 4 February 2013
that he attempted on 15 January 2013 at 18:22 and 22 January
2013 at
6:45 to execute the writ of execution. On both occasions he
found the premises locked and on both occasions he left
a note for
the Respondent.
[16]
The Respondent gave an explanation as to her absence on both
occasions. The Respondent however failed to reply to
the
averments about the notes left for her by the sheriff (more
specifically of any attempts on her side to contact the sheriff).
[17]
Be that as it may it is evident from the sheriff’s return that:
1.
Payment
of the amount of R613 326, 88 plus costs and vat was demanded from
the Respondent personally;
2.
The
Respondent was unable to pay the judgment debt and costs in full or
in part;
3.
The
Respondent was asked to point out moveable and disposable property
which could be attached;
4.
The
Respondent pointed out movable assets which were then attached by the
sheriff as per the notice of attachment;
5.
The
Sheriff after diligent search and enquiry could find no further
movable assets at the given address.
[18]
In my view it is clear that the Respondent committed an act of
insolvency in terms of Section 8 (b) of the Insolvency Act.
[19]
With regard to the aspect of factual insolvency, it was stated by the
Applicant that on the available information the total
value of the
Respondent’s assets amounted to R1 201 983, 33 and her total
liabilities to R1 958 326, 88.
[20]
The Respondent took the point that the valuations relied upon by the
Applicant in this regard were not sworn evaluations and
consequently
should be ignored.
[21]
The Respondent was invited to disclose other assets.
[22]
Save to state that the Municipal valuation of the house in
Ventersdorp amounts to R510 000 and that the Respondent only has
a
bond of R30 000 over one of her other properties the respondent
failed to give an exposition of her assets and liabilities.
[23]
Although the Respondent stated that she was in the process of
obtaining a bond statement and a sworn affidavit from the valuator
which would be handed up to the Court, no such documents were
forthcoming.
[24]
With regard to the aspect of an advantage to creditors, it is evident
that the Respondent has assets (including interests in
four immovable
properties) as well as a monthly surplus which can be utilized to the
advantage of creditors.
[25]
With regard to the provisions of Section 21 (I) of the Insolvency
Act, it was held that an application may be made to sequestrate
the
estate of the solvent spouse on the ground of an act of insolvency
committed by such spouse since the vesting of her property
in the
Master or the Trustees of the estate of the Insolvent spouse. (
Souter
No v Said No
1957 (3) SA 457W
).
It
is therefore ordered that:
1.
The
estate of the Respondent is placed under provisional sequestration.
2.
A
rule
nisi
is issued calling upon the Respondent and all persons interested to
show cause on a date to be determined by the Registrar as to
why the
estate of the Respondent should not be placed under final
sequestration.
3.
This
order shall be served by the sheriff on the Respondent personally.
4.
The
costs of this Application shall be costs in the sequestration of the
Respondent’s estate.
Signed
at _______________on this ______day of _______________2014.
____________________________
Judge De Klerk
AJ
The Honourable
Judge of the High Court
Of Pretoria