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[2014] ZAGPPHC 115
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Changing Tides 17 (Pty) N.O v Johannes and Another;In Re: Changing Tides 17 (Pty) Ltd N.O v Johannes and Another (4141 S/2013) [2014] ZAGPPHC 115 (13 March 2014)
IN THE HIGH COURT
OF SOUTH AFRICA,PRETORIA
(REPUBLIC OF
SOUTH AFRICA)
CASE
NO: 4141 S/2013
DATE:
13 MARCH 2014
In the matter
between:
CHANGING TIDES 17
(PTY) LTD N.O. Intervening Creditor
(in its capacity
as Trustee of the South African Home Loans Guarantee Trust)
And
VAN DEN BERG:
BILLY
JOHANNES
...................................................
First
Applicant
Identity Number:
7.................................
VAN DEN BERG:
JEANETTE
............................................................
Second
Applicant
Identity Number:
7.................................
In the Ex Parte
Application of:
VAN DEN BERG:
BILLY JOHANNES
..................................................
First
Applicant
Identity Number:
7.................................
VAN DEN BERG:
JEANETTE
............................................................
Second
Applicant
Identity Number:
7................................
JUDGMENT
MURPHYJ
1. The applicants
have made application for the voluntary surrender of their estate.
2. The application
is complete and the procedural requirements have been met in terms of
section 4 of the Insolvency Act 24 of 1936
(“the Act”).
3. Changing Tides
17(Pty) Ltd made application to intervene and opposed the application
for surrender on the ground that voluntary
surrender will not be to
the advantage of the creditors.
4. The issue of
contention between the applicants and the intervening creditor is
whether the assets and liabilities have been accurately
valued and
consequently whether the potential dividend for distribution amongst
the creditors is sufficiently advantageous.
5. The applicants
value their immovable property as having a forced sale value of R1
250 000, to which they add R7 350 in respect
of movables. The bond
amount on the property is stated to be R981 612, 80. After the
deduction of administration costs and taxes,
the amount available for
distribution among the concurrent creditors (valued at R348 812) is
R101 920,84, giving a dividend in
the rand for the creditors in an
amount of 29 cents.
6. The intervening
creditor contends that the value of the immovable property is
overstated. It attaches a valuation reflecting
that the property
bears a market value of R860 000 with a forced sale value of R602
000. It contends further that even if the applicants’
valuation
were accepted, the dividend is overstated for two reasons. Firstly,
the applicants have understated the amount owing
in respect of the
bond on the property by R10 000; and secondly the stated forced sale
value of the immovable property at R1 250
000 represents 80% of R1
560 000, the estimated market value, when the forced sale value,
according to the applicant’s own
valuer, should in fact be 70%
i.e. R1 092 000. The consequence of these two miscalculations is that
the amount available for distribution
to creditors has been
overstated by an amount of R168 000 (R10 000 plus R1 250 000 minus
R109 2000). The amount available for distribution
would then be zero.
For that reason, the intervening creditor rightly submits there will
be no advantage to creditors as there
would be nothing to distribute
and a contribution by creditors would most likely be required.
7. But even if the
property were to be realised for more than 70% of the estimated
market value, if it were sold for a mere R30
000 less than the hoped
for R1,25 million, the dividend would fall below a probable dividend
of 20 cents in the rand, being the
amount stipulated as the
acceptable amount in the Practice Manual of the Gauteng Division of
the High Court, Pretoria. Given the
varying valuations that is a
distinct possibility. The fact
that the intervening
creditor represents more than 70% of the creditors in value is a
relevant consideration in assessing its concerns.
8. In the premises,
I am of the view that the applicants have not discharged their onus
to show on a balance of probabilities that
there will be an advantage
to creditors if their estate is sequestrated.
9. I make the
following orders:
i) The intervening
party is granted leave to intervene in the application.
ii) The application
for voluntary surrender is dismissed.
iii) The applicants
are ordered to pay the costs of the intervening party.
JR MURPHY
JUDGE OF THE HIGH
COURT
Date Heard: 26
February 2014
For the
Applicants: Adv B Lee
Instructed
By: Michael Senekal Attorneys
For the
Intervening Creditor: Adv W Roos
Instructed
By: Velile Tinto & Associates