Ex parte: Mpitsang (2232/2009) [2009] ZAFSHC 65 (28 May 2009)

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[2009] ZAFSHC 65
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Ex parte: Mpitsang (2232/2009) [2009] ZAFSHC 65 (28 May 2009)

FREE STATE HIGH
COURT, BLOEMFONTEIN
REPUBLIC OF SOUTH
AFRICA
Case No. : 2232/2009
In
the
ex
parte
application for:-
PHENYO
VICTOR MPITSANG
Applicant
(Identity
Number: )
Unmarried
_______________________________________________________
JUDGMENT
BY:
MOLEMELA,
J
_______________________________________________________
DELIVERED
ON:
28
MAY 2009
_______________________________________________________
JUDGMENT
_______________________________________________________
[1]
This
is an unopposed application for voluntary surrender. It appears from
the applicant’s Statement of Affairs that his debts
amount to a
total of R637 400,00. The annexure that deals with immovable
property reflects an amount of R600 000,00 as being the
value of the
applicant’s house. According to the annexure dealing with movable
property, the only movable property that the applicant
has is
furniture. The furniture has not been itemised and a global figure of
R10 000,00 is indicated as being as being the value
thereof.
According to the “berekeningsblad” an amount of R3000.00
represents preferent claims and accordingly has to be deducted.
No
sworn valuations were submitted in respect of any of the assets.
[2] It
is trite law that the acid test in determining whether or not to
grant an application for any sequestration is: will the
sequestration
be to the advantage of creditors?
Section 6
of the
Insolvency Act 24
of 1936
states that “if the court is satisfied that the provisions
of section four have been complied with, that the estate of the
debtor
in question is insolvent, that he owns realisable property of
a sufficient value to defray all costs of the sequestration which

will in terms of this Act be payable out of the free residue of his
estate and that
it
will be to the advantage of the creditors of the debtor
if his estate is sequestrated, it may accept the surrender of the
debtor’s estate and make an order sequestrating that estate.”
In
EX
PARTE MATTYSEN ET UXOR (FIRST RAND BANK LTD INTERVENING)
2003 (2) SA 308
(T) Southwood J stated as follows at p. 311 – 312:
“
It is well
settled what an applicant for voluntary surrender must do to prove
that his/her sequestration will be to the advantage
of creditors. In
Nell
v Lubbe
1999 (3) SA 109
(W) at 111D - G Leveson J stated the position as
follows:
‘
The purpose of
furnishing a sworn valuation is therefore to establish the price that
is likely to be realised from the sale of the
property on what is
called a forced sale
so
that it can be determined that there will be a free residue available
for creditors and advantage to creditors is thereby established
....
In
EX
PARTE ANTHONY EN 'N ANDER EN SES SOORTGELYKE AANSOEKE
2000 (4) SA 116
(C) at 124 F – I the Full Court of the Cape
Provincial Division expressly endorsed the approach of Leveson J in
NELL v LUBBE,
supra
,
found it to be equally applicable to applications for voluntary
surrender” (my underlining).
[3] In
TRUST
WHOLESALERS AND WOOLLENS (PTY) LTD v MACKAN
1954 (2) SA 109
(N) at 111 the court remarked as follows:
“
Whether it is
advantages [to the creditor] or not must clearly depend on the
circumstance, the value and number of assets available
for
liquidation, the amount of the claims, the costs of sequestration.
“
All the cases mentioned
above demonstrate the importance of showing the advantage to
creditors.
[4]
As
stated before,
in
casu
,
there is no sworn valuation of any nature in respect of both movables
and immovable property. This, despite the fact that the
Master of
the High Court specifically requested same in her report attached as
annexure “E” to the application.
Section 82(6)
of the
Insolvency
Act exempts
certain furniture from realisation. To the extent that
the applicant’s furniture has not been itemised, there is therefore
a
good possibility that part of the furniture included under “movable
property” is property that cannot be realised and that is
therefore
of no benefit to the creditors. The effect thereof would obviously
be to even further reduce the current estimated value
of R10 000,00
in respect of movable property.
[5] The
result of the applicant’s failure to attach sworn valuations means
that the
estimated values are of no real significance as the current value of
those properties could be far less than those estimates. If
the
values are indeed less, this aspect would negatively impact not only
on the dividend but also on the sufficiency of the costs
of
sequestration as the latter costs are obtainable from the free
residue of the estate. In the absence of a sworn valuation, I
am not
satisfied that the applicant has complied with the requirements of
section 6
of the Act.
[6] Accordingly,
the following order is made:
The application for
voluntary surrender is dismissed.
_________________
M.B. MOLEMELA, J
On
behalf of applicant:
Etienne
Visser Attorneys
BLOEMFONTEIN
/sp