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[2008] ZAWCHC 89
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Business Partners Limited v Pieterse and Another (11183/2008) [2008] ZAWCHC 89 (17 November 2008)
IN
THE HIGH COURT OF SOUTH AFRICA
(CAPE
OF GOOD HOPE PROVINCIAL DIVISION)
CASE
NUMBER:
11183/2008
DATE:
17
NOVEMBER 2008
In
the matter of:
BUSINESS
PARTNERS LIMITED
APPLICANT
and
ANDRe
NEVILLE PIETERSE
RESPONDENT
and
ABSA
BANK LIMITED
INTERVENING
CREDITOR
JUDGEMENT
TRAVERSO,
D J P
:
This
is an application for the final sequestration of the respondent's
estate. The applicant applied for the provisional order
which was
granted on 15 July 2008. On the return day of the
rule
nisi
on
5 August 2008, Absa Bank applied to intervene
20
in
these proceedings in order to oppose the application. As a result of
that, the matter was thereafter postponed and finally
set down for
today for hearing of the final order.
The
papers in this matter are voluminous. They ran into some
25
417
pages. The issue, however, is a very, very simple one. It is
common cause between the parties that the applicant, who is
the
erstwhile Small Business Development Corporation, lends money in
order to support small and medium enterprises in all
sectors of the
economy. It is partially funded by the government through the
Department of Trade & Industry.
During
May 2007, the respondent, who is a medical doctor and a member of
the previously disadvantaged population group, applied
to the
applicant for finance. It is common cause that an amount of R450
000 was paid by the applicant to the respondent. It
is quite clear
that the respondent is not a man of very high moral standing. It is
apparent that as at the date of the application
for finance and when
he received the money, he was already trading in insolvent
circumstances. He held out to the applicant
that he was earning
between R20 000 and R30 000 per month, when in fact he was banking
approximately R500,00 per month.
It
appears that at the stage when he applied for the finance, he
20
had
already contemplated his departure from this country to Canada. Be
that as it may, Absa Bank, the intervening creditor, has
got a bond
over the immovable property of the respondent, which is, as far as
we know, the only asset which was left in the country
after the
respondent's departure.
It
is equally common cause between the parties that the figures that
were presented to the Court, who heard the matter in the
first
place, were incorrect. It is also common cause that there will be
no benefit for any creditor other than Absa, being the
secured
creditor. Absa obviously wants to protect thes ecurity that it
has got in terms of the bond, which is registered
over the
property.
The
only aspect the applicant is relying on for their
10
persistence
in this application in the final order, is that they say that
further investigation of the respondent's estate may
indicate that a
payment of R200 000 to Imperial Bank was an impeachable transaction
and that it may be set aside and that the
R200 000 may come back
into the estate for distribution amongst creditors.
It
is trite that in a situation such as the present, where there is no
other benefit to creditors, a creditor cannot simply rely
on the
fact that further investigation may or may not reveal certain
assets which can be used for distribution amongst the creditors.
The
applicant must satisfy the Court that there will be some financial
benefit to the creditors. In the circumstances I do not
believe that
the applicant has made out a case which entitles it to a final order
and that the intervening creditor's opposition
to this application
is sound.
In
the circumstances the application for the sequestration of the
respondent is dismissed and the
rule
nisi
is
discharged. The applicant is ordered to pay the costs of the
intervening creditor.
TRAVERSO,
D J P