About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Western Cape High Court, Cape Town
SAFLII
>>
Databases
>>
South Africa: Western Cape High Court, Cape Town
>>
2008
>>
[2008] ZAWCHC 295
|
|
Business Partners Ltd v Pieterse (11183/2008) [2008] ZAWCHC 295 (17 November 2008)
JUDGMENT
IN
THE HIGH COURT OF SOUTH AFRICA
(CAPE
OF GOOD HOPE PROVINCIAL DIVISIONS
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 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 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 Corporatton, 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. Jt 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 had
already contemplated his departure from this country to Canada.
Se
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 the security 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 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 R20O 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 ts dismissed and the
rule
nisi
is
discharged. The applicant is ordered to pay the costs of the
intervening creditor.
TRAVERSO,
D J P