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2024
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[2024] ZAFSHC 197
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Phuma Finance (Pty) Ltd v Nel (5473/2023) [2024] ZAFSHC 197 (27 June 2024)
IN
THE HIGH COURT OF SOUTH AFRICA,
FREE
STATE DIVISION, BLOEMFONTEIN
Reportable:
YES/NO
Of
Interest to other Judges: YES/NO
Circulate
to Magistrates:
YES/NO
Case
Number: 5473/2023
In
the matter between:
PHUMA
FINANCE (PTY) LTD
Applicant
And
WILLEM
ANDRIES MARITZ NEL
Respondent
JUDGMENT
BY:
REINDERS, J
HEARD
ON:
29 FEBRUARY 2024
DELIVERED
ON:
27 JUNE
2024
This
judgment was handed down in open court and distributed to the parties
via electronic mail communication.
[1]
The applicant is a registered credit provider who applies for the
sequestration of the estate
of the respondent and in the alternative
judgment for various amounts. The respondent opposes the application.
[2]
From the voluminous papers it appears that indebtedness of the
respondent arose by virtue of goods
sold and delivered by the
applicant to an entity known as 3 Skaar Boerdery (Pty) Ltd [in
liquidation] (3 Skaar Boerdery) in terms
of Instalment Sale
Agreements. The respondent bound himself as a surety and co-principal
debtor for the indebtedness of 3 Skaar
Boerdery to the applicant.
The aforementioned entity has already been liquidated on 27
June 2019.
[3]
The applicant avers that the respondent is factually insolvent as
envisaged in section 9(1) of
the Insolvency Act
[1]
(the Insolvency Act) and has committed acts of insolvency in terms of
sections 8(c), 8(d), 8(e) and 8(g) of the Act, more in particular
that he has given notice in writing to his creditor that he is unable
to pay his debts.
[4]
The respondent filed an opposing affidavit wherein he preferred not
to deal with the merits and
the allegations against him, but rather
to raise a single defence. The respondent states that, whatever claim
or claims the applicant
might have had, has prescribed in terms of
the Prescription Act
[2]
(the
Prescription Act) in that two Liquidation and Distribution accounts
were respectively confirmed by the Master of the High
Court on 2 June
2020 and 15 August 2020. The affidavit pleads that the court should
dismiss the application for sequestration on
the aforementioned
basis. However, in the event that the court finds that the
claim has not prescribed respondent requests
a postponement of the
application to deal with the allegations by the applicant. At the
same time respondent in such an event tenders
the costs occasioned by
the postponement.
[5]
In its replying affidavit the applicant disputes that the claims have
prescribed and alludes to
various payments (referred to in its
founding papers) which constituted express and/or tacit
acknowledgements of liability. As
a result, so it is submitted,
prescription commenced to start afresh as contemplated by sections
14(1) and (2) of the Prescription
Act. Applicant in addition refers
to the allegations made in the founding papers to the effect that the
Final Liquidation and Distribution
account in the insolvent estate of
3 Skaar Boerdery has not been confirmed in terms of section 408 of
the Companies Act
[3]
and the
affidavits of the joint liquidators from which it appears that
debtors still have to be collected and game has to be sold.
In fact,
it avers that the mentioned account has not been prepared by the
liquidators let alone confirmed. The impediment in section
13(1)(g)
of the Prescription Act, so the applicant submits, has for that
reason also not ceased to exist.
[6]
I am satisfied that the respondent has failed to convince me that the
claim against him has prescribed.
There is no evidence that the Final
Liquidation and Distribution account in the estate of 3 Skaar
Boerdery has been confirmed.
On the contrary, the only first-hand
evidence before me is that of the applicant stating that it has
neither been prepared by the
joint liquidators nor confirmed. In
addition thereto, various payments were made to the applicant by 3
Skaar Boerdery in terms
of the First Liquidation and Distribution
account. In my view therefore the claim has not prescribed.
[7]
A court may grant an application for the sequestration of a debtor’s
estate if it is satisfied
that the applicant has established a claim
which entitles it under section 9(1) of the Insolvency Act to apply
for sequestration
of the estate concerned, that the debtor committed
an act of insolvency or is insolvent, and there is reason to believe
that it
will be to the advantage of the creditors of the debtor if
the estate is sequestrated. The onus for satisfying the court on
these
matters is throughout on the sequestrating creditor and the
debtor has no onus to disprove any element of the claim. Section 10
of the Insolvency Act provides that if the court is of the opinion
that prima facie the applicant has established against the debtor
a
claim which is of the kind mentioned under section 9(1) and the
debtor has committed an act of insolvency or is insolvent and
there
is reason to believe that it will be to the advantage of creditors of
the debtor of the estate that the estate is sequestrated,
it may make
an order sequestrating the estate of the debtor provisionally.
[4]
[8]
None of the factual allegations in support of the applicant’s
petition for sequestration
(except for the issue of factual
insolvency) is disputed or at least seriously disputed by the
respondent. It follows that in my
view the applicant has made out a
prima facie case as required by section 10 of the Insolvency Act. In
am satisfied in light of
the evidence before me that, prima facie,
there is reason to believe that it will be to the advantage of
creditors of the estate
if it is provisionally sequestrated. The
respondent only has himself to blame for his election not to plead
over on the merits.
Should the provisional order be granted he will
have ample time to file an opposing affidavit on the merits, should
he so prefer.
I have therefore come to the conclusion that the
application must succeed and I shall issue the usual order in
applications of
this nature in this Division. The applicant in
addition sought an order in terms of section 20(1)(a) of the
Insolvency Act
for the money judgment as claimed by the applicant (in
terms of the alternative relief sought) to be stayed. I intend doing
so
as will be reflected in the order granted herein below.
[9]
Accordingly I make the following order:
1.
The estate of the respondent is hereby placed under provisional
sequestration in the hands
of the Master of the High Court.
2.
A provisional order is hereby issued calling upon the respondent to
show cause if any, to
this Court on Thursday 8 August 2024 at 09:30
why a final order of sequestration should not be granted against
respondent’s
estate.
3.
This order, together with a copy of the notice of motion and
annexures thereto must be served
on the respondent personally.
4.
A copy of this order must be served on:
4.1
any registered trade union that as far as the Sheriff can reasonably
ascertain, represents any of the
employees of the respondent.
4.2
the respondent’s employees, if any, by affixing a copy of the
order and application to any notice
board to which the employees have
access inside the respondent’s premises, or if there is no
access to the premises by the
employees, by affixing a copy to the
front gate, where applicable, failing which to the front door of the
premises from which the
respondent conducted any business at the time
of the presentation of the application papers, and
4.3
the South African Revenue Services.
5.
The Sheriff must ascertain whether the employees of the respondent
are represented by a Trade
Union and whether there is a notice board
on the premises to which the employees have access.
6.
The costs of this application for sequestration of the respondent’s
estate shall be
costs in the administration of the insolvent estate
of the respondent.
7.
The relief sought by the applicant in prayers 4, 4.1 (including
sub-prayers thereof), 4.2
and 4.3 of its Notice of Motion dated 13
October 2023, is stayed as contemplated in
section 20(1)(a)
of the
Insolvency Act 24 of 1936
.
C
REINDERS, J
On
behalf of the Applicant:
Adv.
L Meintjies
Instructed
by:
Noordmans
Inc
BLOEMFONTEIN
On
behalf of the 1
st
Defendant:
Adv.
S Grobler SC
Instructed
by:
Muller
Gonsior Attorneys
BLOEMFONTEIN
[1]
24 of 1936.
[2]
68 of 1969.
[3]
61 of 1973.
[4]
Poole v Saffy N.O. (2566/2021) [2024] ZAGPPHC 94 (5 February 20240
at para [15].