HIGH COURT OF SOUTH AFRICA
(GAUTENG DIVISION, PRETORIA)
CASE NO: 099263/2024
(l) REPORTABLE: YES
(2) OF INTEREST TO OTHER JUDGES: YES
(3) REVLSED.
SIGNATUR
In the matter between:
EX PARTE: NATASHA LORRAINE SLABBERT
EX PARTE: ETTIENE CLAUD SWANEPOEL
HEILA MAGDALENE SWANEPOEL
EX PARTE: JOHANN WILLEM JACOBS Applicant
CASE NO: 099003/2024
First Applicant
Second applicant
CASE NO: 098627/2024
Applicant
2
Summary: Insolvency Law -voluntary surrender -a practice has evolved where
parties only disclose so much of their assets as to enable them to
achieve the minimum dividend threshold representing an advantage
to creditors. The non-disclosure of assets and the contrivance of
evidence, including the improper use of incomplete valuations , are
impermissible. Applicants also cannot waive the protection afforded
them by section 82(6) of the Insolvency Act 24 o 1936. To do so,
would infringe on their rights to human dignity and freedom of trade.
Despite the protection contemplated in this section, all assets, even
those which may be excluded from execution , must be disclosed.
Applications for acceptance of voluntary surrender of estates
displaying manipulation of dividend calculations or incomplete
disclosure of assets should be refused.
ORDER
The applications for voluntary surrender of the applicants' respective
estates in matters 099263/24, 099003/24 and 098627 /24 are refused.
JUDGMENT
3
The matter was heard in open court and the judgment was prepared and authored
by the judge whose name is reflected herein and was handed down electronically
by circulation to the parties' legal representatives by email and by uploading it
to the electronic file of this matter on Case lines. The date of handing-down is
deemed to be 20 March 2025.
DAVIS, J
Introduction
[ 1] Substantial portions of each of the daily unopposed motion court rolls in
this Division I comprise of insolvency-related matters. Of those, a significant
number are applications for the acceptance of the voluntary surrender of estates.
[2] The practice in this Division is that, in order to indicate to a court that there
would be an advantage to creditors in such applications, a dividend of no less than
20 cents/Rand is expected2.
[3] The experience has shown that a surpnsmg number of applicants in
applications for the acceptance of the voluntary su.1Tender of their respective
estates, irrespective of where they may reside within the area of the Coui1's
jurisdiction and inespective of the multiple permutations resulting from their
differing circumstances, assets, and the number and extent of their creditors, the
dividends are almost without fail 20c -22c in the Rand.
[ 4] The improbability of these figures always being correct, raises concerns
and the three matters in question, illustrate the validity of such concerns.
1 There are, during term, three unopposed motion courts sitting daily in the Pretoria seat of this Division, with
each of the three courts rolls comprising of approximately 40 matters, that is 120 matters per day.
2 Ex pate Ogun/aja [2011] JOL 27029 (GNP) per Bertelsmann J.
4
The matters in question
[5] On 24 October 2024 I heard, amongst other matters, applications for the
voluntary surrender of the estates of the applicants in the following matters: Ex
parte NL Slabbert Case no 099263/2024, Ex parte EC Swanepoel & Another
Case no 099033/2024 and Ex parte J W Jacobs Case no 098627 /2024.
[6] Due to a number of concerns I had about these matters, I postponed the
matters to 13 November 2024. I also directed that the applicants, their attorneys
and the valuator3 employed by them, all deliver affidavits dealing with the
following aspects: the identity and role of one Ursula Gouws Consulting , being a
creditor which featured in all three applications ; the similarity in the asset values
and dividends in all three applications and why the matters should not be referred
to the Legal Practice Council for investigation.
(7] After having received the affidavits refen-ed to above and, after having
heard counsel for the parties in all three matters, all three applications for
voluntary surrender were refused. I indicated that reasons would be furnished
later. This judgment constitutes those reasons.
[8] It is customary in judgments to commence with an exposition of the facts,
followed by an exposition of the applicable legal principles and thereafter to
apply the law to the facts. In dealing with the reasons for refusing the three ex
parte applications , I find it more apposite to first set out the legal requirements
that the respective applicants had to meet and to thereafter indicate why I found
that the applicants ' applications weren't up to scratch.
The applicable law
3 For the sake of consisten cy, I shall use the term "valuator" as used in the papers as opposed to the synonym
"valuer".
5
[9] Applications for the acceptance of the voluntary surrender of estates are
regulated by the Insolvency Act4 (the Act).
(10] Section 3(1) of the Act provides that " an insolvent debtor ... may
petition the court for the acceptance of the surrender of the debtor's estate for
the benefit of his creditor". For "petition" read "apply to" .5
(11] Section 4 of the Act prescribes a number of formalities applicable to
applications for voluntary surrender. These pertain to prior notice of the
application, both by publication and registered mail to creditors as well as the
availability for inspection of the applicant's statement of affairs at the Master and,
where applicable, the local Magistrates office.
(12] Section 5 of the Act deals with the prohibition of sales in execution after
the publication of a notice of intention to apply for the voluntary surrender of an
estate.
(13] Section 6(1) of the Act, amongst other issues, prescribe that the voluntary
surrender of an applicant's estate can only be accepted once the court is satisfied
that the estate is factually insolvent that the debtor owns "realisable property of
a sufficient value to defray all costs of sequestration . . . and that it will be to the
advantage of creditors if his estate is sequestrated ... ".
(14] Following the wording of section 6, our courts have repeatedly held that
the proceedings envisaged in the Insolvency act are "creditor-oriented " or
"creditor-ckiven"6.
4 24 of 1936.
5 Section 1 of the Petition Proceedings Replacement Act 35 of 1976
6 See: Acta Unversitatis Danubis, The Meaning of Advantage to Creditors under Voluntary, Compulsory and
Friendly Sequestration in South Africa, AUDI, Vol 15 No 2/2019 pp 62-83.
6
[15] In our Division, the "advantage to creditors" requirement has been taken
to mean a dividend, after costs, of no less than 20c in the Rand for the whole body
of creditors 7.
[16] In addition, although the manner in which applications for voluntary
suITender should be made has been statutorily prescribed, they remain ex parte in
nature. As such, each applicant must display uberrimafides, that is utmost faith
to the Court. In Ex parte Arntzen8 the court has emphasized that in applications
of this nature, the requirement of full disclosure to be made by applicants, is even
more stringent as the relief sought impacts on the rights of third parties, namely
the estate's creditors.
[ l 7] In Ex parte Steenberg & other related cases9 the court expressed the view
that often valuators give an inflated value to assets ''for insolvency purposes ... to
enable the debtor . . . to surmount the difficulty of showing advantage to
creditors" . To ward against this, full and proper description of the assets must be
given, so much so that the court can be satisfied that the values reflected are true
and realistic.
[ 18] The existence of a free residue, sufficient to pay all the costs of
sequestration, has been described as an "indispensable condition precedent" to a
court's acceptance of the voluntary surrender of an estate 1°.
[19] In compiling a statement of the applicant's affairs as required by section
4(3), all assets must be included and no assets should be omitted merely because
they are hypothecated or regarded as worthless 11.
7 See the various permutations of the Practice Directives and Practice manuals over the years since Ex parte
Ogun/aja [2011] JOL 27029 (GNP) at par [9] per Bertelsmann J.
8 2013 (1) SA 49 (KZN). See also in general Sch/ezinger v Schlezinger 1979(4)SA 342(W).
9 1996 (3) SA 822 (W).
10 Ex parte Vane 1956 (4) SA 616 (0) and Ex parte Swanepoel 1975 (2) SA 367 (0).
11 Ex parte Klapper 1965 (2) SA 107 (0).
7
[20] The reason why the statement of affairs must be furnished with meticulous
accuracy "... is to a.fiord each of the creditors information concerning the
debtor's property and liabilities in order to enable such creditors to determine
the attitude [they] intend to adopt towards the application". 12
[21] Once full disclosure has been made of the applicant's estate, not only are
the creditors of the debtor/insolvent in a position to determine their response to
the proposed voluntary surrender, but the Court is then also in a position to make
a determination as to whether the acceptance of the voluntary surrender would
carry with it a sufficient advantage to the general body of creditors 13•
[22] In order to assist with and provide a measure of proof of the advantage and
possible dividends, the assets disclosed must be inspected by a qualified valuator
in the presence of the applicant and a sworn valuation must be provided,
indicating the realisable value of each item of the assets, both movable and
immovable 14.
(23] There are certain assets which, although part of an applicant's estate, are
excluded from any sale in execution by his trustee in the event that the voluntary
surrender is accepted. These excluded assets fall into two categories. These are
determined by section 86(2). The first category consists of wearing apparel and
bedding, which are absolutely excepted. The second category consists of
household furniture, tools of trade and other means of subsistence. The assets
comprising the second category are excepted from sale, but only at the discretion
12 Meskin, Insolvency Law in South Africa at par 7.3.2 on 3-8(3) and Ex parte Ne/ (supra) and Ex parte Van Zyl
1963 (2) SA 311 (G).
13 See: Stratford and Others v Investec Bank Ltd 2015 (3) SA 1 (CC) at par [45] and Meskin & Co Ltd v Friedman
1948 (2) SA 555 (W).
14 Ex parte Erasmus 2015 (1) SA 540 (GP) per BertelsmannJ, laying down the procedure in this regard in this
Division.
8
of those creditors who had proven claims against the estate and, in the event of
no claims being proven, at the discretion of the Master.
[24] Although previously15 applicants applying for the acceptance of the
voluntary surrender of their estates may have "waived" their aforementioned
rights of exclusion of assets, in order to increase the realisable extent of their
estate or to increase the advantage to creditors, this is no longer the case. It has
been held that it is impermissable for an applicant to waive rights which would
impair his or her Constitutionally guaranteed rights to dignity and freedom of
trade 16.
[25] Against this legislative backdrop, I shall now deal with the three
applications under consideration individually , starting in each instance with the
initial set of papers placed before the court and thereafter the papers delivered
pursuant to the Court's directives referred to earlier.
Ex parte Slabbert Case no 099263/2024 (Slabbert)
[26] In this matter the applicant was a sales marketing manager from Boksburg.
She was earning just under Rl 8 000.000 per month, but this fell more than
Rl 0 000.00 short of her expenses. She was married out of community of
property. The reasons for her insolvency were that "Covid had an effect on [her]
financial stability due to [h.er} not receiving salary for November, December
2023 and January 2024". Her husband's business only breaks even and they
have two children to take care of.
15 Ex pate Anthony and six similar matters 2000 (4) SA 116 (C).
16 See Evans, "legislative Exclusions or Exemptions of Property from the Insolvent Estate", [2011) PER 28 as
discussed in Ex parte Kroese 2015 (1) SA 405 (NWM) at [42) and [52) -(54).
9
[27] The applicant's liabilities of Rl08 174.54 exceeded her assets, valued at
R44 200.00, constituting factual insolvency. Included in her list of creditors, was
an amount ofR2 600.00 for Ursula Gouws Consulting.
[28] The free residue in Slabbert was calculated by her in the affidavit prepared
on the advice of her att01ney, Schoonraad Attorneys of Arcadia, Pretoria (VAT
included) as follows:
Assets
Less: Liquidations fees
Bill of costs
Counsels fees
"General disbursements"
Available for distribution 44 200.00
2 875.00
16 100.00
1 380.00
1 200.00
R 22 645,00
[29] Based on the above, the dividend was calculated to be 20,93 cents/Rand.
[30] The application was supp01ied by a valuation provided by a professional
valuator, Mr H B Dinna of Top Bid Auctioneers , Valuers and Appraisers CC,
having been perfonned on 12 August 2024. In a schedule, movable assets
comprising of 18 items were listed, including a "Trojan Exercise Bike" at a
replacement value ofR15 680.00.
[31] The applicant also, in her founding affidavit, stated "I have been advised,
which advice I accept, that all the assets must be disclosed to the Honourabl e
Court. The Statement o.f Affairs under oath represents all my creditors as well as
all of my assets".
10
[32] The applicant also added in a later paragraph: "I confirm that I was present
at the time my assets was (sic) appraised and that all my assets are reflected in
the valuation report not excluded by the insolvency act (sic)". She did not explain
which assets were excluded. The valuator, in his affidavit, merely stated in this
regard that Mrs Slabbert had " ... pointed out the movable assets that needed to
be valuated'.
[33] As will be seen hereinlater , the three applications under consideration , bore
striking resemblances to each other. The resemblances ranged from virtually
exact wording of the affidavits of the applicants and the valuator, to the amounts
of liabilities , the values of the assets (all only movables), and the dividends
proclaimed as advantages to creditors. In addition, the estate in all three
applications , despite the applicants hailing from various adddresses in the area of
this Court's jurisdiction , all shared the same creditor, Ursula Gouws Consulting.
Moreover, an asset described as a "Trojan Exercise bike", featured in two of the
three applications, at the exact same replacement value of R15 680.00.
[34] In her supplementary affidavit, Mrs Slabbert explained that she had
approached Ursula Gouws Consulting in January 2024 and that the reasons for
her consultation was her lack of receiving a salary as set out in her founding
affidavit and to find out if debt review would be to her advantage. In the end,
after discussions with her spouse and after Ursula Gouws had attempted to
negotiate with creditors, the proposed monthly instalment was not affordable.
She was then referred to "an attorney" and was provided with an invoice for
services rendered. She had approached Schoonraad Attorneys , provided them
with a list of creditors and a list of assets and was advised about the process and
consequences of the voluntary surrender of her estate.
[35] The attorney responded in his supplementary affidavit that, in order to
address the Cowt's concerns, he had contacted Ursula Gouws and he referred the
11
Court to her affidavit with which I shall deal later. He similarly referred to the
affidavit/s provided by the valuator.
[36] Although the attorney stated that the applicant had been referred to him by
Ursula Gouws Consulting, he stated that he thereafter had an independent
consultation with each of the applicants, but proceeded with each application for
voluntary surrender on the instructions of the individual applicants. In the case of
Mrs Slabbert, he was "entirely dependent" on the information provided by her
and the valuator. He also reiterated his bonafides and assured the Court that his
firm constantly strove to improve the quality of "their" applications ". .. by
regularly determining the courts ' requirements through our Counsel and
adjusting our applications accordingly".
[3 7] The valuator also provided an affidavit. From start to end, it consisted of
seven paragraphs, including the sub-paragraphs. He confirmed having been
advised of the similarity between his report in this matter and that provided by
him in the third matter (to be dealt with hereunder). The valuator confirmed that
he had performed the valuation of Mrs Slabbert's assets on 12 August 2024 and
that she had been present. He further stated the following : "I requested her to
indicate which assets she was the owner of as her spouse's assets do not form
part of her estate. I further informed her that certain assets are exempted from
the insolvent estate due to the personal nature thereof unless she repudiates her
rights to these assets. The applicant indicated that she was advised accordingly
by her attorney" .
[38] Mrs Ursula Gouws also provided the court with an affidavit. In it, she
stated that the was a "financial coach, strategist and registered debt counsellor ".
She confirmed that she had consulted with Mrs Slabbert on various occasions
since January 2024. She had received instructions from Mrs Slabbert to attempt
debt restructuring but, after having contacted her creditors and after having
12
prepared a proposal, Mrs Slabbert could not proceed with the process, due to
financial constraints. She stated that, although she is entitled to payment for
services rendered, it remained in her discretion to prove a claim in the insolvent
estate.
Ex parte E.C & H M Swanepoel Case no 099003/2024 (Swanepoel)
[39] In this matter the applicants were married in community of property to each
other. They reside in Krugersdorp. Mr Swanepoel is a manager at a local
company and Mrs Swanepoel is unemployed. They also have two children and
their expenses exceed their income. They stated that, "prior to Covid", they could
cover their expenses but, during Covid Mr Swanepoel's salary was not always
paid, whereafter he also became unemployed for several months.
[40] The parties' liabilities amounted to Rl09 742.67 (including a claim by
Ursula Gouws Consulting for R4 200.00), while their assets, consisting only of
movables, were valued at R44 100.00. Mr Dinna was also the valuator and the
attorney was again Schoonraad Attorneys .
[ 41] The free residue available for distribution amongst creditors, was
calculated as follows (VAT included):
Assets
Less: Liquidators fees
Bill of costs
Counsel's fees
"General disbursements "
Available for distribution 44 100.00
2 875.00
16 100.00
1 380.00
I 200.00
R22 545.00
[ 42] Based on the above, the dividend was calculated at 20,54 cents/Rand.
13
[ 43] The Swanepoel application was, in similar fashion as that of Slabbert,
supported by a valuation , this time one which had been performed on 20 August
2024. Some 21 items had been listed in a schedule attached to the valuator's
report, in which he had indicated the above value as the forced sale value.
[44] The same allegations had been made by the Swanepoels as by Mrs
Slabbert, namely that they had acted on the advice of the attorney and that they
had declared all their assets. Contrary to the case of Slabbert, the Swanepoels
stated: "We do away from the protection afforded by Section 82(6) of the
Insolvency Act and the sequestration process as certain of these items are luxury
items. Those assets that are exempted from seizure have not been listed by the
valuator". None of these latter two categories of assets have been particularised
in either the affidavits or the valuation report.
[ 45] Again, this matter was also postponed for three weeks with directives to
file supplementary affidavits. Those affidavits were filed and they were in pari
materia with those filed in Slabbert. This time round, the valuator's affidavit was
even more brief. The affidavit from Ursula Gouws indicated that the Swanepoels
had made an atTangement to pay her fees in installments . Despite this, the amount
due to her in this case was higher than in Slabbert.
Ex parte Jacobs Case No 098 627/2024 (Jacobs)
[ 46] In this matter the applicant was an unmarried assistant manager at a
national outdoor clothes and equipment retailer. Prior to 2018 Mr Jacobs had a
reasonable income but after switching to his current employer with hopes of
promotion, his position changed for the worse when all promotions had been put
on hold during the Covid period.
[47] Mr Jacob's expenses also exceed his income and with creditors totaling
Rl 08 691.56 exceeding his assets, which have been valued at R44 800.00, he was
14
factually insolvent. He also, like the Swanepoels, "[ did} away with the protection
afforded by section 82(6) of the Insolvency Act".
[ 48] After having also made allegations that he had disclosed "all" of his assets,
Mr Jacobs calculated the free residue in his estate to be as follows (VAT
included):
Assets
Liquidators fees
Bill of costs
Counsel's fees
"General disbursements"
Available for distribution 44 800,00
2 875,00
16 100,00
1 380,00
1 200,00
R23 245,00
[ 49] Based on the above, Mr Jacobs in his affidavit calculated the advantage to
creditors to be 21,38 cents/Rand .
[50] In similar fashion as in Slabbert and Swanepoel, I had postponed this
matter and directed that further affidavits be filed. This was prompted by the
considerations and concerns previously outlined, no least of wlllch was the
inclusion of a "Trojan Exercise Bike" with a replacement value of Rl 5 680.00
which also featured amongst Mr Jacob's movable assets. His list of creditors also
featured Ursula Gouws Consulting in an amount ofR2 200.00.
[51] The supplementary affidavits by the attorney and Mrs Gouws followed by
the same pattern as in the previous two matters. Regarding the exclusion of
assets, Mr Jacobs explained that he was in a relationship and that some of the
assets at his place of residence, were not his.
15
[52] The biggest difference in the supplementary affidavits filed in this matter
from those in the other matters, was contained in the affidavit of Mr Dinna. He
explained the similarities in the valuation reports in Slabbert and in Jacobs as
follows (I quote from his affidavit lest the gist of the contents be lost or
misconstrued by summation):
"3.5 I determined from my internal investigation that the valuation
on the application of Slabbert NL under case number
24/099263 was done on the 12 August 2024. This valuation
was done prior to the valuation on the applicant's file.
On the file of the applicant I noted that there was {sic) two
valuations and upon further investigation I noted that it was
the valuation for both the applicant and the aforementioned
matter under case number 24/099263. I humbly submit that
for the valuation of movable assets I have a general template
that is used. In this instance I can only conclude that prior to
drafting the correct valuation the incorrect valuation was
printed and incorrectly filed on the applicant's file. I humbly
submit that this was a bona fide filing error in my office.
3. 6 I further humbly submit that I am aware that I sign.ed the
incorrect affidavit regarding the valuation and provided that
attorney with the incorrect affidavit which was on file. A
duplicate valuation which was in the process of being altered
to reflect the correct assets was accidentally printed and
placed on file. This incorrect valuation was accidentally used
as the correct valuation and provided to the attorney".
16
[53] So the explanation provided to the court was a simple one: the valuator
used a template to formulate his reports, but before he could complete the
template to reflect the assets and values of Mr Jacob's movables , he had
inadvertently reprinted the template reflecting Mrs Slabbert's assets and annexed
that to his affidavit as the valuation of Mr Jacob's estate. A mere error of
inadvertently annexing another file's report.
[54] But the above is not true. Although all the assets reflected in Mrs
Slabbert's valuation report were repeated in that portrayed as the report of Mr
Jacobs estate, in three instances, the forced sale values had been changed.
[55] The easiest way to explain these differences are as follows:
Slabbert
Asset Replacement Current value Forced sale value
value
3 bookshelves 8 560.00 5 050.00 600.00
Sitting room suite 28 750.00 18 550.00 8 500.00
Trojan Exercise 15 680.00 10 440.00 3 200.00
bike
Jacobs
3 bookshelve s 8 560.00 5 050.00 800.00
Sitting room suite 28 750.00 18 550.00 7 900.00
Trojan Exercise 15 680.00 10 440.00 4 200.00
bike
17
[56] Admittedly, the differences in the amounts are small, but it means that the
explanation by the valuator of having inadvertently annexed exact copies of the
same report to his affidavits in two different files, was untrue. Consequently the
differences in forced sale values used in the two "templates" were not explained.
[57] The "new" and purportedly correct valuation report of Mr Jacobs' assets,
look markedly different. A completely different set of assets was reflected,
reflecting a replacement value of R145 858.00, current value of R90 840 and a
forced sale value of R4 7 910.00. This led to the attorney triumphantical1y
claiming in his supplementary affidavit an increased dividend of 24.24
cents/Rand .
[58] Despite the above, the list of similarities in values in the three estates are
still astounding. They can be depicted as follows:
Liabilities Assets Forced Free Dividend
Current Sale Residue
Value Residue
Slabbert 108 174.54 101 910.00 44 200.00 22 645.00 20.93
Swanepoel 109 742.67 101 830.00 41100.00 22 545.00 20.54
Jacobs I 08 691.56 101 910.00 44 800.00 23 245.00 21.38
Jacobs 108 691.56 90 840.00 47 910.00 26 355.00 24.24
("new")
[59] The following similarities must be added: all the applicants earn less than
R30 000.00 per month, all used Ursula Gouws Consulting and in all the
valuations performed , those assets comprising their estates (all only consisting of
18
movables) were identified by the valuer, who determined which assets may or
may not be subject to exemptions contemplated in Section 86(2) of the Act.
Discussion and evaluation
[ 60] I unreservedly accept that the financial consequences of the Covid 19
pandemic and the measures used to attempt to prevent its spread, had wreaked
havoc and devastation in the lives of a great many people. I have no reason to
doubt the evidence of the applicants in this regard, which exemplify this.
[61] Despite the case law indicating that voluntary surrenders of estates should
be creditor-oriented and to the advantage of an estate's body of creditors, many
debtors resort to it as a last resort, being a method utilised for their own benefit
to escape dire circumstances. The law, however, contemplates that such an
escape must at least also have a not negligible benefit to their creditors.
[62] It is this last requirement and, in particular the size of that benefit or
advantage required by our courts ( and by this Division in respect of the size of
the required dividend) , which gave rise to the current practice as evinced by these
three applications.
[63] Despite the requirements set by this court for the contents of valuators'
reports and their supporting affidavits17, the valuations often presented to court,
either do not assist the cowt properly or result in the non-compliant disclosure of
an applicant's estate.
[ 64] The primary reason for the above, as evinced by the three applicants under
consideration in this judgment , is the apparently widely held opinion that those
assets contemplated in section 82(6) do not form part of an insolvent's estate.
This perception probably arises from the anomaly that, although those assets do
17 Ex parte Ogunlaja (supra).
19
in fact form part of an insolvent's estate, they are in qualifying circumstances
exempted from sales in execution by an insolvent's trustees.
[65] To be clear: all of an insolvent's assets must be disclosed by him or her in
an application for the acceptance of the voluntary surrender of such an insolvent's
estate. The totality of an applicant's estate, that includes particulars of all assets
and all liabilities, must meticulously be included in the statement of affairs
contemplated by section 4(3) of the Act.
[ 66] In calculating the free residue and the dividend constituting an advantage
to creditors, such an applicant should indicate which of his assets fall in the first
category mentioned in section 82( 6) ( and paragraph 23 above) and which should
therefore be excluded from the assets from which a free residue can be extracted.
[ 67] Those assets comprising the second category mentioned in section 82( 6)
and which may, at the instance of proven creditors or the Master, as the case may
be, must also be disclosed and the applicant should furnish particularity and
reasons why those assets should be excluded from the dividend calculation.
[68] It is not enough for either the applicant or the valuator to simply (and glibly,
I might add) refer to the fact that assets contemplated in section 82( 6) are either
not disclosed or not included in the valuation report.
[69] As also indicated earlier, the "waivers" of the exclusion of assets from sales
in execution, is Constitutionally impermissible .
[70] The "exclusion " of assets from their disclosure by applicants also give rise
to the suspicion that only so much assets as may be required to reach the magical
dividend of 20 cents/Rand, are disclosed.
20
[71] The fact is that all three parties to each application, that is the applicant/s,
the attorney and the valuator must of necessity work together to achieve this
result. That is the only inference to be drawn from the facts illustrated by these
three applications. The attorney claims to rely exclusively on the information
provided by the applicants, while the applicant s in turn rely exclusively on the
advice given by the attorney. The valuator relies on the pointing out of assets by
the applicant, but clearly also indicates to the applicant which assets are
"excluded" and therefore omitted from both the valuator's report and the
Statement of Affairs. It is also inconceivable lay applicants would have been
capable of performing the divided calculations contained in their affidavits.
[72] I therefore found that all three applications under consideration failed to
satisfy the requirements of the Act. In none of them were full and proper
disclosure of the assets in the respective estates made. The unreliability of the
valuator's reports were also to such an extent that a correct calculation of the
alleged advantage to creditors could not reliably be undertaken.
[73] Whilst I accept the bona fides of Mrs Gouws, it appears that the process,
as seen from her perspective and that of the attorney and the applicants , is debtor
relief driven and not as creditor-oriented as contemplated in the Act. All
applications compiled with this objective in mind and with the deficiencies set
out in this judgment , should be scrutinized with a magnifying glass, before the
voluntary surrenders of estates contemplated therein are accepted.
[74] Attorneys, valuators and prospecti ve applicants are yet again reminded of
the requirement of displaying the utmost good faith before alleging to a court that
full disclosw-e of all a:;sets have been made, as the applicants in these three
matters have done.
21
Conclusion
[75] For all the reasons set out above, all three applications were refused.
Despite this refusal, I found insufficient mala ft.des on the part of the attorney to
meri a referral to the Lega] Practice Council. The judgment should serve as a
warning, through to the att01ney and all others in a similar position.
Order
[76] I therefore made the following orders:
The applications for voluntary surrender of the applicants ' estates m
matters 099263/24, 099003/24 and 098627/24 are refused.
Date ofHearing: 11 November 2024
Judgment delivered: 20 March 2025
APPEARANCES:
For the Applicant s:
Anomey for the Applicant s: NDAVIS
Judge of the High Court
Gauteng Division, Pretoria
Adv W Venter
Schoonraad Attorney, Pretoria.