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Introduction
[1] On 6 December 2022, the applicants obtained, on an urgent basis, an order in
terms of which the estate of the estate of the respondent was placed under
provisional sequestration. For reasons that are not presently relevant, the
provisional sequestration order lapsed, was revived and thereafter extended from time to time, the most recent of which was on 29 July 2024, when the provisional sequestration order was again extended and the application was postponed for
hearing before me on 10 March 2025.
[2] When the application was heard before me, Mr. Lazarus, who appeared on behalf
of the respondent, submitted that there are effectively three issues that require
determination in the matter, namely:
(a) Whether the applicants duly authorised the institution and prosecution of the
proceedings, including whether their attorneys of record were duly authorised to institute and prosecute the sequestration proceedings on
behalf of the applicant.
(b) Whether the applicants have the requisite locus standi in iudicio in that they
are said to be not the true creditors of the respondent (if the respondent is
indeed the true debtor).
(c) Whether the respondent is the true debtor or whether a company, of which
the respondent is the sole director, Cellular Data Invest (Pty) Ltd (“CDI”), is
the true debtor.
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[3] Mr. Roux, who appeared before me on behalf of the applicants, took no issue
with Mr. Lazarus’ summary of the issues requiring determination.
The Applicants’ Case
[4] The deponent to the founding and replying affidavits is an individual by the name
of Anthony Goodman. He was, at the time of deposing to the founding affidavit,
the applicants’ general manager. He subsequently became the sole director of
the first applicant.
[5] According to the applicants, the respondent is indebted to them in the amount of
approximately R760 000.00 arising out of certain fraudulent misrepresentations
made by the respondent to the applicants, and the theft under false pretences by
the respondent of the aforesaid sum. In particular, the indebtedness is said to arise out of the following circumstances.
[6] In or around March 2022, the applicants and Mr. Goodman decided that it was
necessary to appoint a professional private investigator to assist them in
obtaining information and documents that were required in a number of civil and criminal legal matters in which they were involved. It suffices for present
purposes to mention that these cases included a case instituted by the applicants
against a well-known online retailer, a criminal matter (which is still pending), wherein Mr. Goodman is the accused person, and an action, in which Mr. Goodman is the plaintiff and in which he seeks damages against a large well-
known insurer.
[7] In order to determine whether any of the parties in the aforesaid litigation had
acted unlawfully, the applicants engaged the respondent and contracted with him
to provide professional private investigation services. In doing so, the
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respondent, according to the applicants, made various representations
pertaining to the services that he would provide, as well as to the information and documentation that he would obtain and present to the applicants and Mr.
Goodman. The applicants contend that they were induced to contract with the
respondent as a result of the aforesaid representations. The applicants contend further that the representations were, to the respondent’s knowledge, false and fraudulent, in that, inter alia, he never intended providing the applicants with
usable, admissible, authentic information and/ or documents, which would be of assistance to them in their various legal matters.
[8] In due course, the respondent furnished Mr. Goodman with various documents
and information which suggested that the criminal proceedings against Mr.
Goodman were being continued despite a lack of evidence, and an intention on the part of the National Prosecuting Authority not to continue therewith because of monies having illegally been paid to various persons, including but not limited
to the lead prosecutor in the case, the deputy director of public prosecutions and
two investigating officers.
[9] As a consequence of having received this information and documentation, which
appeared extremely convincing, Mr. Goodman approached the Hawks and
requested them to consider the “evidence” provided by the respondent, which they undertook to do.
[10] It later turned out that all of the documentation and information furnished by the
respondent to Mr. Goodman were manufactured by the respondent, with the
intention of misleading the applicants and Mr. Goodman into believing that they were authentic so that the respondent would continue being paid for his
“services”.
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[11] According to the applicants, the Hawks have now shifted the focus of their
investigation to the respondent, and Mr. Goodman has been advised that such
investigation is ongoing.t
[12] As part of the respondent’s “investigations”, he introduced Mr. Goodman to a
certain Shaun Heneke, an individual who, according to the respondent, worked
at Nedbank and who could provide the applicants with evidence of the
aforementioned bribes having been made. In due course, however, Mr. Heneke
confessed to Mr. Goodman that all of the information and documentation furnished to him and the applicants by the respondent were false and manufactured. Mr. Heneke also confessed to Mr. Goodman that he (Mr. Heneke)
had received gratification from the respondent in return for participating in the
scheme, which participation included spending significant time with Mr. Goodman, telling him about his and the respondent’s “investigations” and the discovery of the alleged conspiracy against Mr. Goodman.
[13] After learning of the above, Mr. Goodman, on 29 August 2022, confronted the
respondent, who admitted to Mr. Goodman that everything he had told Mr.
Goodman was a lie and that all of the “evidence” he had gathered, of clandestine
activities against the applicants and Mr. Goodman, was false. This included
manufacturing and falsifying alleged proofs of payment by certain entities to the persons mentioned above and who were responsible for, and engaged in the prosecution against Mr. Goodman.
[14] There was thus no cause for the payments to be made by the applicants to the
respondent, alternatively if there was such cause, it is void as a consequence of
the misrepresentations and has been treated as such by the applicants. They
are accordingly out of pocket in an amount of more than R760 000.00.
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[15] Matters came to a head at the end of August 2022, when Mr. Goodman and Mr.
Goldblatt exchanged various WhatsApp messages. The extract attached by the
applicants to their founding papers is not disputed by the respondent. In terms
thereof, it appears to me to be undeniable that the respondent (i) acknowledged
his indebtedness and (ii) acknowledged that he was unable to pay his debts. He also sought further time to pay the applicants and otherwise offered to make certain arrangements with them. According to the applicants, the WhatsApp
exchange is undeniable proof that the respondent has committed various acts of
insolvency, namely:
(a) in terms of section 8(c) of the Insolvency Act 24 of 1936 (“the Act”) in that
the respondent made or has attempted to make a disposition of his property which has or will have the effect of prejudicing his creditors or preferring one creditor above another ; and/or
(b) in terms of section 8(e) of the Act in that he has made or offered to make
arrangements with his creditors to release him wholly or partially from his
debts; and/or
(c) in terms of section 8(g) of the Act in that he has given notice in writing to
one or more of his creditors that he is unable to pay his debts.
[16] It is further submitted by the applicants that the respondent is actually insolvent
and that his estate falls to be sequestrated in order that his creditors can be dealt
with equitably, and so that no creditors are preferred above others.
[17] As far as an advantage to creditors is concerned, it is trite to state that the
applicant has at least an evidentiary burden to show that the sequestration of the
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respondent’s estate will be to the advantage of his creditors. In this regard, Mr.
Goodman states that the respondent has, on numerous occasions, advised him that he is not only employed part-time as a police officer, but that he is also self-
employed and runs a number of businesses. Accordingly, so say the applicants, the respondent must earn a substantial income from all of his business activities. Furthermore, the applicants submit that, in view of the scheme perpetrated on the applicants by the respondent, it is likely that he has perpetrated similar
schemes on other unwitting parties and that such conduct requires further
investigation by a trustee.
[18] I should add, in concluding a summary of the applicants’ case, that it is set out in
the founding papers in considerable detail, supported by documentary evidence
and required of the respondent to engage meaningfully and comprehensively with its contents.
The Respondent’s Case
[19] In what is a worryingly terse answering affidavit, the respondent:
(a) seeks condonation for the late filing thereof;
(b) disputes that Mr. Goodman lacks the requisite locus standi because he is
neither a director nor employee of either applicant;
(c) further disputes that the applicants have authorised the institution and
prosecution of the proceedings;
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(d) asserts that the true creditor, if monies are owed by the respondent at all, is
Mr. Goodman; and
(e) denies that he, the respondent, is the true debtor, asserting that CDI is the
true debtor view of the fact that, according to the respondent, it was CDI
with which Mr. Goodman and the applicants contracted for in regard to the services.
[20] Remarkably, whilst the respondent appears to concede that either he or CDI was
engaged to render the services in question, he denies having represented to Mr. Goodman that any documentation obtained would be admissible in court proceedings because, and I quote “…Anthony Goodman was well aware that the
documents which I would be able to source would be obtained in an unlawful
manner.” According to the respondent, therefore, the purpose of the documents and information would be to intimidate State witnesses and prosecutors in the criminal proceedings against Mr. Goodman. The respondent himself calls this an
“unlawful agreement”. He submits further that, as a result, the agreement was
void ab initio and of no force or effect.
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[21] Furthermore, and as mentioned, the respondent also disputes that, because no
payments were made to him directly, he is not the true debtor. According to him,
the true debtor, if any, is CDI.
[22] As far as the respondent’s alleged insolvency is concerned, he does no more
than to baldly deny it. He did not, for example, disclose his financial position to
this Court at all, let alone by furnishing documentary evidence in regard thereto.
1 The parties thus appear to be ad idem that the underlying agreement was void, for one reason or
another. They all appear to have treated the agreement as such.
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[23] What is most concerning about the respondent’s affidavit, however, is that he
does not deal at all with the serious allegations made against him by the
applicants, nor does he deal with the WhatsApp exchange in any way
whatsoever. More about this later.
Analysis
[24] The issue pertaining to authority can be disposed of swiftly. Firstly, the
respondent appears to have conflated the separate issues of authority, on the
one hand, and locus standi on the other. As far as the former is concerned, on 1
March 2024, the respondent’s attorneys delivered a notice in terms of rule 7 of
the Uniform Rules of Court calling on the applicants to prove that their attorneys,
Mendelson Attorneys Inc., are and were at all material times authorised to represent the applicants, which must be taken to dispute that such attorneys were authorised to institute and prosecute the proceedings on behalf of the
applicants. In response thereto, the applicants confirm that, at all material times,
Mr. Goodman was and remains authorised to represent them in the proceedings (notwithstanding that this was not the respondent’s true complaint in terms of its rule 7 notice) and that Mendelson Attorneys are and were at all material times
duly authorised to represent the applicants in these proceedings. In suppor t
thereof, the applicants annex resolutions by the first and second applicants
confirming the above, and to the extent required or necessary, ratifying any step taken by the applicants and/or Mendelson Attorneys in the proceedings to date.
There is no doubt, in my view, that Mendelson Attorneys are duly authorised to
represent the applicants in these proceedings and that they have been authorised and/or ratified by the applicants.
[25] As far as Mr. Goodman is concerned, the complaint that he lacks locus standi is
misplaced for the reason that he is not a litigant in these proceedings; he is
merely the deponent to the applicants’ affidavits. It is trite to state that there is no
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need for any person, whether he or she is a witness, or someone who becomes
involved, especially in the context of authority, to be authorised other than the litigant’s attorneys. It is, for example, irrelevant whether a deponent to an affidavit
is authorised to depose thereto.
2 In any event, it is evident from the applicants’
response to the respondent’s rule 7 notice that Mr. Goodman is so authorised.
[26] As far as the second ground of opposition is concerned, I do not consider the
respondent’s dispute in regard to the locus standi of the applicants to be genuine
and bona fide . In this regard, whilst it is trite to state that insolvency proceedings
should not be employed in the face of genuine and bona fide disputes of fact,3
the operative phrase here is bona fide . So, for example, and in the first instance,
whilst the respondent disputes that the payments in question were made by the
applicants (on the basis that the proofs of payment reflect the payer as being “Aedo Processing Solutions (Pty) Ltd”, as opposed to the first applicant), it appears from the CIPC search furnished to the respondent in response to his
rule 7 notice that, on 4 June 2018, the first applicant changed its name from Aedo
Processing Solutions to that of the first applicant, namely All Phones Solutions (Pty) Ltd.
[27] The same can be said of the respondent’s bald denial that the applicants are
indeed the appropriate creditors. Mr. Goodman pertinently alleges that, at all
material times, he was acting for and on behalf of the applicants and it was they, the applicants, that made payments to the respondent and/or his nominee/s. I do
not consider the respondent’s dispute in this regard to be genuine and bona fide .
[28] As far as the issue of the true debtor is concerned, I likewise do not consider the
respondent’s denials in this regard to be genuine and bona fide . In the first
2 See in the regard Ganes and Another v Telecom Namibia Ltd 2004 (3) SA 615 (SCA) at [19].
3 See generally Bardenhorst v Northern Construction Enterprises (Pty) Ltd 1956 (2) SA 346 (T).
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DE OLIVEIRA AJ
ACTING JUDGE OF THE HIGH COURT
JOHANNESBURG
Counsel for the Applicant: C Roux
Intstructed by: Mendelson Attorneys Inc.
Counsel for the First Claimant: J Lazarus (Attorney)
Instructed by: Joshua Lazarus Attorneys
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