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REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, JOHANNESBURG

Case Number: 2023/114416






In the matter between:
GENFIN (PTY) LTD Applicant
and
JUDY ANNE MILNE First Respondent

ROBERT MILNE Second Respondent


JUDGMENT
(1) REPORTABLE: YES / NO
(2) OF INTEREST TO OTHER JUDGES: YES/ NO
(3) REVISED: NO

22 April 2025
DATE SIGNATURE

2

Noko, J

Introduction [1] The applicant , Genfin (Pty) Ltd instituted sequestration proceedi ngs
against both respondents , who are married to each other in community of
property. The application is predicated on the averment s that the responden ts
have committed an act of insolvency in terms of sections 8(b)
1 and 8(g)2 of the
Insolvency Act3. The respondent s oppose the application and contend that the
order , upon which the alleged act of insolvency is predicated, was erroneously
sought and granted, and is susceptible to rescission.
The parties
[2] The appl icant is Genfin (Pty) Ltd ( Reg No.: 2016/212828/07) a private
company duly incorporated in t erms of the laws of the Republic of South Africa,
with its registered address at 9 […] J[…] D[…] J[…] Drive, […] F[…], Building [ …],
F[…] […], V[…] O[…] E[…], D[…] B[…], Cape Town.
[3] The first respondent is Judy -Ann Milne , an adult female business person
residing at 3[…] A[…] D[…], F[…], S[…], Johannesburg.


1 “[I]f a court has given judgement against him and he fails , upon the demand of the officer whose
duty it is to execute that judgement, to satisfy it or to indicate to that officer disposable property
sufficient to satisfy it, or if it appears from the return made by that officer that he has not found
sufficient disposable property to satisfy the judgment;” .
2 “[I]f he gives notice in writing to any one of his creditors that he is unable to pay any of his
debts;” .
3 Insolvency Act 24 of 1936

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[4] The second respondent is Robert Milne , an adult male business person
residing at 3[ …] A[…] D[…], F[…], S[…], Johannesburg.

Background [5] The applicant entered into a written l oan agreement (“agreement”) with
Abundant Media (Pty) Ltd (“Abundant Media”) on 7 November 2021 in terms of
which the applicant advanced the amount of R2 982 625.18 to Abundant Media.
The first respondent signed an d bound herself as both guarantor and surety in
favour of the applicant for the obligations of Abundant Media set out in the
agreement.
[6] During March 2023, the applicant issued a letter of demand for payment
as Abundant Media defaul ted on its repayments. Legal proceedi ngs were
instituted against Abundant Media and the first respondent in the Western Cape
High Court under case number 6742/2023, and an order was granted by
agreement between the parties on 5 June 2023. The settlement agreement
provides that the respondent s were jointly and severally liable for the debt
incurred by Abudanti Media and that payment of the judgment debt will be made
in instalments over a period of time.
[7] Both Abundant Media and the first respondent defaulted again on
payments . The sheriff was furnished with a writ of execution and instructed to
attach the assets of the first respondent . The sheriff subsequently delivered a
nulla bona return to the applicant’s Attorneys . The first respondent ’s attorney
thereafter penned a letter to the applicant , stating that the first respondent “ has
no income and there is nothing she can do about it right at this moment” .
4 The
applicant then instituted these sequestration proceedings.


4 See para 23 of the Applicant’s Founding Affidavit at CL 01- 13.

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[8] The respondents referred to the background of the business activities of
Abundant Media which was established in 1999 to provide marketing, branding
and promotional services . Abundant Media grew exponentially and was able to
generate an annual income of R90 million . During 2022, Abundant Media entered
into an empowerment agreement with its employees ’ company, Motherland
Media (Pty) Ltd (“Motherland”) , in terms of which the latter would purc hase its
advertising -brokering core business for a consideration of R6 358 485.00 payable
over a period of time. The founders of M otherland subsequently established a
parallel company and stripped Motherland of its client s and thereafter raised a
dispute regarding the indebtedness to Abundant Media . This dispute and refusal
to pay led to Abunda nt Media’s financial woes.

Application in terms of Rule 6(5)(e) of the Uniform Rules of Court
[9] The respondents uploaded an application for leave to admit a fourth set of
affidavit a day before the hearing which was supported by a supplementary
affidavit . The applicant did not object to the request to admit the supplementary
affidavit , as it present ed developments that occurred after the parties had
exchanged initial affidavits .

[10] In view of the absence of opposition and the submission that the content s
of the affidavit will aid in the a djudication of the matter , this Court grant ed the
application seeking its admission.
Submissions by the parties
[11] Counsel for the applicant began his submissions by stating that although
the Notice of Motion s ought relief for provisional sequestration, the heads of
argument refer red to final sequestration. He clarified that t he intention now is not
to persist with the final order but to keep the prayer for an order of provisional
sequestration. Additionally , he observed that although the respondents have

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raised issues identified as point s in limine , a closer scrutiny revealed that tho se
issues implicate the merits of the application; accordingly, they will not be dealt
with separately.

Acts of Insolvency
[12] The applicant contended that the respondent failed to satisfy the court
order issued in the Western Cape High Court which , despite the first
respondent’s threat to challenge it , remained extant .
5 The sheriff attended the
first respondent ’s residence for attachment , and the return of service indicates
that the first respondent has no assets s ufficient to satisfy the judgment. In view
of this, the first respondent committed an act of insolvency , which warrant s, at a
minimum, an order for provisional sequestration.
[13] The first respondent seek s to impugn the loan agreement , in particular that
the said agreement contains suretyship and guarantor clauses , which she
contends , do not compl y with the law. She argues that suretyship agreement s
are required to be in writing and signed by the surety. Further more, section 13 of
the Electronic Communications and Transactions Act 25 of 2002 prescribes formalities for electronic signatures which, according to her, were not complied
with. To the extent that the suretyship agreement’s signature was not in
compliance with the provisions of the ECT Act, she contends that it is invalid . It
follows , she argues, that the order granted pursuant to that invalid agreement
was sought and granted erroneously.


5 The applicant referred to Municipal Manager, OR Tambo Municipality and Another v Ndabeni
[2022] ZACC 3; 2023 (4) SA 421 (CC); 2022 (10) BCLR 1254 (CC) where the C onstitutional
Court quoted the State Capture case where it was stated that order s are binding until set aside.

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[14] The respondent further contends, albeit not in clear terms , that the
foregoing argument also applies to the portion of the agreement which provides
that she was signing in her capacity as guarantor.

[15] She furthe r contends that the sheriff’s statement that there are no
sufficient assets is incorrect , as she invited hi m into the house to effect
attachment —an invitation which the sheriff declined .
[16] Although she was informed that the agreement contains both suretyship
and guarantor clauses , and that she had signed it, the first respondent contends
that she was not made aware that it is crafted in such a way that the applicant
would be entitled to pursue her personally without first having recourse to
Abudanti Media. Had she been so advised, she argues, she would not have
agreed to that arrangement.
[17] The applicant concedes that the requirements for an electronic signature
were not complied with and acknowledges that there is merit in the first
respondent’s argument but only in relation to the s uretyship agreement , which is
required to be in writing. However, t he applicant dispute s that the same applies to
the guarant ee clause, as a guarantee is not required to be in writing. Counsel
submitted that a reading of the agreement makes it clear that the parties intended
the first respondent to bind herself as guarantor for the payment of the monies
due. In this regard, r eference was made to clause 3.1.1. in which the first
respondent agreed that she:

“[I]rrevocabl y and unconditionally, guarantees and undertakes, as a
principal an independent obligation in favour of the Applicant to punctually pay any and all amounts which may be payable to the Applicant from time

7
to time by Abundant Media and to punctually perform any and all
obligations which me be owing from time to time by Abundant Media.”6

[18] The second act of insolvency relates to the letter penned by the f irst
respondent ’s attorneys , in which it was stated that the first respondent has no
funds to settle the judgment debt. This constitutes an act of insolvency as
contemplated in section 8(g) of the Insolvency Act , and, the applicant argues,
warrant s the granting of a sequestration order against the respondents.
[19] The first respondent contends that the contents of the letter upon which
the averments of insolvency is premised was intended to refer to Abu ndant
Media, and not to herself personally. Whil e she concedes that Abundant Media
could be insolvent , she argues that this does not automatically render her
insolvent .
[20] The applicant contends that the argument raised by the first respondent is
opportunistic , as at the time when the letter was sent, there was already an order
against both Abundant Media and the first respondent. They had been held jointly
and severally liable. The applicant f urther points out that Abundant Media was , by
then, already in the process of applying for liquidation.

[21] The argument adv anced by t he applicant regarding the legal requirement s
and distinction between suretyship and guarantee has merit and aligns with the
decision in Z urich Risk Financi ng SA (Pty) Ltd.
7 I have considered the disputes

6 See para 13 of the Applicant’s Replying Affidavit at CL01- 215.
7 Absa Bank Ltd v Zurich Risk Financing SA (Pty) Ltd [2009] ZAGPJHC 85. See also Standard
Bank of South Africa Ltd v Essa and Others [2012] ZAWCHC 265 where it was stated in para 10
that “ [i]t is well established, however, that the assumption by a surety of an obligation as ‘surety
and co- principal debtor’ in no way derogates from the character of the contract entered into as
one of suretyship. In the context the term ‘co- principal debtor’ denotes nothing more than a
waiver of the ordinarily implied right of a surety to the excu ssion of the principal debtor before


8
raised by the first respondent and find her version to be implausible , far- fetched
and untenable, and it must be rejected—save for the dispute regarding the
electronic signature and the non-compliance with the requirements set out in
ECT Act when the agreement was signed. I have also considered the applicant ’s
contention that the first respondent’s affidavit clearly indic ates that her liabilities
exceed her assets and that, as such, the respondents are factually insolvent . In
the circumstances, I find that the respondents are insolvent.

[22] Having found that the respondent s are indeed insolvent , I need to consider
whether their sequestration would be in the interest s of the creditors , and
whether, in the exercise of my discretion , I ought nevertheless to refuse a
sequestration order .
[23] The applicant submitted that a search was conducted and it was
established that the respondents own immovable property valued at over R4
million , against which several bonds are registered, totalling approximately R 1
million. No further information regarding the respondents’ assets or income is
known to the applicant . However, it is submit ted that the sequestration would be
to the advantage of the creditors. In addition, the applicant submitted that an
amount of R 2,4 million in cash is already available for distribution between the
two creditors , being the applicant and FirstRand Bank.
[24] The respondent contended that, based on the financial information relating
to her assets , sequestration would certainly not be in the interest s of the
creditors. The record of the Abundant Media’s Liquidation process indicates that,
if all assets are realised, there would be a surplus in excess of R 7 million rand,
which would be sufficient to satisfy the applicant’s claim .


recourse may be had by the creditor against the surety. It also constitutes a renunciation of the
benefit of division.”

9
[25] The respondent referred to Lambrechts ,8 where the court stated that
“[s]equestration would seem in the circumstances not to hold any material
advantage over ordinary execution following upon judgment ”. It was further
contended that , ordinarily the “… creditor would need to demonstrate some
reasonable expectation that sequestration would yield more than the likely
proceeds of ordinary execution: ‘ Unless he does that, the laborious and
substantially more expensive remedy of sequestration can hardly be thought
advantageous ’.9 The respondent submitted that, t o the extent that dividends from
the liquidation of Abundant Media may cover the judgment debt , the
sequestrati on of the respondents may not be to the advantage of the creditors.
[26] In response, the applicant contended that it was entitled to proceed
against the first respondent in her capacity as guarantor . In any event , the
appointed liquidator of Abundant Media has already invited contributions towards
legal costs for the litigation process. Moreover, the applicant submitted that the
immovable property has since been sold, and any attempt at execution would
therefore not be successful.

[27] It was stated by the Constitutional Cour t in Stratford
10 that:

“In terms of the Insolvency Act , a court may grant a sequestration order,
either provisionally or finally, if ‘ there is reason to believe that it will be to
the advantage of creditors of the debtor if his estate is sequestrated’ . It is
the petitioner who bears the onus of demonstrating that there is reason to
believe that this is so. In Friedman the Court held: “[T]he facts put before

8 Investec Bank Ltd v Lambrechts N.O and Others 2019 (5) SA 179 (W CC).
9 Id at para 55 as contrasted with the decision in Gardee v Dhanmanta Holdings & Others 1978
(1) SA 1066 (N).
10 Stratford and Others v Investec Bank Limited and Others [2014] ZACC 38; 2015 (3) SA 1 (CC)
2015 (3) BCLR 358 (CC) at paras 43- 44.

10
the Court must satisfy it that there is a reasonable prospect – not
necessarily a likelihood, but a prospect which is not too remote – that
some pecuniary benefit will result to creditors. It is not necessary to prove
that the insolvent has any assets. Even if there are none at all, but there
are reasons for thinking that as a result of enquiry under the [Insolvency
Act] some may be revealed or recovered for the benefit of creditors, that is
sufficient”. (Emphasis added. )

The meaning of the term ‘ advantage’ is broad and should not be rigidified. This
includes the nebulous ‘ not-negligible ’ pecuniary benefit on which the appellants
rely. To my mind, specifying the cents in the rand or ‘ not-negligible’ benefit in the
context of a hostile sequestration where there could be many creditors is unhelpful. Meskin et al state that — “the relevant reason to believe exists where,
after making allowance for the anticipated costs of sequestration, there is a reasonable prospect of an actual payment being made to each creditor who proves a claim, however small such payment may be, unless some other means of dealing with the debtor’s predicament is likely to yield a larger such payment. Postulating a test which is predicated only on the quantum of the pecuniary
benefit that may be demonstrated may lead to an anomalous situation that a
debtor in possession of a substantial estate but with extensive liabilities may be rendered immune from sequestration due to an inability to demonstrate that a not-negligible dividend may result from the grant of an order.”
[28] As stated in the first respondent’s supplementary papers , the immovable
property has already been sold, and the creditors would certainly benefit from the
funds held by the attorneys who transferred the property.
[29] With regard to the question of discretion, the applicant referred to
Malesela Taihan Electric Cable (Pty) Ltd v Fidelity Security Services (Pty) Ltd
11

11 [2017] ZAGPJHC 341.

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where the court held that the respondent should put forward some special or
unusual circumstances for the court to exercise its discretion against the granting
of a sequestration order. The respondent, in turn, referred to sections 10 and 12
of the Insolvency Act in relation to the court’s discretion when determining
whether to grant or refuse sequestration orders.

[30] The respondent contended that t he immovable property targeted by the
applicant is her residential property and that the applicant , having been aware of
alternative means to recover the debt, has adopted a harsh process that will
leave her homeless. The respondent further denied that the immovable property is encumbered and, accordingly, prayed that the application be dismissed with
costs.
[31] The counsel for the first respondent submitted that, in exercising discretion
regarding the grant of an order, the court should consider several mitigating factors. First, the respondent is 66 years of age and is responsible for the care of
a daughter with a medical condition, as well as an adopted 5- year-old child .
Second, t he second respondent is employed as a security manager , and if
declared insolvent, he would lose his employment —with adverse repercussions
for the entire family.
[32] The applicant contended that the court is enjoined to exercise its
discretion in favour of granting a sequestration order unless the responden ts
demonstrate exceptional circumstances. Authorities cited indicate that , ordinarily ,
the court is obliged to grant the order. The court should not give any credence to
the first respondent’s assertion that she stands to benefit from the liquidation of
Abundant Media, particularly where the liquidator is set to litigate against
Motherland , which owes the company R 34 million. The suggestion that the
applicant should participate in the liquidation was rejected on the basis that the
liquidator has requested the creditors to contribute to launching legal proceedings

12
against Motherland, and the applicant is not inclined to participate in such
litigation.

[33] The applicant’s counsel argued that the first respondent’s earlier
submission —that the only property to be disposed of upon sequestration would
be the residential property and that the court should therefore be hesitant to order
sequestration—has been overtaken by subsequent developments, as the said property has now been sold.
Conclusion
[34] It is axiomatic that the case for the sequestration of the respondents has
been established, and the respondents’ attempts to frustrate the application are
based purely on implausible grounds and are therefore unsustainable.
Accordingly, I am persuaded that an order for provisional sequestration is
warranted.
Costs
[35] The applicant has asked that the costs be costs in the sequestration and I
have no qualms therewith .
Order

[36] In the premises , I make the following order :
1. The Respondents ’ joint estate is hereby placed under provisional
sequestration and assets thereof are placed in the hands of the Master of
the High Court.
2. A rule nisi is hereby issued calling upon the respondents and all
interested parties to show cause on 2 5 October 2025 why, if any, the
following order should not be made:

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2.1. A final sequestration order be granted;
2.2. The cost of this application be caused in the sequestration.
3. A copy of the provisional order be served in the following manners:
3.1. By the Sheriff on the respondent at 39 Albatross Drive, F ourways,
Sandton, Johannesburg.
3.2. By the Sheriff on the employees of the respondents , if any, at
39 Albatross Dr ive Fourways , Sandton, Johannesburg.
3.3. On the South African Revenue Services.
3.4. On the M aster of the High Court situated in Johannesburg; and
3.5. by publication in both the Government Gazette and The Star
newspaper.

M V NOKO
Judge of the High Court,
Gauteng Division, Johannesburg.

This judgement was prepared and authored by Noko J and is handed down electronically by circulation to the p arties / their legal representatives by email
and by uploading it to the electronic file of this matter on CaseLines. The date of the judgment is deemed to be 22 April 2025.
Date s:
Hearing: 19 November 2024
Judgment: 22 April 2025.

Appearances
For the Applicant : S van der Meer
Instructed by : Van Dere Meer and Part ners

For the Respondent s: L Acker
Instructed by : Keyes Attorneys