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IN THE HIGH COURT OF SOUTH AFRICA
WESTERN CAPE DIVISION, CAPE TOWN

Case No: 25801/ 2024

In the matter between:

ASTRA CONSTANTINE INC Applicant

and

ALAN GEORGE JONES First Respondent

MAREE JONES Second Respondent


JUDGMENT


SIPUNZI AJ

Introduction

[1] This is an application for the provisional sequestration of the estate of the first
respondent. The applicant seeks an order in the following terms:

1. ‘That the ordinary rules of the above Honourable Court pertaining to forms,
notice and service be condone d and that this matter be disposed of as one of
urgency in accordance with Uniform Rule 6(12);

2. That the estate of the f irst respondent be placed under a provisional order of
sequestration under the authority of the Master of the High Court.

3. That the rule nisi be issued , calling on the first r espondent and all interested
parties to appear and show cause, if any, before this Honourable Court , on a
date to be determined by this Honourable Court , as to why an order should
not be granted in th e following terms:

3.1 That the estate of the first respondent be placed under final
order of sequestration; and
3.2 That the attorney and client costs of this application be costs in
the administration of the insolvent estate of the first respondent ;

4. That service of the o rder is effected as follows:

4.1 By the Sheriff on the first and second respondent personally;
4.2 By the sheriff on the South Afr ican Revenue Services , Cape
Town;
4.3 By the Sheriff upon the employees o f the first respondent (if any)
and any trade unions that represent the employees;
4.4 By one publication in each of “ the Cape Times” and “Die Burger ”
Newspapers; and
4.5 By sending a copy of this order to a ll known creditors of the first
respondent, with claims exceeding R20, 000.00 by prepaid
registered mail.

5. Such further and / or alternative relie f as the above H onourable Court
may deem fit in the circumstances.’

[2] This application first served before this Court on 14 January 2025, and an
order by agreement was obtained. The order disposed of the prayer in paragraph 1
in the notice of motion, and the application was postponed for hearing to the semi -
urgent roll. The directives issued regarding the future conduct of the matter. The
costs stood over for later determinati on.

[3] Both respondent s opposed the application , arguing that the applicant’s claim
was invalid in law and that the re will be no advantage to cre ditors should the estate
of the first respondent be provisionally sequestrated .

Condonation

[4] At the commencement o f the oral submissions, the respondents sought to
have the late filing of their answering affidavits condoned . The applicant did not
oppose th e application in either instance. Having considered the submissions, the
applications for the late filing of the answering affidavits was accordingly condoned.
It followed that the admission of the replying affidavit of the applicant had to be
admitted.

The parties

[5] The applicant is As tra Constantine Incorporated, a private company with a
share capital, duly registered and incorporated in terms of the statutes of the
Republic of South Africa with registration number : 2013/141928/21 . Its registered
address and principal place of business is located at 11 Remhoogte Road,
Heldervue, Somerset West, in the province of the Western Cape.

[6] The first respondent is Allan George Jones, an adult male and admitted
attorney of the High Court of South Africa, with identity number 6[...]. He practices
under the name and style of Allan G Jones Attorneys and continues to operate his
business from his residence at 1 [...] P[...], Still Bay West.

[7] The second respondent is Maree Jones, an ad ult female with identity number :
6[...], residing at [...] A[...] Street, Monte Vista, Western Cape. The second
respondent was married to the first respondent out of commun ity of property. The
applicant seeks no relief against the second respondent, she is cited as the former
spouse of the first respondent in compliance with the Consolidated Practice Note
30(1).

Summary of facts

[8] On 22 November 202 3, the C ourt granted a judgment in favour of the
applicant and against the first respondent. The order was issued under case number
2408/23 for a total amount of R920 500.00 with an interest rate of 7.25% per annum
a tempore morae , calculated from 29 June 2022, as well as costs. On 21 November
2024 , this Court dismissed an application by the first respondent to have this
judgement rescinded, under case number 2408/23. The applicant was also awarded
a cost order on an attorney and client scale. These judgments increased the debt to
a sum of R1 108 837. 63 and first respondent has yet to make payments .

[9] The first respondent was the previous owner of an immovable property at Erf
2[...], Parow, Cape Town. On 1 December 2023, the first res pondent sold th is
property to another third party for an amount of R12 000 000. 00 (Twelve Million
Rand) . The transfer of the aforementioned property was effected on 14 June 2024 .
Due to the existence of a mortgage bond on the property, an amount of R3 000 000.
00 (Three Million Rand) was settled with Investec Bank prior to transfer of ownership
to the purchaser. This transaction resulted in the first respondent having a surplus o f
R9 000 000.00 (Nine Million Rand) .

[10] The first respondent was also the registered owner of the immovable property
located at Erf 3[...], Goodwood . On 3 August 2023, the first respondent contributed
fifty (50) percent of his value of this immovable property to the second respondent.
This donation was made without any value to the first respondent . The first
respondent has other existing debts with various other creditors that remained
unpaid, including approximately R3 000 000.00 owed to SARS . There is also a
Court judg ment, taken by consent under case number 16381/22, requiring the
payment of R161 238.46 to Pieter Andreas Olivier. Additionally, there is another
judgment in favour of Cronos Capital (Pty) Ltd under case number 15237/23 for a
sum of R608 778.00.1 The first respondent also faced an ongoing claim from Carli
Brummer, under case number 21914/24, for the sum of R2 447 136.00.

[11] On 16 October 2024, the first respondent provided a sworn statement in
which he declared , that there was no immovable property registered in his name ,
neither within the country or abroad.2 On 4 November 2024, the Sheriff of this Court
for Riversdale sought to serve the writ of execution and demand ed payment of the
amount of R920 500.00 , along with interest an d costs , on the first respondent
personally. The first respondent informed the Sheriff that he had no money, property
or disposable assets with which he would satisfy the writ or any portion thereof.
Following a diligent search and enquiry, the Sheriff discovered no disposable
property to satisfy the writ. Upon receipt of an affidavit from the first respondent that
he had no immovable property registered to his name either within or outside the
Republic, the Sheriff filed a nulla bona return.

Issues

[12] The above factual overview prompts a multi -layered inquiry. First and
foremost , the court must determine whether the applicant has demonstrated that it
has locus standi to prosecute this application in terms of section 9(1) of the
Insolvency Act 24 of 1936 (the “Act”) . Second, the question arises as to whether the
first respondent engaged in an act of insolvency. Finally, it is important to consider
whether granting a provisional sequestration of the first resp ondent would provide
any advantage to the creditors.

Applicable legal principles

[13] This application is based on the provisions of section 9(1) of the Insolvency
Act 24 of 1936 (the “Act”), which provides that,

“(1) A creditor (or his agent) who has a liquidated claim for not less than
R100.00, or two or more creditors who in the aggregate have liquidated

1 Applicant’s replying affidavit, paragraph 23 to 25
2 Affidavit of Allan George Jones, dated 16 October 2025
claims for not less than R200. 00 against the debtor who has committed an act
of insolvency , or is insolvent, may pet ition the court for the sequestration of
the estate of the debtor.”

[14] The specific relief sought by the applicant is provided for in section 10 of the
Act, it reads:

“if the court to which the petition for the sequestration of the estate of a debtor
has been presented is of the opinion that prima facie -
(a) the petitioning creditor has established against the debto r a claim such
as is mentioned in sub section 1 of section 9 ; and
(b) the debtor has committed an act of insolvency or is insolvent; and
(c) there is reason to believe that it will be to the advantage of creditors of
the debtor if his estate is sequestrated , it m ay make an order
sequestrating the estate of the debtor provisionally. ”

[15] In terms of section 8(b) of the Act:

“a debtor co mmits an act of insolvency if a court has given judgment
against him and he fails upon demand of the officer whose duty it is to
execute that judgment, to satisfy it or to indicate to that officer
disposable property sufficient to satisfy it, or if it appears from the
return of service made by that officer that he has not found sufficient
disposable property to satisfy the judgment. ”

Evaluation

Does the applicant have a liquidated claim ?

[16] On 22 November 2023, this Court granted a judgement in favour of the
applicant and against the first respondent, ordering the payment of R920 500.00,
along with interest at the prescribed rate of 7.25% per annum, calculated from 29
June 2022, in addition to costs. It is further common cause that the same judgment
was a subject of an application for rescission at the instance of the first respondent.
That application was , however , dismissed with punitive costs . The costs implications
on the rescission judgment resulted in the amount owed being R1 108 837.63. This
amount remains unpaid in full , and there is no pending litigation that seeks to
challenge the aforementioned judgment.

[17] However , it was argued on behalf of the respondents that notwithstanding the
judgment that was granted in favour of the applicant for the sum claimed, the first
respondent was still entitled to ventilate a defence against the said judgment,
including whether it was a liquidated claim or not .

[18] In Pheko and Others v Ekurhuleni City3, the court addressed the obligations of
litigants towards judicial authority. It held that :

‘as the foundational value of our Constitution, the rule of law requires that the
dignity and authority of the courts be upheld , as the capacity of the courts to
carry out their functions depended up on it. According to the Constitution,
orders , and decisions issued by a court are binding on all individuals to whom
they apply and no one, may interfere with the functioning of the courts in any
manner. It follows that disobedience towards court orders or decisions risks
rendering our courts impotent , and judicial authority a mere mockery .’

[19] According to Ms Cawood who represented the respondent s, it should be
sufficient for the first respondent to simply assert that there is a bona fide defence to
the applicant’s claim, without offering any factual basis for it. However, she still
contended that the first respondent ought to present the foundation of its allegations
through an affidavit, ensuring sufficient detail is provided.

[20] According to the Badenhorst Test ,4 in instances wher e the indebtedness of
the respondent has been established on a balance of probabilities , the onus falls on
the respondent to show that the debt in question is contested on genuine or bona
fide grounds. The first respondent fails to provide any substantial response to the

3 Pheko and Others v Ekurhuleni City 2015(5) SA 600 (CC) at 1
4 Badenhorst v Northen Construction Enterprises (Pty) Ltd 1956 (2) SA 346 (T)
assertion of the applicant that a liquidated claim exists and that it was not involved in
any pending litigation . Therefore, the applicant’s claims remain ed unchalleng ed.

[21] Throughout the applicant’s efforts to enforce the debt, the first respondent has
failed to provide any plausible explanation for his failure to satisfy the debt, nor has
he demonstrate d any attempts in favour of paying the debt. In the case of Express
model
trading 289 CC v Dolphin Ridge Corporate5, the court held that any application to
postpone th e granting of the liquidation judgment in the case of a company debtor
could not be granted , in the absence of an adequate explanation for the delay in
paying of the debt.

[22] Similarly, as it is the position in casu, the opposition pr offered by the first
respondent lacks in substance and legal rationale. The argument that it should still
be open for the first respondent to pursue some challenge to this judgment is
untenable , particularly in view of the elapsed time between the default judgment in
November 202 3, and the issuance of the rescission judgment i n November 2024 .
‘Court orders are binding on all individuals to whom they apply , regardless of
whether they were issued correctly or incorrectly . Compliance is required unless
they are formerly overturned .’ 6 It follows that, on the strength of the judgment s
issued in favour of the applicant regarding the same debt , a liquidated claim against
the first respondent has been established on a balance of probabilities, and
consequently, the first respondent is bound by its force an d effect.

Did the first respondent commit an act of insolvency ?

[23] On 4 November 2024, the first respondent met with the Sheriff of this Court
for Riversdale with the writ of execution, demand ing payment of the amount of
R920 500.00 , along with interest and costs , from the first respondent personally. He
informed the Sheriff that he had no money, possessed no property , or disposable
assets with which to satisfy the writ or any portion thereof. The Sheriff also found no

5 Express Model Trading 289 CC vs Dolphin Ridge Corporate 2015 (6) SA 224 (SCA)
6 Secretary, Judicial Commission of Inquiry into allegations of State Ca pture v Zuma and Others 2021
(5) SA 327 (CC) at para 59
disposable property to satisfy the writ . Furthermore, i n an affidavit dated 16 October
2024, the first respondent declared that there was no immovable property registered
in his name and that he owned no immovable property. It therefore became
common cause that the first respondent committed an act of insolvency in terms of
section 8(b) of the Act .

Any reason to believe tha t it will be to the advantage of creditors of the debtor if his
estate is sequestrated ?

[24] The first respondent claimed that he is fa ctually insolvent , with no significant
assets and liabilities . The affidavit of the first respondent dated 16 October 2024 ,
along with his answering affidavit, highlights that was no immovable property
registered in the name of the first respondent. The respondents persisted that
should the provisional sequestration be granted, there will be no advantage to
creditors as there w ere no realisable assets at their disposal. On behalf of the
respondents, it was submitted that the fact that the first respondent had made
commitments to pay a portion of his debt , should not be taken to imply that there
were any disp osable assets from which other creditors would gain an unfair
preferential advantage.

[25] Conversely , the applicant insisted that there will be substantial advantage to
the creditors if an investigation is permitted by means of a provisional sequestration
order. The argument of the applicant emphasised that, to the extent that the first
respondent made various transactions , which inv olved disposing of ownership or
material value from immovable properties associated with him that sufficed to
warrant an investigation into the circumstances that could result in substantial
advantage to the creditors. The applicant also highlighted that SARS and Investec
Bank, as creditors of the first respondent , were unduly advantaged through the
conduct of the first responde nt. The applicant argue d that the first respondent has
demonstrated through his conduct towar ds some of his creditors that should he be
provisionally sequestrated it would be to the advantage of the wider group of
creditors.

[26] The first respondent is also known to be indebted to other creditors. These
include a judgment of the courts under case number 16381/22, wherein an order
was agreed upon by consent of the parties for the payment of R161 238.46 to one
Pieter Andreas Olivier . Another judgment taken in favour of Cronos Capital (Pty)
Ltd, under case number 15237/23 , for a sum of R608 778. The first respondent is
also indebted to the South African Revenue Service for an amount in excess of
R3 000 000.00.

[27] The correct app roach in determining whether a sequestration may yield any
advantage to creditors is well established . In Meskin & Co v Friedman ,7 it was held
that:

“The right to investigate is given, as it seems to me, not as an advantage in
itself, but as a possible means of securing ultimate material benefit for the
creditors in the form, for example, of the recovery of property disposed of by
the insolvent or the di sallowance of doubtful or collusive claims. In my
opinion, the facts put before 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 is none at
all, but there are reasons for thinking that as a result of the enquiry under the
Act some may be revealed or recovered for the benefit of creditors , that is
sufficient .”8

[28] In the given circumstances t he point of departure would be to consider
whether there are realistic prospect s that pecuniary benefit will result to creditors .9
Against the disposition that the first respondent was factually insolvent, regard must
also be had to the timing of the donation of 50% value of immovable property, at no
benefit to him. This donation was processed in August 2023 , following litigation in
pursuit of the claim by the applicant had already been issued . On 01 December

7 Meskin & Co v Friedman 1948 (2) SA 555 (W) at 559
8 Also followed in Stratford and Others v Investec Bank Ltd & Others (CCT 62/14) [2014] ZACC 38;
2015 (3) BCLR 358 (CC); 2015 (3) SA 1 CC; 2015 36 ILJ 583 (CC) (19 December 2014) paragraph
45; Braithwaite v Gilbert (Volkskas Intervening) 1984 (4) SA 717 (W) 718 B; Nutrigrun (Pty) Ltd v
Odendaal & Another (Case No. 5603/2017) HCFS (26 April 2018), paragraph 6.
9 Meskin & Co v Friedman
2023, a week after the default judgment of the 22 November 2023 , the immovable
property of the first respondent was sold to a third party for R12 000 000.00 . From
the mentioned transaction, the first respondent realised proceeds of about
R9 000 000. 00, which remains unaccounted for. The payment of R3 000 000.00 to
Investec Bank to settle the mortgage bond on the same immovable property may
suggest that, despite th e alleged factual insolvency, certain creditors are unfairly
benefiting as their debts are being paid. On the eve of th e hearing for this
application on 15 May 2025, the first respondent made an offer to reach a
compromise in order to pay the R3 000 000.00 debt owed to SARS, one of the
creditors.

[29] The inquiry herein does not focus on the purpose or motivation behind the
donation of partial ownership of his immovable property, without the disposal of the
property itself, and the selective payment of certain creditors .10 The focus here is on
whether the transactions in question occurred more than two (2) years prior to the
sequestration, and if granting provisional sequestration would benefit the creditors.11
Much as SARS is accepted as a preferent creditor , the point remains that it is
unlikely that the first respondent may be without any assets that, if properly
investigated would induce some benefit to the creditors. Furthermore, t he payment
of R3 00 000.00 to Investec B ank, despite the first respondent ha ving other creditors ,
serves as another indication of the need to investigate how Investec Bank was
preferred over other creditors.

[30] The actions of the first respondent, particularly in his interactions with certain
creditors and the manner in which he has disposed of assets potentially linked to
him, do not align with those of a debtor who is factually insolvent. The conduct of the
first respondent towards some creditors also demonstrated t hat if a structured
investigation is not permitted , some creditors may continue to unduly benefit at the
expense of others. Therefore, t he first respondent has demonstrated through his
conduct towards some of his creditors that should he be provisionally sequestrated ,
it would be to the advantage of the larger body of creditors. A provisional

10 The Insolvenc y Act 24 of 1936, Section 26
11 The Insolvency Act 24 of 1936 Section 10 (c)
sequestration continues to be the most appropriate means of ensuring an equitable
material benefit for the entire body of his creditors .12

[31] Upon consideration of the relevant factors and appl ying the legal principles,
the applicant has fully discharged the onus that rested on it to justify granting of the
relief sought in the its notice of motion. The evidence has shown overwhelmingly that
the applicant remains a creditor for a liquidated claim; the first respondent committed
an act of insolvency and that a provisional sequestration of his estate may be to the
advantage of the body of his creditors.

Costs

[32] The applicant seeks an attorney and client costs of this application be costs in
the administration of the insolvent estate of the first respondent . ‘The scale of
attorney and client is an extraordinary one which should be reserved for cases where
it can be found that a litigant conducted itself in a clear and indubitably vexatious and
reprehensible conduct . Such an award is exceptional and is intended to be very
punitive and indicative of extreme opprobrium.’13 If regard is h ad to the nature of the
proceedings at hand, being provisional sequestration , an opportunity may still be
presented to the parties on the return date to have a meaningful ventilation of
relevant issues in determination of costs. Any determination of punitive cost must
have an objective basis as such costs would be justified where there is an extra -
ordinary conduct. Notwithstanding an invitation that the part ies provide
supplementary arguments on the costs order sought by the applicant, this invite did
not receive a positive response. In the circumstances , I am convinced that the most
equitable approach to costs at this stage would be to allow it to stand over for later
determination.

Order

[33] The following order is made :

12 Meskin v Friedman supra
13 Plastics Convertors Association of SA on b ehalf of Members v National Union of Metalworkers of
SA and Others (2016) 37 ILJ 2815 (LAC) at para 46

1. That the estate of the f irst respondent be placed under a provisional
sequestration in the hands of the Master of the High Court.

2. That the rule nisi is hereby issued calling on the first r espondent and all
persons interested to appear and show cause, if any, to this Honourable
Court, on Tuesday 5 August 2025 (Motion Court) as to why an order
should not be granted in the following terms:

a. That the estate of the first respondent be placed under final order of
sequestration; and

b. That the costs stand over for later determination ;

3. That service of the o rder is effected as follows:

a. By the Sheriff on the first and second respondent personally;
b. By the sheriff on the South African Revenue Services Cape Town;
c. By the Sheriff upon the employees of the first respondent (if any)
and any trade unions which represents the employees;
d. By one publication in each of “the Cape Times” and “Die Burger
newspapers; and

4. By sending a copy of this order to all known creditors of the first
respondent , with claims in excess of R20, 000.00 by prepaid registered
mail.


_________________________
SIPUNZI AJ
Acting Judge of the High Court


Appearance s

Counsel f or the applicant : Adv Jean Bence
Instructed by : Koegelenberg Attorneys
41 Vasco Boulevard
Goodwood, Cape Town

Counsel f or the respondent : Adv Claire Cawood
Instructed by : Mr Allan Jones – First Respondent

Date of Hearing: 26 May 2025
Date of Judgment: 3 June 2025

This judgment was handed down electronically by circulation to the parties’
representatives by email.