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REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, PRETORIA
Case Number: 044880/23
(1) REPORTABLE: YES / NO
(2) OF INTEREST TO OTHER JUDGES: YES/NO
(3) REVISED: YES/NO
DATE : 09/06/2025
SIGNATURE
In the matter between:
THE BODY CORPORATE CHATEAUX MARIE Applicant
and
GIFT MANZUNGU SHUMBA Respondent
Delivered: 09 June 2025 . This judgment was prepared and authored by the Judge
whose name is reflected and is handed down electronically by circulation to the
parties and their legal representatives via email and by uploading it to the electronic
file of this matter on Caselines.
JUDGMENT
Moila , AJ
Introduction
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[1] This is an opposed application for a final sequestration order against the
respondent following a nulla bona return . The provisional order was granted against
the respondent on 8 February 2023. The respondent opposes the granting of a final
order, arguing that it would not benefit his creditors. He asserted that he is
committed to selling one of his properties to repay the outstanding amounts owed to
the applicant and other creditors.
[2] It is common cause that the applicant has a claim against the respondent and
that the respondent has committed an act of insolvency.
Parties
[3] The applicant is the Body Corporate Chateaux Marie , a legal entity established
in terms of the Sectional Title Schemes Management Act 8 of 2011 (the Sectional
Title Schemes Management Act) for the scheme known as Chateaux Marie . Its
principal office is situated at c/o Huurkor Admin (P ty) Ltd, 3[...] H[...] Street, Hatfield,
Pretoria, Gauteng.
[4] Huurkor Admin (Pty) Ltd is a company that, among other things, provides
management services to corporate bodies . It has been appointed as the managing
agent to oversee the applicant's affairs . The responsibilities of the managing agent
encompass the collection of monthly contributions to the applicant's administrative
fund, which are to be paid by the members in accordance with section 3(1) of the
Sectional Title Schemes Management Act. This process is conducted with the
assistance of Rousseau and Rousseau Attorneys .
[5] The respondent is Gift Manzungu Shumba , an adult male , whose domicilium
citandi et executandi is at Unit 1 […] (Door No: 2 […]) Chateaux Marie, 6[...] P[...]
Street, Sunnyside, Pretoria, Gauteng . He appears in person.
Factual Background
[6] The applicant is responsible for enforc ing the management rules referred to in
section 10 of the Sectional Title Schemes Management Act on the owners of the
units within the scheme.
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[7] The respondent is liable for levies and associated charges payable in respect
of his unit, in terms of the Sectional Title Schemes Management Act, which amount
is payable to the applicant on the 7th of each month. He is also liable for the payment
of the monthly levy contribution to the Community Schemes Ombud.
[8] An action was instituted against the respondent for unpaid levies and
administration fees for his unit in the Magistrate ’s Court for the District of Tshwane
Central , held at Pretoria Central , under case number 3367/2022 . The judgment was
granted on 25 April 2022 in favour of the applicant for:
(a) Payment in the amount of R10 432.30 ;
(b) Interest at 20 % per annum , calculated from 11 February 2022 to the
date of payment; and
(c) Costs of the suit to be taxed.
[9] The applicant’s attorneys of record instructed the sheriff to execute the
warrant at the respondent's domicilium address . However, t he sheriff could not
locate the respondent at the given address. The premises were occupied by Mr
Chrispen Nyasha.
[10] The applicant's attorneys instructed AEJ Tracers to locate the respondent. A
trace report dated 19 July 2022 indicated that the respondent's current address is
Unit 3 […], G[…] Flats, 2 […] J[…] Street, Arcadia, Pretoria. However, the sheriff was
unable to execute the warrant, as the respondent was not located at that address.
[11] The AEJ Tracers identified another address at Unit 8[...] D[...] , 2[...] J[...] M[...]
Street, Muckleneuk, Pretoria, as an address of the respondent. On 10 October 2022,
the sheriff was unable to execute the warrant of execution on this address because
the property was empty.
[12] On 16 November 2022, another address was identified at Stand 1 […], S[…]
0[…]. The sheriff could not execute the warrant because the property was locked. On
24 January 2023, AEJ Tracers reported that they had exhausted all available
resources and could not locate the respondent .
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[13] The applicant’s attorney employed the service s of two other tracers, but they ,
too, failed to locate the respondent. As of 19 April 2023, the outstanding balance f or
unpaid levies and administration fees for the immovable property was R 45 461.92 .
[14] Leave was granted in terms of section 11(2) of the Insolvency Act to serve the
notice of motion and founding affidavit by substituted service , as per an order dated
21 August 2023 by Justice Millar. On 18 October 2023 , the notice of motion and
founding affidavit were served on the respondent by way of SMS, email, and
physical at his domicilium address.
[15] The notice of motion and founding affidavit were also served to the South
African Revenue Service, the Master of the High Court and the registered
bondholder, Standard Bank .
[16] On 14 February 2024, the estate of the respondent was placed under
provisional sequestration by Moshoana J. The respondent was ordered to show
cause on 19 April 2024 , why a final sequestration order should not be granted .
Leave was granted in terms of section 11(2) of the Insolvency Act 24 of 1936 to
serve the provisional order by the manner of substituted service as per the court
order granted by Justice Millar on 21 August 2023.
[17] The provi sional sequestration order was served on Standard Bank, the
Receiver of Revenue and The Master of the High Court.
Applicant ’s submission
[18] Applicants' Counsel , Mr Broodryk, submitted that the respondent had
committed an act of insolvency as per section 8 of the Act. Counsel submitted that
the respondent, in his answering affidavit, sets out reasons for his indebtedness and
inability to pay some of his creditors.
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[19] Mr Broodryk contended that, as seen from the property search, the
respondent’s unit is registered in favour of Standard Bank, illustrating favour shown
to one creditor over another.
[20] Counsel further submitted that t he respondent is evading his creditors in an
attempt to circumvent and frustrate their claims, as illustrated by the report of the
tracing agents and Sheriff’s returns.
[21] Applicant’s Counsel finally submitted that with regard to the aforesaid property
valuation, there will be an advantage for prospective creditors of the respondent.
Counsel submitted that t he applicant has tendered security at the Master’s office and
that t he respondent has failed to proffer any defence opposing the applicant’s
application for his sequestration. The applicant is entitled to the relief it seeks, being
the final sequestration.
Respondent’s Submissions
[22] As a defence to the sequestration application, t he respondent contends that
he was single , with six minors and two adult dependants . He is employed at Enza
Construction (Pty) Ltd, earning a net salary of R 51,020.48 per month . He submitted
further that he had arrange d monthly pay ments with most creditors , including :
a) RCS
b) Diners Club
c) Direct Axis SA (Pty) Ltd
d) First National Bank (A Division of First Rand Limited)
e) Nedbank Limited
f) S A Home Loans (Pty) Ltd
g) Sanlam Personal Loans
h) Standard Bank of South Africa Limited
i) Wesbank (A Division of First Rand Limited)
j) Telkom .
[23] The respondent averred that he initially appointed VIP Rental agency to
manage his properties and they stole money from the tenants. He changed the rental
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agency to Pretor Property , to manage rental s of his properties , both Chateaux Marie
205 and Gloria 408 and pay levies to both Body Corporates . However , due to
tenants' non-payment , all levy accounts are in arrears.
[24] The respondent further submitted that he is committ ed to sell ing his third
property at Sunnyside Gardens to repay all his creditors and is seeking to undergo
debt counselling to establish a repayment plan for all creditors.
Issue for determination
[25] From the above discussion, this court is enjoined to consider whether the
applicant provide d sufficient evidence to satisfy the requirements of section 12 of the
Insolvency Act,24 of 1936 , that the respondent is insolvent?
Legal Principles and discussions
[26] Section 8 of the Insolvency Act serves as a tool for creditors to compel the
sequestration of a debtor's estate, even without prov ing the debtor's actual inability
to pay their debts . In terms of section 8, the debtor commits an act of insolvency if:
a) The debtor leaves the Republic or departs from his dwelling or
otherwise absents himself with intent to evade or delay the payment
of his debts.
b) The debtor cannot satisfy the judgment granted against them, and the
Sheriff finds no property to attach and execute to satisfy the
judgment.
c) Debtor conceals or disposes of property with the intent to defraud
creditors.
d) Debtor removing property with the intention of prejudicing creditors
e) Debtor fails to comply with a court order for the surrender of their
estate, even if they are capable of doing so.
f) Debtors give written notice to creditors that they are unable to pay
their debts.
g) The debtor is a trader who has given notice in the Gazette in terms of
section 34 (1) and is, therefore, unable to pay all his debts.
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h) The Debtor, being a trader, unable to pay debts after notice of transfer
of business
[27] Section 12 of the Insolvency Act deals with the final sequestration or
dismissal of a petition for sequestration. It outlines the procedures after a provisional
sequestration order is made, determining whether to proceed with final sequestration
or dismiss the petition . The section provides: -
a) Final Sequestration:
If the court is satisfied that the estate should be sequestrated, it will
issue a final sequestration order. This order makes the sequestration
official and irrevocable.
b) Dismissal of Petition:
If the court is not satisfied that the estate should be sequestrated, it will
dismiss the petition. This means the sequestration proceedings are
terminated, and the debtor's estate remains unaffected. ’
Requirements for a final order of sequestration
[28] In terms of section 12(1) of the Act , the applicants must satisfy this court that:
12(1)( a) they have established a liquidated claim against the respondent
of not less than R100,00;
12(1)( b) the respondent has committed an act of insolvency or is , in fact ,
insolvent; and
12(1) c) there is reason to believe that it will be to the advantage of
creditors if the respondent’s estate should be sequestrated.
[29] It is trite that t he applicants bear the onus of proof in respect of each of these
requirements . In this case, the sheriff of the court had searched for movable
properties to satisfy the debt and found none .
[30] The applicant , in his replying affidavit, submitted that the respondent’s
defence be struck off due to non -compliance with the rules of the court. However, t he
applicant condoned this failure by filing a replying affidavit. The Rules of the Court
are just there for procedural fairness. In my view, t he applicant will not be prejudiced.
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[31] I agree with the applicant’s version that , based on the respondent ’s own
version, he is over -indebted and unable to meet his obligations. I nitially, upon issuing
the application for sequestration of the respondent, the respondent committed an act
of insolvency as defined in section 8(a) of Act 24 of 1936, in that he absented himself
from his dwelling with intent to evade or delay payment.
[32] It is evident that t he respondent f urther admit ted that he could not pay his
debts due to reduced salary , non-paying tenants , and a high number of dependents .
The Sheriff had f ound no propert y to attach and execute to satisfy the judgment ,
which constitute another act of insolvency in terms of section 8 (b) of the Act.
[33] By failing to list the applicant among the creditors to whom payments were
offered, the respondent further constitut ed another act of insolvency in terms of
section 8 (c) of the Act . He attempt ed to prefer some creditor s above othe rs.
[34] In Sumsudin and another v De Villiers Berange NO (170/05) [2006] SCA 79
@para 41 , the court referred to Schlemmer v Mehnert 1908 25 SC 782 and Joosub
v Soomar 1930 TPD 773 -that an applicant for sequestration is entitled to rely on the
commission of an act of insolvency albeit that he only became aware of it after the
commencement of the sequestration proceedings.
[35] I am satisfied that the applicant has established that the respondent has
committed acts of insolvency . The provisional sequestration order was granted on 8
February 2023. If the respondent wanted to sell one of his properties , he had ample
time to do so from February 2023 to May 2025. There is no explanation why that was
not done.
Advantage to Creditors
[36] The only remaining issue is whether it is to the advantage of creditors for this
court to grant a final order of sequestration. In considering whether sequestration will
benefit creditors , the court must, of course, have regard to the facts and
circumstances placed before it in the sequestration application. Only if it is satisfied,
on a balance of probabilities, that there is a reasonable prospect that creditors will
receive some financial benefit will it consider granting a final order of sequestration.
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[37] In Meskin & Co v Friedman 1948 (2) SA 555 (W) at 559, Roper J stated:
“The right of investigation is granted, as it seems to me, not as an advantage
in itself, but as a possible means of securing ultimate material benefit for
creditors in the form, for example, of recovering property disposed of by the
insolvent or disallowing doubtful or collusive claims.
The facts presented to the Court must demonstrate a reasonable prospect –
not necessarily a likelihood, but a prospect that is not too remote – that some
pecuniary benefit will accrue to creditors. Even if there are none at all, 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. ”
[38] The respondent submitted that the court should refuse the application and
allow him to proceed with debt review. In First rand Bank v Evans 2011, 4 SA 597
(KZD) at Para 25, the court stated that “consequently, a creditor may proceed with
sequestration proceedings and the mere fact that the debtor preferred debt review as
the solution to his or her financial problems appears to be irrelevant when the court
has to decide whether a sequestration order should be granted or not.
[39] I am satisfied that the respondent is over -indebted , and the applicant has
discharged the onus to establish that the respondent committed acts of insolvency in
terms of sections 8(a),8(b) 8© and of the Insolvency Act 24 of 1936 . I am further
satisfied that the applicant proved that the final sequestration would be to the
advantage of creditors .
Costs
[40] The applicant has been successful in obtaining the relief he sought and is
accordingly entitled to their costs.
Order
[41] I therefore make the following order:
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1. The rule nisi dated 8 February 202 4 is hereby confirmed .
2. The respondent's estate is finally sequestrated and placed in the hands of
the Master of the High Court.
3. Costs of this application are to be costs in the sequestration on scale A.
N.L MOILA
ACTING JUDGE OF THE HIGH
COURT
GAUTENG DIVISION , PRETORIA
FOR THE APPLICANT: ADVOCATE DUAN BROODRYK
INSTRUCTED BY ROUSSEAU AND ROUSSEAU ATTORNEYS , INC
RESPONDENT : IN PERSON
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