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IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, PRETORIA
CASE NUMBER: 2025-071547
(1) REPORTABLE: NO
(2) OF INTEREST TO OTHER JUDGES:NO
(3) REVISED.
DATE: 17/07/2025
SIGNATURE
In the matter between:
LAMBERTUS VON WIELLIGH BESTER N.O 1st Applicant
JOHNNY BASSON N.O 2nd Applicant
OCTOX (PTY) LTD (in liquidation) 3rd Applicant
CHRISTIAN FINDLAY BESTER N.O 4th Applicant
LAILA ESSOP N.O 5th Applicant
IMAGINA (PTY) LTD (in liquidation) 6th Applicant
and
GEORGE MICHAEL MAAS N.O 1st Respondent
(Identity Number: 6[...])
(in his capacity as Trustee of BHF Trust)
GEORGE MICHAEL MAAS N.O 2nd Respondent
(Identity Number: 8[...])
(in his capacity as Trustee of BHF Trust)
___________________________________________________________________
JUDGMENT
___________________________________________________________________
MNGQIBISA-THUSI J
[1] The applicants seek on an urgent basis the provisional sequestration of the
BHF Family Trust (“the Trust”). In the alternative, the applicants seek an order
directing the Trust to make payment to the third respondent in the amount of
R12, 140 640.25 and other ancillary relief.
[2] The first and second applicants are the joint liquidators of the third applicant,
Octox (Pty) Ltd. The fourth and fifth applicants are the joint liquidators of the
sixth applicant, Imagina FX (Pty) Ltd. The third applicant was finally liquidated
on 22 January 2021, and the sixth applicant was liquidated on 9 October 2020.
[3] The respondents are trustees in the entity sought to be liquidated, the BHF
Trust (“the Trust”).
[4] The applicants seek the provisional liquidation of the Trust on the basis that the
trust made an impeachable disposition as envisaged in section 26 of the
Insolvency Act 24 of 1936. The alleged impeachable disposition relates to a
payment the second applicant made to the Trust during the period 10 February
2016 to 29 June 2020. The salient grounds upon which the applicants seek the
sequestration of the Trust are the following:
4.1 that the Trust was unable to pay its debts;
4.2 that the Trust had committed acts of insolvency;
4.3 that the sequestration of the Trust will be for the benefit of its creditors.
[5] From the papers filed of record and submissions made by the parties, it appears
that on 25 January 2024, the applicants issued summons against the Trust in
which they seek the setting aside of the alleged unlawful disposition made by the
second respondent to the Trust. The applicants are seeking for an order
directing the Trust to make payment in the amount of R12, 140, 640.25.
[6] The Trust is defending the applicants’ claim and has also filed a counterclaim.
[7] The action proceedings are pending before this court.
[8] The respondents oppose the order sought on the following grounds:
8.1 that the matter is not urgent and should be struck off the roll;
8.2 that the applicants lack locus standi to bring the application;
8.3 that the applicants’ claim has prescribed; and
8.4 that the application is lis pendens.
Urgency
[9] In terms of Uniform Rule 6(12), an applicant is required to set out the
circumstances which justify the hearing of an application on an urgent basis
and the basis on which it contends that it would not obtain substantial redress
at a hearing in due course. The pertinent question is whether the applicant has
set out objective grounds, why the matter is urgent and whether or not the
applicant has explained in their founding affidavit why they cannot get
substantial redress at a hearing in due course.
[10] The first issue to be determined is whether the applicant has set out objective
grounds why the matter is urgent and whether or not the applicant has
explained in its founding affidavit why it cannot get substantial redress at a
hearing in due course.
[11] In East Rock Trading 7 (Pty) Ltd and Another v Eagle Valley Granite (Pty) Ltd
and Others1the court stated the following:
“[6] The import thereof is that the procedure set out in rule 6(12) is
not there for taking. An applicant has to set forth explicitly the
circumstances which he avers render the matter urgent. More
importantly, the Applicant must state the reasons why he claims
that he cannot be afforded substantial redress at a hearing in
due course. The question of whether a matter is sufficiently
urgent to be enrolled and heard as an urgent application is
underpinned by the issue of absence of substantial redress in an
application in due course. The rules allow the court to come to
the assistance of a litigant because if the latter were to wait for
the normal course laid down by the rules it will not obtain
substantial redress.
[7] It is important to note that the rules require absence of
substantial redress. This is not equivalent to the irreparable
harm that is required before the granting of an interim relief. It is
something less. He may still obtain redress in an application in
due course but it may not be substantial. Whether an applicant
will not be able obtain substantial redress in an application in
due course will be determined by the facts of each case. An
applicant must make out his case in that regard.”
[12] In its founding affidavit, in support of its claim that the matter is urgent for the
following reasons. It was submitted on behalf of the applicants that the matter
is urgent and cannot be hears in the ordinary course and that they will be
unable to obtain substantial redress in due course. It is the applicants’
assertion that proceeding to recover the alleged unlawful disposition in the
ordinary course will prejudice the applicants in that the Trust was dissipating its
assets which will make it impossible for the unlawful disposition to be
recovered. Further, it was submitted that the liquidators of the third applicant
recovered. Further, it was submitted that the liquidators of the third applicant
1 (11/33767) [2011] ZAGPJHC 196 (23 September 2011).
only knew about the identity of the Trust during August 2023. Furthermore, it
was submitted that in spite of the pending action proceedings, the respondents
do not have a bona fide defense.
[13] On behalf of the respondents it was submitted that the urgency pleaded by the
applicants is self -created in that although the knew about the identity of the
Trust in 2023 and did not seek the sequestration of the Trust. It was further
submitted that in view of the fact that the applicants have a pending action
wherein the same relief as in the applicants’ alternative relief sought in the
action proceedings, which amounts to an abuse of process. Furthermore, it
was submitted that although the applicants a llege that the assets of the Trust
are being dissipated, the applicants have not provided any evidence in support
of their assertion.
[14] This matter was set down for hearing on 02 July 2025. The question that may
be dispositive of this matter is whether the grounds objectively speaking
warrant an urgent hearing and reasons if any, why the applicants claim they
cannot be afforded substantial redress at a hearing in due course.
[15] The applicants allege as a basis for urgency that the assets of the Trust are
being dissipated and that if the applicants were to await the hearing, possibly
during 2026, of the action they instituted, by the time the matter is finalised
there will be nothing remaining for the Trust’s creditors. Nowhere in its
founding affidavit do the applicants provide evidence of a continued dissipation
of the Trust’s assets.
[16] The urgent application was launched on 21 May 2025 when the respondents
were served and set down for hearing on 01 June 2025. By the applicants own
admission, the liquidators of the third applicant became aware of the identity of
Trust in 2023. The reason proffered for the almost two years’ delay from the
time of gaining the relevant knowledge and the launching of these proceedings
time of gaining the relevant knowledge and the launching of these proceedings
was that there is an ongoing dissipation of the assets of the Trust. There is no
explanation why the application was only lau nched in 2025 and why, if there
was a dissipation of the Trust’s assets, why action proceedings were instituted
during 2024 instead of an urgent application, particularly as the alternative relief
sought by the applicants in this application is the same relief sought in the
action proceedings.
[17] Having read the documents filed and considered submissions made by
counsel, I am of the view that the urgency is self -created and that the applicant
has not shown cause why it will not be able to obtain satisfactory redress in due
course. Having regard hereto, it is not necessary to deal with the merits of this
application.
[18] In the result the following order is made:
18.1 The matter is struck from the roll.
18.2 The applicants are ordered to pay the costs of this application on a
punitive scale, jointly and severally, including the costs of counsel.
18.3 The First, Second, Fourth and Fifth Applicants, in their capacities as
liquidators, are held personally liable for the said costs.
NP MNGQIBISA-THUSI
Judge of the High Court
Gauteng Division, Pretoria
Date of hearing :02 July 2025
Date of Judgment :17 July 2025
Appearances
For Applicants: Adv R. Raubenheimer (instructed by Willemse Potgieter & Babinszky
Inc)
For Respondents: Adv A A Basson (instructed by Jaco Coetzee Attorneys)