SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document in
compliance with the law and SAFLII Policy


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

Case No: 23012/ 2024

In the matter between:

MEL PROPERTIES 100 (PTY) LTD Applicant
(Registration number: 2003/024967/07)

and

NICOLAAS VAN DER WALT First Respondent
(Identity number: 8[...])
Married out of community of property to-

LEE-ANN VAN DER WALT Second Respondent
(Identity number: 8[...])
(Application for the Sequestration of the Estate of the First Respondent and relief
ancillary thereto)
______________________________________________________________________

JUDGMENT DELIVERED ELECTRONICALLY ON 19 AUGUST 2025

__________________________________________________________________

MANGCU-LOCKWOOD, J

A. INTRODUCTION

[1] This is an application for provisional sequestration of the first respondent’s estate
in terms of sections 8(a) 1, 8(b)2 and 8(e) 3 of the Insolvency Act No. 24 of 1936
(“Insolvency Act”). No relief is sought against the second respondent, his wife, to whom
he is married out of community of property. The preliminary issue that has arisen for
adjudication is whether this Court is clothed with jurisdiction to determine the dispute.

[2] The first respondent is described in the papers as a businessman and
restauranteur. He is a director of , amongst others, Tang Hospitality Group (Pty) Ltd,
Tang Hospitality Group Holdings (Pty) Ltd and Tang Waterfront (Pty) Ltd (“the Tang
companies”), all registered in South Africa according to the documents from the
Companies and Intellectual Property Commission ( “CIPC”) which are attached to the
papers. He was involved in the day-to-day running of the restaurant businesses owned
by the Tang companies, at Tang Waterfront Restaurant and Bar in Cape Town ( “Tang
Waterfront”) and Tang Sandton in Johannesburg (“Tang Sandton”).

[3] However, he states that since 19 September 2023, which is just over twelve
months before the instituti on of these proceedings, he emigrated to Dubai, where he
relocated to open another Tang restaurant (“Tang Dubai”), and has since been resident

1 Section 8(a) provides: "A debtor commits an act of insolvency if he leaves the Republic or being out of
the Republic remains absent therefrom, or departs from his dwelling or otherwise absents himself, with
intent by so doing to evade or delay the payment of his debts”.
2 Section 8(b) provides: "A debtor commits an act of insolvency if a Court has given judgment against him
and he fails, upon the 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 made by
that officer that he has not found sufficient disposable property to satisfy the judgment”.
3 Section 8(e) provides: "A debtor commits an act of insolvency if he makes or offers to make any
arrangement with any of his creditors for releasing him wholly or partially from his debts”.

and carrying on business there , and that accordingly, this Court lacks jurisdiction to
determine this dispute.

[4] The relevant background is that on 1 November 2023, the applicant obtained a
court order (under case number 9018/2022) in which the first respondent was ordered
to pay to the applicant an amount of R3,358,210.10, with interest. After the first
respondent unsuccessfully applied for leave to appeal against the court order in this
Court and in the Supreme Court of Appeal, the applicant caused a writ of execution
(“the writ”) to be issued against him on 2 April 2024.

[5] On 26 April 2024 the first respondent, through his then attorneys, proposed
settlement of the judgment debt , by payment of a total amount of R1.5 million in three
tranches of R500,000. The compromise offer was rejected.

[6] During April 2024 the applicant obtained the s ervices of tracing agents to locate
the first respondent for service of the writ. The trace was unsuccessful . T he trace rs
could not confirm an address for the first respondent.

[7] On 9 May 2024 the sheriff served the writ on the first respondent personally at
Tang Waterfront. The return of service indicates that the first respondent failed to satisfy
the writ in full or in part. It also indicates that the first respondent reported that he does
not own any shares at the restaurant and that his address was at 120 Nelson Mandela
Square, Sandton, 2196.

[8] There followed three unsuccessful attempts to execute the writ.

8.1 First, on 14 May 2024 the sheriff attempted to execute at Unit 8 [...] E[...]
Towers, 1 [...] E[...] Place, Sandhurst, Sandton , which is the address
indicated for the respondent in the CIPC documents attached to the
papers. The service was unsuccessful, and the sheriff was informed that
the first respondent “no longer resides at the given address and is believed

to be residing in Dubai [but] is set to return to Johannesburg at Tang at the
end of May 2024”.

8.2 Next, on 2 July 2024 the sheriff attempted to execute at 1[...] K[...] Road,
Sandhurst, Sandton , which the applicant states it believed was the first
respondent’s new abode in Johannesburg. The sheriff’s return records: “the
[first] respondent now resides at Dubai, no assets could be found at the
given address, as they have been shipped in early May. Mr Van Walt
confirmed that he sold his vehicles”.

8.3 Then, o n 24 July 2024 the sheriff attempted to execute the writ at Tang
Waterfront, but the return records that the first respondent was “temporarily
absent”, and the sheriff served the writ on an unidentified male manager at
the premises, who withheld his name.

[9] It was after the last unsuccessful attempt of execution of the writ that this
application was launched , on or about 2 3 October 2024, but no personal service could
be affected on the first respondent , and as a result the applicant applied, in terms of s
9(4A)(iv)4 for the Court to dispense with the furnishing of service upon him.

[10] The applicant’s attorney , Mr Van Der Westhuyzen, has deposed to a service
affidavit in which he explains that, although the papers were served upon the Master
and the South African Revenue Services on 24 October 2024, the service upon the first
respondent proved elusive.

10.1 On 24 October 2024, he sent a copy of the application via e -mail to the
first respondent and to his erstwhile attorney. Although there was no
response from the first respondent, the e-mail was successfully delivered,

4 Section 9(4A)(a)(iv) provides: “When a petition is presented to the court, the petitioner must furnish a
copy of the petition to the debtor, unless the court, at its discretion, dispenses with the furnishing of a
copy where the court is satisfied that it w ould be in the interest of the debtor or of the creditors to
dispense with it.”

as indicated by the delivery report attached to Mr Van Der Westhuyzen’s
affidavit. The erstwhile attorney though , advised that he no longer acted
for the first respondent.

10.2 On 28 October 2024 Mr Van Der Westhuyzen attempted to serve on the
first respondent’s present attorneys, Kokkoris Attorneys, who advised that
they did not , at that stage, hold instructions to rep resent the first
respondent, and only represented the Tang companies.

10.3 On 31 October 2024 the sheriff attempted to serve the application at 3 [...]
N[...] Road, Mouille Point, and the sheriff’s return of service records that
the property was empty and locked.

10.4 On 4 November 2024, Mr Van Der Westhuyzen sent a copy of the
application to a Dubai watsApp address of the first respondent. Although
the watsapp message indicates that it was read by the first respondent, he
failed to confirm receipt when he was asked to do so, and instead blocked
Mr. Van Der Westhuyzen’s account on his watsapp.

[11] On 5 November 2024 Kokkoris attorneys advised by letter dated 5 November
2024 that the first respondent was now resident in Dubai and provided his residential
address to the applicant’s attorneys.

B. JURISDICTION

[12] The question arising is whether this Court is clothed with jurisdiction to adjudicate
the sequestration application in light of the provisions of section 149(1) of the Insolvency
Act which provide as follows:

“(1) The court shall have juri sdiction under this Act over every debtor
and in regard to the estate of every debtor who-

(a) on the date on which a petition for the acceptance of the
surrender or for the sequestration of his estate is lodged with
the registrar of the court, is domiciled or owns or is entitled to
property situate within the jurisdiction of the court; or

(b) at any time within twelve months immediately preceding the
lodging of the petition ordinarily resided or carried on
business within the jurisdiction of the court:

Provided that when it appears to the court equitable or convenient
that the estate of a person domiciled in a State which has not been
designated in terms of section 2 of the Cross -Border Insolvency
Act, 2000 ( Act 42 of 2000 ), should be sequestrated by a court
outside the Republic, or that the estate of a person over whom it
has jurisdiction be sequestrated by another court within the
Republic, the court may refuse or postpone the acceptance of the
surrender or the sequestration.”

[13] As indicated by the stamp of the registrar of this Court, this application was
lodged with the registrar on 23 October 2024. As at that date, the common cause facts
indicate that the first respondent was not resident within the jurisdiction of this Court.

[14] It is not disputed that on 19 September 2023 the first respondent obtained the
status of a resident in Dubai, and in that regard, he has attached a copy of his resident
identity card for that country, and it record s that it was issued on 19 September 2023.
He adds that his wife is also a Dubai resident , and his children have been enrolled in
school in Dubai. He adds that he is due to obtain tax residency in Dubai imminently.

[15] He explains that it was sometime during the middle of 2023 that he and his family
decided to emigrate from South Africa , and that at about the same time he was

approached to open a Tang restaurant in Dubai , which he saw as an opportunity to
facilitate the emigration. In July 2023 , he , together with the board of the Tang
companies made the final decision that he would permanently relocate and divest
himself of day -to-day responsibilities of carrying on the restaurant businesses of Tang
Waterfront and Tang Sa ndton, and that he would set up all the necessary business
structures and facilities in Dubai to secure the opening of Tang Dubai. For that purpose,
it was necessary for him to become a resident of Dubai.

[16] None of these allegations are denied. The facts set out earlier regarding the
unsuccessful service of the writ and of this application confirm the first respondent’s
version regarding his new residence. Save for the writ which was personally served on
him on 9 May 2024, no service could be effected on the first respondent in South Africa.
At every turn, from at least 14 May 2024, the sheriff was informed of Dubai possibly
being the first respondent’s new residence.

[17] The return of 14 May 2024 confirmed that the first respondent “no longer resides
at the given address and is believed to be residing in Dubai, Respondent is set to return
to Johannesburg at Tang at the end of May 2024 ”. Again, in the return of service of 2
July 2024 there was specific mention of the first respondent’s residence in Dubai, where
it is recorded that “the respondent now resides at Dubai, no assets could be found at
the given address, as they have been shipped in early May…”

[18] The general principles to be considered when considering “residence” have been
considered by our courts.5 It involves some degree of permanence, and “some sense of
stability or something of a settled nature” .6 It is a “home, place of abode, the place
where [a person] generally sleeps after the work of the day is done.” 7 But ultimately,
whether a person resides at a particular place at any given time depends upon all the

whether a person resides at a particular place at any given time depends upon all the

5 See Mayne v Main (182/99) [2001] ZASCA 35; [2001] 3 All SA 157 (A); 2001 (2) SA 1239 (SCA) (23
March 2001).
6 Tick v Broude and Another 1973(1) SA 462 (T) at 469 F-G.
7 Ex Parte Minister of Native Affairs 1941 AD 53 at 59.

circumstances of the case seen in the light of the applicable gen eral principles.8 In the
circumstances of this case, the applicant discovered, at the same time that it discovered
that the first respondent had vacated his ordinary residence, that he may have been
residing in Dubai.

[19] Insofar as the sheriff managed to e ffect personal service on 9 May 2024, the first
respondent explains that this was one of the occasions on which he was visiting the
Republic, and when he managed to sell his motor vehicles as reported in the return of
12 July 2024. He admits returning to S outh Africa at times to sort out his movable
assets, visit friends and colleagues and keep up to date with the managers and staff of
the restaurants to ensure that Tang Dubai emulates the same quality standard as the
South African restaurants.

[20] The evidence therefore establishes that the first respondent was resident in
Dubai from at least 19 September 2023. Furthermore, since he had a residence permit
to live in Dubai from that date, the evidence has established that that was his domicile -
the place where, for legal purposes, a person is by law presumed present to be present
at all times.

[21] As regards “ownership or entitle ment to property which is situated within the
jurisdiction this Court”, the first respondent states that he does not own any property -
movable or immovable - within this Court’s jurisdiction. He denies ownership of any
shares in the Tang companies, as does the second respondent.

[22] It is common cause that the first respondent is a director of Tang Waterfront. It is
also common cause that Miramar Holdings (Pty) Ltd, a South African company whose
sole director is the second respondent, holds 50% of the shares in Tang Waterfront.
According to the applicant, this shows that the first respondent has a vested interest in
the three Tang restaurants. The argument in this regard is that the first respondent was

the three Tang restaurants. The argument in this regard is that the first respondent was

8 August and Another v Electoral Commission and Others (CCT8/99) [1999] ZACC 3; 1999 (3) SA 1; 1999
(4) BCLR 363 (1 April 1999) para 24; Mayne v Main para 6.

appointed as Miramar’s sole director on the day of its registration, 10 December 2019,
and when he resigned on 3 August 2020 he was replaced by the second respondent.
The applicant states this is a clear indication that the first and second respondents
have, throughout, had exclusive control of Miramar, that its purpose is to hold the first
respondent’s 50% share or interest in Tang Waterfront. It is moreover highly likely, says
the applicant, that the first respondent not only conducts business within this Court's
jurisdiction as an active director of Tang Waterfront, but that he also owns or is entitled
to property within the jurisdiction of this Court.

[23] The first respondent states that he does not own any shares in any of the Tang
companies or in Miramar Holdings. He also denies that the second respondent owns
any shares in Miramar Holdings, and in this respect his version is confirmed by the
second respondent who has deposed to a confirmatory affidavit . He states he has no
investments or funds in South Africa, and neither does his wife

[24] Whilst the accountant of Tang Waterfront has confirmed that Miramar has a 50%
shareholding in Tang Waterfront, there is no evidence before this Court that the first
respondent is entitled to a vested interest in Tang Waterfront via Miramar. In the
founding affidavit the applicant initially stated that this vested interest in Tang Waterfront
was on account of the first respondent being a director of Tang Waterfront and his wife
being the sole director of Miramar, which in turn holds 50% of the shares in Tang
Waterfront. Even in the founding affidavit, this connection was ten uous and did not rise
to the level of establishing a prima facie case, but in any event, as I have stated, it is
denied by the respondents who deny ownership of any shares in Miramar or Tang
Waterfront.

[25] In the replying affidavit, t he applicant complains that the first respondent has not

[25] In the replying affidavit, t he applicant complains that the first respondent has not
disclosed the full structure by means of which he and the second respondent obtain
pecuniary benefits of Miramar’s 50% shareholding in Tang Waterfront. But the applicant
has not disputed the first re spondent’s version that neither he nor the second

respondent hold shares in Miramar. I n those circumstances, i t is unclear on what basis
Miramar can hold the first respondent’s 50% share or interest in Tang Waterfront.

[26] The inferences sought be to drawn b y the applicant are not supported by any
facts or evidence. The general rule regarding the drawing of inferences is that the
inference that is sought to be drawn must be consistent with all the proved facts; if it is
not, then the inference cannot be drawn.9 If there are no positive proved facts from
which the inference can be made, the method of inference fails and what is left is mere
speculation or conjecture. 10 No evidence has been placed before this Court to refute
the first and second responden ts’ claim that they are not entitled to an interest in Tang
Waterfront, through Miramar.

[27] There remains for consideration whether the first respondent can be said to have
carried on business within the jurisdiction of th is Court within the twelve months
immediately preceding the lodging of the petition, as required in terms of s 149(1)(b).

[28] The first respondent highlights the fact that, since his relocation to Dubai he has
not been carrying on business in South Africa but has been doing so at Tang Dubai
where he is employed as a manager , and his salary from that role is his sole source of
income. He also does not own any shares in the South African companies.

[29] Firstly, it needs to be stated that is possible for a person to carry on business in
more than one district at a time. 11 The fact that the first respondent is carrying on
business in Dubai does not preclude him from carrying on business within this Court’s
jurisdiction.

[30] Secondly, whether an individual is “carrying on a business” is an issue that must
be examined with regard to the factual circumstances , and requires examination of t he

9 S A Post Office v Delacy and Another 2009 (5) SA 255 (SCA) at para 35. R v Blom 1939 AD 188 at 202-
203.

203.
10 See S v Essack & another 1974 (1) SA 1 (A) at 16C -E, quoting Caswell v Powell Duffryn Associates
Collieries Ltd [1939] 3 All ER 722 at 733.
11 Tiger Oats Ltd v Commissioner, South African Revenue Service 2002 (1) SA 146 (T) 152-153.

operations of the person concerned ,12 as does the meaning of “business”.13 As was
stated in Clarensville14, r egard must be had to the activity alleged to constitute a
business, and if the activity amounts to what is normally described as “business” then it
is a business. 15

[31] The first respondent is a restauranteur who previously carried on business in
South Africa through his directorship in the Tang companies, including Tang Waterfront.
Whilst he was previously involved in the day -to-day activities of Tang Waterfront and
Tang Sandton, he is now involved in the day -to-day activities of Tang Dubai. However,
he remains a director over all these restaurants.

[32] There is no suggestion that his involvement in the South African restaurants was
limited to being physically present on a day-to-day basis. He was involved as a director.
Thus, his reliance on the fact that he is no longer involved in the day -to-day activities of
Tang Waterfront, but is involved in those of Tang Dubai, is not sufficient when regard is
had to the nature of his involvement in the companies before relocation. It is in that
context that the applicant points out that nothing precludes him from being in contact
with the personnel and management of Tang Waterfront by electronic means. In other
words, from continuing his involvement in running the business of the restaurants.

[33] The first respondent’s claim that he no longer has a bank account in South Africa
and that he has financially emigrated does not mean he was not carrying on business
within this Court’s jurisdiction during the relevant period. In any event, there are no
details of when exac tly he closed his bank accounts for purposes of determining the
twelve-month timeframe prescribed by section 149(1)(b). Nor are there any details
regarding his tax emigration.


12 Ravfin 1 (Pty) Ltd v The Dunes Partnership (A739/2010) [2011] ZAWCHC 360 (14 September 2011)
para 33.

para 33.
13 Cape Town Municipality v Clarensville (Pty) Ltd 1974 (2) SA 138 (C) at 149F - G.
14 Cape Town Municipality v Clarensville (Pty) Ltd 1974 (2) SA 138 (C) at 149 – 150; See Tiger Oats Ltd v
Commissioner, South African Revenue Service 2002 (1) SA 146 (T) 152-153.
15 Referring to Rolls v Miller (1884) 27 Ch.D. 71 (CA) at page 88). at 148B-C

[34] As regards Tang Waterfront specifically, t he first respondent has been an active
director since registration of that business, on 31 January 2022. Although he states that
his role is now akin to a non-executive director, there are no particularities given and his
version in this regard is vague. In any event, I note that this version does not go as far
as to state with certainty that he is in fact a non -executive director, but that it is ‘akin’ to
one. The overall impression created fr om his version is that he seeks to place a
distance between himself and his involvement in Tang Waterfront and the Tang
companies.

[35] It is telling that, when the board of directors of the Tang entities – which included
the first respo ndent - felt it necessary for the first respondent to divest himself of the
day-to-day responsibilities at Tang Waterfront , they did not feel it necessary for him to
resign as director of Tang Waterfront. He remains in the management of, not only Tang
Waterfront, but all 3 Tang entities. It is in that capacity that he was requested to
spearhead the opening of the new restaurant in Dubai.

[36] Although the Dubai restaurant is to have its own business structure and facilities,
it is clearly linked to the South African entities. This is why, according to first
respondent, he travels to South Africa on occasion to keep up to date with the
managers and staff of the South African restaurants. He states that this is to ensure that
he emulates the same quality standard and service in the Dubai restaurant. That is part
of his management and directorship role, not only in Dubai but also in South Africa. He
is in effect now a director in all the Tang entities.

[37] In Clarensville16 which was decided in this Division, it was held that the “carrying
on” of a business means:

“…there must be either (i) an act of selling or supplying something plus an
intention at that stage to continue selling or supplying as and when opportunity

intention at that stage to continue selling or supplying as and when opportunity

16 See Cape Town Municipality v Clarensville (Pty) Ltd 1974 (2) SA 138 (C) at 151F-152B.

offers for as long as is thought desirable; or (ii) a series of acts of selling or
supplying in circumstances from which this intention can be inferred.”17

[38] What is necessary is a definite intention to carry on the selling or supplying
something or whatever the activity might be similar acts from time to time if opportunity
offers; or the acts must be done not once or twice but successively with the intention of
carrying it on so long as it is thought desirable.18

[39] It is common cause on the facts of this case that the first respondent continues to
be a director in the Tang companies , including Tang Waterfront . There is no doubt that
the purpose of the companies and businesses is to continue to generate an income.
That is the purpose of the first respondent’s continued involvement in all these
companies.

[40] I am accordingly of the view that this Court has the requisite jurisdiction to
adjudicate this matter because the first respondent carried on business within the
jurisdiction of th is Court within the twelve months immediately preceding the lodging of
the petition, as required in terms of s 149(1)(b).

C. THE SEQUESTRATION

[41] Section 10 of the Insolvency Act provides as follows:

“10 Provisional sequestration
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 debtor a claim
such as is mentioned in subsection (1) of section nine; and
(b) the debtor has committed an act of insolvency or is insolvent; and

17 Claresonville 149G-H.
18 Claresonville 149C-D.

(c) there is reason to believe that it will be to the advantage of
creditors of the debtor if his estate is sequestrated,
it may make an order sequestrating the estate of the debtor
provisionally.

[42] In terms of s 10, the applicant is required to establish a prima facie case that the
first respondent has committed an act of insolvency or is insolvent, and there is reason
to believe that it will be to the advantage of creditors of the first respondent if his estate
is sequestrated. I f those circumstances are met , together with those in s 9(1) 19, the
Court may make an order sequestrating the estate of the first respondent provisionally.

[43] It is trite that, in the ordinary course, sequestration proceedings are not to be
used to enforce payment of a debt that is disputed on bona fide and reasonable
grounds.20 Where, however, the respondent’s indebtedness has, prima facie , been
established, the onus is on the respondent to show that this indebtedness is disputed
on bona fide and reasonable grounds. 21 Notwithstanding that the creditor is able to
establish all the elements of the case for sequestration, the court still has a discretion as
to whether or not to grant the provisional sequestration order.22

[44] In these proceedings, the applicant is a judgment creditor of the first respondent
with a liquidated claim against him of R 3 358 210.10, and it is not disputed that it is
entitled to apply for the sequestration of his estate in terms of section 9(1) of the
Insolvency Act. The debt, which is in the form of a court order, is not disputed on the
papers.


19 Section 9(1) provides: “A creditor (or his agent) who has a liquidated claim for not less than fifty
pounds, or two or more creditors (or their agent) who in the aggregate have liquidated claims for not
less than one hundred pounds against a debtor who ha s committed an act of insolvency, or is insolvent,
may petition the court for the sequestration of the estate of the debtor.”

may petition the court for the sequestration of the estate of the debtor.”
20 Badenhorst v Northern Construction Enterprises (Pty) Ltd 1956 (2) SA 346 (T) at 348B; Kalil v Decotex
(Pty) Ltd and Another [1987] ZASCA 156; [1988] 2 All SA 159 (A); 1988 (1) SA 943 (A) (Kalil) at 945E-F.
21 Op cit Kalil at 980C.
22 Section 10 of the Insolvency Act.

[45] As I have already indicated, the applicant relies on the provisions of s ections
8(a), (b) and (e), as acts of insolvency on the part of the first respondent, and they
provide as follows:

“A debtor commits an act of insolvency-

(a) if he leaves the Republic or being out of the Republic remains
absent therefrom, or departs from his dwelling or otherwise absents
himself, with intent by so doing to evade or delay the payment of his
debts;

(b) if a court has given judgment against him and he fails, upon the
demand of the officer whose duty it is to execute that judgment, to
satisfy it or to indicate to that officer disp osable 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;
…
(e) if he makes or offers to make any arrangement with any of his
creditors for releasing him wholly or partially from his debts…”

[46] The first respondent has failed to make payment of any portion of the debt . Since
the personal service of the writ upon him, he has failed to satisfy the judgment or to
indicate disposable property sufficient to satisfy the debt. The conditions of s 8(b) are
accordingly satisfied.

[47] Given the first respondent’s explanation of how his relocation arose , which is not
disputed, it has not been established on a balance of probabilities that his absence from
the Republic is with the intent to evade payment of the applicant’s debt within the
contemplation of s 8(a) of the Insolvency Act . However, it is clear that he relies on the
relocation as a shield from the obligation to pay, and the effect of it has undoubtedly

been evasion and delay in paying the debt. He relocated with full knowledge of the debt
and made no arrangements with the applicant for payment of it.

[48] But even before the relocation, the record establishes that the first respondent
was evading payment through his absences and numerous residential addresses. I
accept that the applicant has failed to explain its attempt to serve at the Mouille Point
address in these proceedings, a lthough I note that the parties were embroiled in
litigation in previous proceedings under case numbers 9144/2019 and 9018/20/22.

[49] However, it is clear from the sheriff’s returns discussed earlier that the first
respondent was evading service . One clear instance is that on 9 May 2024, when
personal service of the writ was effected upon him, he not only failed to mention the
relocation to Dubai, which according to him had already taken place in the previous
year, but he gave the sheriff a residential address of 1 [...] N[...] M[...] square, Sandton
2196. There is no attempt in the papers to explain this apparent falsity. Accordingly, the
requirements of s 8(a) are met in that the first respondent absented himself with the
intent of evading or delaying the payment of his debts.

[50] In addition, on 26 April 2024 he made an offer of compromise through his then
attorneys, for payment of a total amount of R1,5 million in three tranches, which was
rejected by the applicant. The provisions of section 8(e) have accordingly been satisfied
in that he offered to make an arrangement with the applicant for releasing him from his
debt.

[51] I am accordingly satisfied that the first respondent has comm itted acts of
insolvency in terms of ss 8(a), (b) and (e).

[52] As to whether there is advantage to be gained by the creditors, the applicant
states that, d ue to this being a strictly arms -length application, it has no direct
knowledge of the first responden t’s assets and liabilities. However, it argues that there

knowledge of the first responden t’s assets and liabilities. However, it argues that there
is a reasonable prospect that if the estate of the first respondent is sequestrated, the

trustee shall in due course be able to identify and recover substantial assets for the
benefit of all of the first respondent’s creditors. In this regard, the applicant relies on the
fact that the first respondent is an experienced, well-heeled businessman who conducts
business both here and abroad; resides in a luxury polo estate in Dubai which means
he has access to substantial financial resources; is listed as a director in 19 South
African entities ; and houses his business interests in various local entities , some of
which are controlled by the second respondent, and others by himself.

[53] The law requires that the Court must be satisfied from the facts and
circumstances placed before it that there is a reasonable prospect that creditors will
receive some financial benefit. In the oft -quoted case of Meskin23 the court stated as
follows:

“The right of investigation 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 disallowance 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. Ev en if
there are 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…”24

[54] Discussing the above passage, the court in Dunlop Tyres25observed as follows:


23 Meskin & Co v Friedman 1948 (2) SA 555 (W) at 559.
24 See also London Estates (Pty) Ltd v Nair 1957 (3) SA 591(D) at 593C -D; Braithwaite v Gilbert
(Volkskas Bpk Intervening) 1984 (4) SA 717 (W) at B-C.
25 Dunlop Tyres (Pty) Ltd v Brewitt 1999 (2) SA 580 (W), where Leveson J referred to the judgment of

Nicholas J in Klemrock (Pty) Ltd v De Klerk and Another 1973 (3) SA 925 (W) and to the dictum of
Roper J in the Meskin case (supra).

“Taking that passage as my starting point, it will be seen that in the case of
an arm’s length transaction a sequestrating creditor does not have to set
out in its founding affi davits the detail and intensity of averments required
when the nature of the claim is under scrutiny as required by Nicholas J in
the Klemrock case, although a proper case should always be made out. It
will be sufficient if the creditor in an overall view on the papers can show,
for example, that there is reasonable ground for coming to the conclusion
that upon a proper investigation by way of an enquiry under s 65 of the Act
a trustee may be able to unearth assets which might then be attached, sold
and the proceeds disposed of for distribution amongst creditors.”26

[55] Thus, the provisions of s 12(1)(c) of the Insolvency Act will generally be satisfied
if a case is made out that there is a reasonable prospect that the sequestration of the
debtor’s estate will result in some advantage or benefit to creditors . It is not a
requirement to show that the sequestration will in fact be to the financial benefit of
creditors; a court need merely be satisfied that there is reason - good reason - to
believe that it will be so.27 And the belief must be rational or reasonable and, the court
must be furnished with sufficient facts to support it.28

[56] Turning to the facts, as I have already discussed, the papers show that the first
respondent is an experienced, well -heeled businessman who conducts business in
South Africa and abroad.

[57] I also note that the first respondent’s name appears as a director alongside 19
South African entities according to CIPC records, although it is recorded that 8 of the
companies are inactive, whilst he is listed as having resigned from 5 of them. The first
respondent states that, save for the three Tang entities, all the entities have either been
deregistered or are dormant. But contrary to his version, t he CIPC records indicate that

26 Dunlop Tyres at 583F-G.

26 Dunlop Tyres at 583F-G.
27 See also Hillhouse v Stott; Freban Investments (Pty) Ltd v Itzkin; Botha v Botha 1990 (4) SA 580 (W) at
585C-D.
28 Ibid.

he is an active director in the three Tang companies, plus Miramar Entertainment (Pty)
Ltd (not to be confused with Miramar), Billionaire Club Sandton (Pty) Ltd, and Ci rcle
Restaurant (CC). Thus, there are 3 directorships mentioned in the CIPC documents
which are unaccounted for. The discrepancy between the first respondent’s version and
the CIPC records has not been explained.

[58] Although first respondent is living in a l uxury estate, he states that he is renting
and owns no assets in Dubai . At the same time according to his evidence, he sold
and/or disposed of his South Africa n assets to facilitate his relocation , which gives rise
to the p ossibility of assets being available to make payment to creditors. After all, in
April 2024, which was after the first respondent’s relocation, he made an offer to pay an
amount of R1,5m which was to be paid within a total period of 8 months.

[59] For all these reasons, I am of the view that there is good reason to believe that
there is a reasonable prospect that the sequestration of the debtor’s estate will result in
some advantage or benefit to creditors. I have found no reason to exercise this Court’s
discretion against granting this application.

D. ORDER

[60] In the circumstances, the following order is made:

1. The estate of the first respondent is hereby placed in provisional
sequestration in the hands of th e Master of this Court, in terms of the
provisions of the Insolvency Act 24 of 1936.

2. A rule nisi is hereby issued calling upon the first respondent and all
interested persons to show cause, if any, to this Court, on 29 September
2025, why:
(a) the estate of the first respondent should not be finally sequestrated;
and

(b) the costs of this application should not be costs in the sequestration.

3. The service and publication of this order shall be effected as follows:

(a) Service by the sheriff on the first respondent at Kokkoris Attorneys,
R[...] Office Park, Block A, First Floor, 1 [...] J[...] S[...] Avenue,
Parktown North, Johannesburg.
(b) Service on the employees of the first r espondent and any trade
union(s) that may represent the employees, if any;
(c) Service on the South African Revenue Service; and
(d) Service on the Master of the High Court, Cape Town.


_________________________
N. MANGCU-LOCKWOOD
Judge of the High Court


Appearances:

For the applicant : Adv A.R. Newton
Instructed by : BDP Attorneys
F. Van Der Westhuyzen

For the respondents : Adv P. Cirone
Instructed by Kokkoris Attorneys
M. Poyiadjis