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And in the matter between:
NEDBANK LTD Applicant

and

KAYIWA, KAYANJA NAKIRENZI First respondent

MAREE, PATRICK NO Second respondent

KHAN, ISMAIL JAFFER NO Third respondent



JUDGMENT
HA VAN DER MERWE, AJ:

[1] On 25 November 2019 Van der Walt AJ granted an order in an application
brought by Ms Kayiwa for the voluntary surrender of “her” estate (the reason for
the inverted commas should be apparent from what follows below).
[2] What was not mentioned in her founding affidavit in the voluntary surrender
application is that she was married at the time (and still is) to Mr Kayiwa, in
community of property. As the marriage is in community of property, there is only
one joint estate. In order to address this, the trustees appointed by the Master
following Van der Walt AJ’s order (Messrs Maree and Khan NNO) (“the trustees”)
brought an application for an order declaring that the result of that order is that
the joint estate of Mr and Ms Kayiwa was, as a matter of law, sequestrated and
not only Ms Kayiwa’s estate as the order would suggest.
[3] The application by the trustees prompted Mr Kayiwa to bring an application for
the rescission of Van der Walt AJ’s order.
[4] In the midst’s of the trustees’ application for a declaratory order and Mr Kayiwa’s
rescission application, Nedbank Ltd (“Nedbank”) brought an application for the
sequestration of Mr Kayiwa’s estate. On 4 October 2023 a provisional
sequestration order was granted, that was made returnable on 5 February 2024.
The return date was extended to 27 May 2024, but that order lapsed for non -

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appearance on the extended return date, as Mr Matsiela who appeared for
Nedbank conceded. Nedbank’s application is therefore not before me.
[5] What I have before me is Mr Kayiwa’s rescission application and the trustees’
application for a declaratory order. As it is common cause that Mr and Ms
Kayiwa’s marriage is one in community of property, if the rescission application
fails, it follows that the declaratory order should be granted, otherwise the entire
matter would be left in an untenable state of uncertainty. I return to this topic
below.
[6] Mr Kayiwa’s case in the rescission application is framed as one in terms of rule
42. I do not perceive rule 42 to be his appropriate remedy. Sequestration orders,
unlike other orders, do not affect merely the immediate parties to such orders. It
also affects, for instance, the rights of the trustees appointed by the Master and
the creditors of a debtor’s estate. As such, Mr Kayiwa ought to have located his
case in section 149(2) of the Insolvency Act 24 of 1936. The discretion of a court
to set aside an order for the voluntary surrender of an individual’s estate in terms
of section 149(2) is wide enough to also include the grounds on which a
rescission may be obtained in terms of rule 42 and at common law , so to that
extent the identification of the proper remedy is somewhat academic. What is
however important, is to pay attention to manner which our courts considered the
interests of parties other than the immediate parties to an order. For that one
must look to the cases decided under section 149(2).
[7] Mr Mahlanga is undoubtedly correct that Van der Walt’s AJ’s order should not
have been granted. In terms of section 17(4) of the Matrimonial Property Act 88
of 1984, an application for the voluntary surrender of a joint estate must be
brought by both spouses. That is however not the end of the matter.
[8] Section 149(2) of the Insolvency Act is a matter of this Court’s discretion (Storti

[8] Section 149(2) of the Insolvency Act is a matter of this Court’s discretion (Storti
v Nugent 2001 (3) SA 783 (W); Herbst v Hessels NO 1978 (2) SA 105 (T); Asmal
Wholesalers (Pty) Ltd v Dawood; Marshall Industrials ltd 1963 (1) SA 250 (N)).
As pointed out above, i t requires a consideration of the interests of not only the
debtor, but also of the various other parties that may be affected by the setting
aside of a sequestration order. As such, it seems to me that is not as simple as

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Mr Mhlanga argued that if I am satisfied that that requirements of rule 42 are met,
then it follows that that I should grant the rescission application.
[9] It seems to me as if I ought to exercise my discretion against granting the
rescission application. For one, there is nothing in Mr Kayiwa’s affidavits to
suggest that the joint estate is not insolvent. In her founding affidavit in the
voluntary surrender application, Ms Kayiwa sets out “her” (a misnomer of course
since it is now clear that there is only one joint estate) liabilities to come to
R1 130 000, comprising of an immoveable property over which a bond is
registered in favour of Nedbank. It is improbable that the joint estate is without
other assets; however, I am bound to decide the application on the facts
presented by Mr Kayiwa. The liabilities mentioned in her founding affidavit are a
debt owed to Nedbank in the amount of R930 000 and what is referred to as
“convenient creditors”, which in context can only mean concurrent creditors , in
the amount of R 283 000. On her affidavit therefore, “her” estate is insolvent to
the extent of R 83 000. In his affidavit in the rescission application, Mr Kayiwa
does not take issue with these figures. He does not reveal any additional assets
of the joint estate, nor does he have anything to say about the liabilities referred
to in Ms Kayiwa’s affidavit. That being so, on the facts before me, the joint estate
is as insolvent as was presented in Ms Kayiwa’s affidavit.
[10] There are other factors that to my mind militate against granting the rescission
application. Mr Kayiwa’s version is that he learned of Van der Walt AJ’s order
only when the trustees’ application came to his knowledge , during June 2022,
more than two and a half years later. That seems unlikely, but while that is not
impossible, what is more significant is that nowhere does Mr Kayiwa explain what
passed between him and his wife when he did discover that, in his words, she

passed between him and his wife when he did discover that, in his words, she
obtained Van der Walt AJ’s order by fraudulent means. I cannot imagi ne that
there would not have been at least a discussion between Mr and Mr Kayiwa once
he came to know of her fraud, yet he makes no mention of such a discussion.
This lacuna in his version is particularly pertinent in that, as Mr Groenewald (who
appeared for the trustees) argued, in order for Mr Kayiwa to state that his wife’s
application was fraudulent, requires of her to have had the intention to mislead.
Mr Kayiwa states in the affidavit, for instance that the voluntary surrender

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application was “deliberately hidden” from him, apart from his calling that
application fraudulent. For him to be believed therefore, requires of him to have
formed an insight into her intentions, which he could not come to without at least
discussing the matter with her. If not, then Mr Kayiwa’s allegations of fraud are
made without foundation.
[11] Even if the application were to be decided solely on rule 42, it would remain a
matter of a discretion, as Mr Matsiela correctly pointed out.1 Under rule 42 I would
have exercised my discretion in the same way.
[12] As the rescission application is to be dismissed, the declaratory order sought by
the trustees should be granted . Here it is important to keep in mind that it is,
strictly speaking, a misnomer to speak of a person as having been sequestrated.
People are not sequestrated, only ever the estate of a person.2 It is therefore
wrong to approach the matter as if only Ms Kayiwa was sequestrated or that an
order is required for Mr Kayiwa to be sequestrated. The joint estate, being the
only estate in issue, was sequestrated. Thus all the declaratory order sought by
the trustees will do, is to make the sequestration of the joint estate clear.
[13] It is discomforting to allow an order to stand that should not have been granted.
However, discomfort must yield to principle . As there is only one joint estate, in
law, Van der Walt AJ’s order placed the joint estate in sequestration. There is no
question that Van der Walt AJ had the substantive jurisdiction to grant the order.
In the result that order stands until set aside .3 For the order to be set aside, a
proper case must be made out, which Mr Kayiwa has failed to do.



[15] I make the following order:

1 Zuma v Secretary of the Judicial Commission of Inquiry into Allegations of State Capture, Corruption
and Fraud in the Public Sector Including Organs of State 2021 (11) BCLR 1263 (CC) para [53]

and Fraud in the Public Sector Including Organs of State 2021 (11) BCLR 1263 (CC) para [53]
2 Acar v Pierce & Other Like Applications 1986 (2) SA 827 (W) at 829I
3 Department of Transport and others v Tasima (Pty) Ltd 2017 (2) SA 622 (CC) ; Municipal Manager,
OR Tambo Muni v Ndabeni 2023 (4) SA 421 (CC) at para [23] – [27]
[14] As for costs, Mr Groenewald did not seek an order as to costs against Mr Kayiwa
if I am with him, because in the circumstances of this matter, such an order would
be pointless.

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Heard on: 29 July 2025
Delivered on: 31 July 2025

For the applicant in the rescission application , the respondent in application for a
declaratory order and the application brought by Nedbank Ltd: Adv Mhlanga
instructed by Precious Muleya Attorneys.
For the applicants in the application for a declaratory order and the second and third
respondents in the rescission application: Adv J H Groenwald instructed by
Haasbroek & Boezaart Inc.

For Nedbank Ltd: Adv L Matsiela instructed by Van Deventer Dlamini Inc

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