2


[2] The application was heard virtually at 9:30 on the morning of Thursday, 25 July
2024. The creditors that had entered the fray in the court below, represented by
Ms Indhira Naik, were not present in court.

[3] Out of an abundance of caution, as the hearing was about to start, Ms Dineo
Sereko, who ably fulfilled the role of registrar at this hearing, telephoned the
attorney that had represented the creditors. She was told that, owing to a dearth
of money, they would not be represented at the hearing.

[4] The hearing proceeded in their absence.

The facts
[5] On 2 May 2024, this court handed down an order refusing on various grounds
Mr Kullmann’s prayer that his estate be voluntarily surrendered.

The law
[6] The test whether leave to appeal is to be granted is framed in section 17(1) of
the Superior Court Act, 2013:

“17. Leave to appeal
(1) Leave to appeal may only be given where the judge or
judges concerned are of the opinion that –
(a) (i) the appeal would have a reasonable prospect
of success; or
(ii) there is some other compelling reason why the
appeal should be heard, including conflicting
judgments on the matter under consideration;
(b) the decision sought on appeal does not fall within the
ambit of section 16(2)(a); and
(c) where the decision sought to be appealed does not
dispose of all the issues in the case, the appeal
would lead to a just and prompt resolution of the real
issues between the parties.”
[emphasis added]

[7] The applicant does not say whether he brings this application under section
17(1)(a)(i) or (ii). However, the complaints that he raises indicate that he relies
only on section 17(1)(a)(i). Thus, he asks this court for leave on the basis that
“the appeal would have a reasonable prospect of success”.

3


[8] If an applicant shows that the appeal would have a reasonable prospect of
success (and the requirements in section 17(1)(b) and (c) are also met), the court
must grant leave to appeal. The exercise of the power to grant leave is not then
in the discretion of the court.1

[9] The wording of section 17(1)(a)(i) does not set the threshold for leave to appeal
any higher than it was at common law before the promulgation of the Superior
Courts Act, 2013.

[10] In its unreported decision in Ramakatsa v African National Congress ,2 the
Supreme Court of Appeal explained the test for leave to appeal:3

“If a reasonable prospect of success is established, leave to
appeal should be granted. Similarly, if there are some other
compelling reasons why the appeal should be heard, leave to
appeal should be granted. The test of reasonable prospects of
success postulates a dispassionate decision based on the facts
and the law that a court of appeal could reasonably arrive at a
conclusion different to that of the trial court . In other words, the
appellants in this matter need to convince this Court on proper
grounds that they have prospects of success on appeal. Those
prospects of success must not be remote, but there must exist a
reasonable chance of succeeding. A sound rational basis for the
conclusion that there are prospects of success must be shown
to exist.”
[emphasis added]

Analysis of the case for leave
[11] In large measure, the applicant’s case for leave was a repetition of the arguments
advanced at first instance.

[12] The grounds of appeal are marshalled under two heads. First, the applicant
criticises what he characterises as various factual findings. Then, he attacks
various findings of law, as he calls them.


1 Erasmus Superior Court Practice, vol 1, A2-54.
2 (724/2019) [2021] ZASCA 31 (31 March 2021).
3 At para 10.

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[13] Under the rubric of factual findings, the applicant first criticises the court’s finding
that it was not in the interests of justice to admit the applicant’s late delivery of a
sworn valuation in the absence of an application for condonation.

[14] That is, of course, no factual finding properly so called. Rather, it is a ruling that,
without an application for condonation, the court would not exercise the
discretion granted to it by rule 27 to allow th e belated ly submitted sworn
valuation. It would not be in the interests of justice to do so.

[15] The judgment makes it plain that the court was uncomfortable with the manner
of the production of the sworn statement. Not only was condonation not sought
– which is no mere formality, but requires the litigant in question to go on oath
carefully and in de tail – but the court was wholly in the dark over “ the process
that led to its production at beyond the eleventh hour”.

[16] In his notice of appeal, the applicant tries to make a virtue out of the fact that the
sworn valuation “ did not differ materially from the value set out in the estate
agent’s valuation attached to the founding affidavit in any event ”. He says that
“therefore the figures set out in the founding affidavit can still be relied upon ”.
Yet, nearly two years passed between the two dates. It is hard to accept the
soundness of the earlier valuation without more : while there might be an
explanation for the fact that there was no change, t hat explanation is not
advanced. The court found the business of the valuation of the immoveable
property to be unsatisfactory. It was obviously unsatisfactory.

[17] What is more, the applicant seeks to minimise the court’s finding that it is
important that there be compliance with the rules governing applications of this
type so that all creditors might from the outset have a full and accurate picture of
the applicant’s financial state.

the applicant’s financial state.

[18] The simple fact is that there ought to be compliance with the rules. While the
court might indeed grant condonation in the absence of an application for it, that
should be only in truly exceptional circumstances. There are no such
circumstances present here.

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[19] What the applicant does not, however, attack is the further finding of the court
that, even if the sworn valuation had been received, the outcome of the
application would have been no different.

[20] In my considered view, a court of appeal could not on this ground reasonably
arrive at a conclusion different to that of the trial court.

[21] The second factual finding of the court that the applicant attacks is its criticism
that the founding affidavit did not set out his assets with sufficient particularity.
There was no sworn valuation of the applicant’s furniture. The applicant did not
disclose how his legal fees were being paid.

[22] The applicant conceded that, while his furniture was not accompanied by a sworn
valuation, it is clear that his primary asset, which comprised almost his entire
estate, was the immoveable property and that the benefit to creditors could still
be calculated based on the figures provided for that. The applicant contended
that he still satisfied the requirements of section 6(1) of the Insolvency Act.

[23] Yet, in the light of the view that I take above over the late delivery of the sworn
valuation of the applicant’s immoveable property, this argument ill assists him.

[24] In sum, upon a careful consideration of the founding affidavit, it was not marked
by the level of candour that allowed the court to appraise the financial position of
the application with much confidence.

[25] In my considered view, a court of appeal could not on this ground reasonably
arrive at a conclusion different to that of the trial court.

[26] The third factual finding of the court that the applicant criticises is the finding that
the applicant could not truthfully have advanced the argument that his brother
was also, jointly and severally, liable to pay his litigation costs and that creditors
might, therefore, also attach and sell his immoveable property. This, the court
found, was less than candid since the applicant’s brother in question was, at the

6

time of the making of the founding affidavit, himself seeking voluntarily to
surrender his estate.

[27] The applicant argues that there is nothing “inherently false” about that statement
and that “ the body of creditors between both the applicant and his brother is
almost identical, especially when considering the unsecured creditors”. Yet, what
this contention leaves entirely out of account is that, in circumstances where the
applicant’s brother was seeking to surrender his own estate, it was his own
creditors’ demands that would through that process be met. The fact that there
was a similarity in the body o f creditors does not undo the fact that, were the
applicant’s brother’s estate to have been surrendered, nothing from his estate
would logically have remained to satisfy his joint and several liability with the
applicant.

[28] In the circumstances, it was directly relevant to the applicant’s application for
voluntary surrender that his brother had set a parallel process of voluntary
surrender in train. Accordingly, there is no basis upon which to criticise the court’s
finding in this regard.

[29] In my considered view, a court of appeal could not on this ground reasonably
arrive at a conclusion different to that of the trial court.

[30] The fourth factual finding that the applicant criticises is th e finding that he had
failed to demonstrate on a balance of probabilities that his estate was insolvent
or that it would be to the advantage of creditors that his estate be sequestrated.

[31] For the reasons set out in the judgment, some of which are adumbrated above,
the court did not have sufficient confidence that the full picture concerning the
applicant’s estate had been failry presented to it. Accordingly, it was justified in
finding that the applicant had not on a balance of probabilities demonstrated
those two requirements.

[32] In my considered view, a court of appeal could not on this ground reasonably

[32] In my considered view, a court of appeal could not on this ground reasonably
arrive at a conclusion different to that of the trial court.

8

Date of hearing: 25 July 2024
Date of judgment: 13 August 2025

APPEARANCES

For the first applicant: Advocate Tyrone Lautré
Instructed by: Kaveer Guiness Inc.