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[2025] ZAKZPHC 61
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Tower Property Fund Limited v Burgczak (5663/24P) [2025] ZAKZPHC 61 (3 April 2025)
IN
THE HIGH COURT OF SOUTH AFRICA
KWAZULU
NATAL DIVISION PIETERMARITZBURG
CASE
NO
: 5663/24P
REPORTABLE:
YES/NO
OF
INTEREST TO OTHER JUDGES: YES/NO
REVISED:
YES/NO
DATE:
SIGNATURE
Before:
Honourable Ncube J
In
the matter between:
TOWER PROPERTY FUND
LIMITED
Applicant
and
MAREK STEFAN
BURGCZAK
Respondent
ORDER
1.
The Respondent’s application for condonation of late delivery
of his answering affidavit is dismissed.
2.
The Respondent’s estate is placed under provisional
sequestration in the hands of the Master of
the High Court,
Pietermaritzburg.
3.
The Respondent and all other interested parties are called upon to
show cause, if any, to this court
on 22 May 2025 at 09h30, or so soon
thereafter as Counsel may be heard, why-
3.1 the estate of
the Respondent should not be placed under final sequestration and
3.2 the
Respondent’s attorneys should not pay the costs in respect of
the application for condonation of the late delivery
of the
Respondent's answering affidavit
de bonis propriis.
4.
Service of the provisional sequestration order is to be effected on
4.1 The Respondent
personally
4.2 The South
Africa Revenue Services.
Heard:
13 March 2025
Delivered
:
This judgment was handed down electronically by circulation to the
parties’ legal representatives via e-mail. The
date and time
for hand-down is deemed to be 12h00 on
03
April 2025
.
JUDGMENT
NCUBE
J
Introduction
[1]
This is opposed application in which the Applicant seeks an
order for the provisional sequestration of the Respondent’s
estate. On the other hand the Respondent seeks condonation for
the late filing of his answering affidavit. The application
for
condonation is also opposed. I shall start with the application
for condonation.
Application
for Condonation
[2]
The Respondent has applied for condonation of late filing of
both the answering affidavit and Heads of Arguments.
The
application for condonation of late filing of Heads of Argument was
not opposed and it was granted immediately during argument.
However, the application for condonation of the late filing of the
answering affidavit is opposed. In an application for
condonation the applicant must show good cause for the delay.
The Respondent’s answering affidavit was due on 10 June
2024
but was delivered on 5 August 2024, almost two months late.
Requirements
for condonation
[3]
The Respondent must show good cause for the delay in order to
persuade the court to exercise its discretion in his
favour. In
Melane
v Santam Insurance co. Ltd
[1]
Holmes
JA expressed himself in the following terms:
“
In deciding
whether sufficient cause has been shown, the basic principle is that
the court has a
discretion to be exercised judicially upon a consideration of all the
facts and in essence it is a matter of fairness
to both sides.
Among the facts usually relevant are the degree of lateness, the
explanation therefor, the prospects of success,
and the importance of
the case. Ordinarily these facts are interrelated; they are not
individually decisive, for that would
be a piecemeal approach
incompatible with a true discretion, save of course that if there are
no prospects of success there would
be no point in granting
condonation. Any attempt to formulate a rule of thumb would
only serve to harden arteries of what
should be a flexible
discretion. What is needed is an objective conspectus of all
the facts. Thus, a slight delay and
a good explanation may help
to compensate for prospects of success which are not strong.
Or the importance of the issue
and strong prospects of success may
tend to compensate for a long delay. And the respondent’s
interest in finality
must not be overlooked. I would add that
discursiveness should be discouraged in canvasing the prospects of
success in the
affidavit.”
[4]
As mentioned earlier, in this judgment, the answering affidavit was
late by two or three months. The explanation
for the delay is
important. The explanation tendered by the Respondent is that
his attorneys could not attend to the drafting
of his answering
affidavit on time as they had another commitment. The attorneys
had to attend to another matter at Mamelodi
Magistrate Court to
defend the son of a personnel member who was charged with the offence
of Culpable Homicide. The Respondent
states on paragraph 15
of his affidavit in support of his application for condonation that “
a young man’s life on trial may be as more significant
events than Respondent
” this statement by the Respondent
implies that the drafting of his answering affidavit was not
important and it could wait,
until the attorneys are done with the
criminal case in Mamelodi. That is ridiculous. In
paragraph 16 of the same affidavit
the Respondent states that apart
from drafting his answering affidavit, the attorneys were also
involved in the finalisation of
other trials and arbitration.
[5]
Clearly, according to what the Respondent says in his affidavit, the
drafting and finalisation of his answering
affidavit was not
important, and it could wait until the attorney was done with other
duties. That is highly unacceptable
if the attorney is engaged
with other duties, he should not accept the instruction to represent
the client, if he cannot diligently
discharge his duties towards the
client. It is also telling that there is no confirmatory affidavit
from the attorney concerned.
There is no reasonable court,
which can accept this explanation. In any, event the respondent
does not have reasonable prospects
of success on the main
application.
Application
for a provisional sequestration
[6]
It is important to note that in these proceedings the applicant is
merely seeking an order for a provisional sequestration
of the
Respondent’s estate. It is not an application for the
final sequestration of his estate.
[7]
On 28 November 2022, the Applicant obtained judgment against the
Respondent for payment of R 4 001 328.85 with interest
and costs as
between attorney and own client. The Respondent applied for
leave to appeal the judgment. That application
was refused.
The Respondent petitioned the Supreme Court of Appeal. The
petition was also refused. The Applicant
executed against the
Respondent by way of a writ. The Respondent informed the
Sheriff that he was unable to pay the judgment
debt in full or in
part. The Sheriff has filed a
nulla bono
return.
[8]
At the present moment, the Respondent is the Director of Twelve (12)
companies. Before the judgment was obtained
on 28 November
2022, the Respondent was the Director of 17 companies, and he
resigned as a Director of five (5) companies.
Although the
Respondent has resigned his Directorship position, he must possibly
still be a shareholder in those companies.
Issues
[9]
The Respondent denies that he is indebted to the Applicant. He
also denies that he has committed an act of
insolvency and he further
contends that the sequestration of his estate will not hold any
advantage for his creditors.
Discussion
[10]
It is undisputable fact that the Applicant obtained
judgment against the respondent. The Respondent has exhausted
all legal avenues available to him. The Judgment debt remains
unsatisfied, as according to the Sheriff, the Respondent has
failed
to indicate to the Sheriff, property which is sufficient to satisfy
the judgment debt.
[11]
Section 8(b) of the Insolvency Act
[2]
the Act provides:
“
8 A
debtor commits an act of insolvency-
(b) if a
court has given judgment against him and fails, upon the
demand
of the officer whose duty it is to execute that judgment,
to
satisfy it or to indicate to the 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
with judgment”
In
Casu
there is no dispute that the Sheriff has filed a
nulla bono
return. Therefore, the Respondent has committed an act of
insolvency as contemplated in Section 8(b) of the Act.
[12]
The Applicant is a creditor of the Respondent, and it has a
liquidated claim against the Respondent of not less
than R100.00.
The sequestration of the Respondent’s estate will hold
advantage for his creditors.
Order
[13]
In the result, I make the following order:
1.
The Respondent’s application for condonation of late delivery
of his answering affidavit is dismissed.
2.
The Respondent’s estate is placed under provisional
sequestration in the hands of the Master
of the High Court,
Pietermaritzburg.
3.
The Respondent and all other interested parties are called upon to
show cause, if any, to this court
on 22 May 2025 at 09h30, or so soon
thereafter as Counsel may be heard, why-
3.1 the estate of the
Respondent should not be placed under final sequestration and
3.2 the Respondent’s
attorneys should not pay the costs in respect of the application for
condonation of the late delivery
of the Respondent's answering
affidavit
de bonis propriis.
4.
Service of the provisional sequestration order is to be effected on
4.1 The Respondent
personally
4.2
The South Africa Revenue Services
NCUBE
J
Judge
of the High Court of South Africa
Kwazulu-Natal
Division
Pietermaritzburg
Appearances:
For
the Applicant :
Adv
Schaup
Instructed
by :
Cliffe
Dekker Hofmeyer
11
Buitengracht Street
Cape
Town
Tel:
021 481 6396
For
the Respondents:
Adv
Mthalane
Instructed
by :
Manley
Manleys Inc
179
Mackenzie Steet
Brookyln
Pretoria
Tel:
012 346 3388
Heard:
13 March 2025
Delivered on:
03 April 2025
[1]
1962(4)
SA 531 (A) at C-F
[2]
Act
No 24 of 1936