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REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, PRETORIA
Case Number: 2023-003795
(1) REPORTABLE: YES / NO
(2) OF INTEREST TO OTHER JUDGES: YES/NO
(3) REVISED: YES/NO
DATE: 20 AUGUST 2025
SIGNATURE
In the matter between: -
NOTEFULL 1122 (PTY) LTD APPLICANT
and
MICHAEL BAKER N.O
(IN HIS CAPACITY AS EXECUTOR OF THE
LATE ESTATE THOMAS CHARLES BARKER) 1st RESPONDENT
MASTER OF THE HIGH COURT
JOHANNESBURG 2nd RESPONDENT
REGISTRAR OF DEEDS, PRETORIA 3rd RESPONDENT
SUSANNA TINTINGER N.O. INTERVENING PARTY
(IN HER CAPACITY AS THE
LIQUIDATOR OF THOMAS
MAXWELL KITHCEN (PTY) LTD
(in liquidation)
Case number: 42617/2017
And in the matter between:
SUSANNA TINTINGER N.O. APPLICANT
(IN HER CAPACITY AS THE LIQUIDATOR OF
THOMAS MAXWELL KITHCEN PTY LTD
(In liquidation)
and
MICHAEL BARKER N.O.
(IN HIS CAPACITY AS EXECUTRIX OF
THE LATE ESTATE THOMAS
CHARLES BARKER) 1st RESPONDENT
NOTEFUL 1122 (PTY) LTD 2nd RESPONDENT
JUDGMENT
Van Aswegen AJ
INTRODUCTION:
[1] In this matter there are two distinct applications:
[1.1] Case number 2023 -003795 concerns an application to transfer
Sectional Unit 5[…], G[…] Park ([…] T[…] Ave, Sunninghill, scheme no.
470/1990) (“the property ”) from the estate of the deceased, Thomas
Charles Barker , (“the deceased’s estate”) to the Applicant. This
application was instituted on 30 April 2021.
[1.1.1] The Applicant asserts that it purchased the property in
January 2000 from the deceased ; however, transfer of
ownership was never effected.
[1.1.2] Michael Barker, the First Respondent and brother of the
deceased, is the appointed executor of the estate and does
not oppose the relief sought.
[1.1.3] The Fourth Respondent, who opposes the property transfer,
is the liquidator of Thomas Maxwell Kitchens (Pty) Ltd [in
liquidation] (“TMK”), wh ere the deceased was the sole
director. The liquidator is responsible for collecting all claims
for the insolvent estate.
[1.1.2.1] The insolvent estate of TMK has a claim against the estate
of the deceased in the amount of R1 372 896.00. This sum
relates to a loan account outstanding in favour of the
insolvent estate of TMK.
[1.2] The second application, case number 42679/2017, concerns the
sequestration of the deceased’s estate, with the First Respondent as
executor launched during May 2017.
[1.2.1] This application concerns a claim made by the insolvent
estate of the company in liquidation, Thomas Maxwell
Kitchen (Pty) Ltd (referred to as the "insolvent estate"),
against the estate of the deceased.
[1.2.2] The Applicant is the liquidator a ppointed for the insolvent
estate of the company.
[1.2.3] The First Respondent, the executor of the deceased, did not
oppose the application.
[1.2.4] The Second Respondent, Notefull 1122 (Pty) Ltd , who is
also the Applicant in the transfer application, pleaded that it
purchased the property from the deceased in 2000 but did
not receive transfer of ownership. The Second Respondent
does not contest the sequestration application.
FACTUAL MATRIX:
FIRST APPLICATION UNDER CASE NUMBER 2023 -003795 – TRANSFER OF
PROPERTY
FOUNDING AFFIDAVIT
[2] The Applicant ’s case , as pleaded in its Founding Affidavit , is reliant on the
following facts:
[2.1] In January 20 00, the Applicant (purchaser) and the deceased (seller)
entered into an agreement for the sale of the property.1
[2.1.1] In the offer to purchase, Annexure FA3, 2 the seller is
depicted as the deceased and the purchaser as Notefull
1122 (Pty) Ltd.
1 Annexure FA3 Case Lines A20
2 A20
[2.1.2] Notefull 1122 (Pty) Ltd was represented by Mr. Phil
Hemsley.
[2.1.3] The purchase price was R139 514.57, although the offer
depicts R139 515.00.
[2.1.4] The deceased was paid the purchase price, but no proof
was provided.
[2.2] Before the Applicant could take transfer of the property, the deceased
emigrated to the United Kingdom and could not be reached to sign the
necessary documents for the registration of transfer.3
[2.2.1] The Applicant did not specify the date of the deceased's
emigration nor detail the efforts undertaken to determine the
deceased’s whereabouts.
[2.3] When the Applicant became aware of the deceased’s whereabouts and
return to South -
Africa the Applicant then immediately instructed their
Attorney to proceed with the transfer.
[2.3.1] The Applicant did not specify how it learned of the deceased’s
return to RSA.
[2.4] During September 2017, the conveyancers prepared all of the
necessary documents to effect transfer of the property.
[2.5] The deceased committed suicide on 31 March 2018.4
[2.6] The Applicant could not take transfer from 31 March 2018 because the
property became part of a deceased estate and there was a delay in
obtaining letters of authority to appoint an executor.
3 Founding affidavit at paragraph 22, Case Lines A14.
4 Annexure FA4 at A24
[2.7] The Applica nt had acted as the " owner" of the property , although the
transfer had not yet taken place.
[2.7.1] The Applicant's group of companies (Advancenet CC and
Advancenet (Pty) Ltd ) made payments of amenities relating to
the property- being payment of the City Councils bills for water,
electricity and related services and payment of the levies
charged by the company managing the estate.
[2.8] In confirmation of the sale of the property the deceased acknowledged
that he was the transferer of the property in an affidavit dated 1
September 2017 and an undated affidavit to the transfer
documentation.5
INTERVENTION OF TRANSFER APPLICATION BY THE LIQUIDATOR
[3] The Applicant launched the transfer of the property application in the High
Court Gauteng Division, Johannesburg. The Liquidator was initially not cited
as a party in the proceedings.
[4] The liquidator applied for leave to intervene the
specific performance
application which application was not opposed.
[4.1] The liquidator was appointed as the final liquidator in Thomas Maxwell
Kitchen (Pty) Ltd. She also filed a sequestration application against the
executor in May 2017.
[5] The specific performance application was transferred to the High Court,
Gauteng Division, Pretoria on 26 May 2022.6
5 Annexures FA5 and FA6 at A25 and A26
6 Annexure A at J19
[6] The liquidator in the intervention application pleaded that the Applicant’s
version is:
[6.1] not reasonable or possibly true;
[6.2] the version fails to make any sense; and
[6.3] is so distorted and void of truth that it should be rejected outright.
[7] The liquidator raised various issues, namely:
[7.1] the suspicious timing of the sale agreement;
[7.2] the alleged prescription of the Applicant’s claim;
[7.3] the municipal account being in the deceased’s name and
[7.4] the corporate “identity issues” of Notefull 1122 and Advancenet.
APPLICANT’S SUPPLEMENTARY AFFIDAVIT
[8] Subsequent to the intervention application the Applicant filed a supplementary
affidavit to address the issues raised by the liquidator in the intervention
application. Nevertheless, these are matters that the Applicant should have
anticipated and addressed in its Founding Affidavit. The Applicant raised the
following issues, which will be examined in detail under the appropriate
headings below.
[8.1] The timing of the sale agreement;
[8.2] Prescription of its claim for transfer;
[8.3] Municipal Account registered in the deceased’s name;
[8.4] The corporate entities of Notefull 1122 and Advancenet Group of
Companies.
ISSUES RAISED BY LIQUIDATOR
• TIMING OF THE SALE AGREEMENT
[9] The Applicant stated in the Supplementary Affidavit that:
[9.1] it was informed that the property transfer had not been
completed upon receiving notification from their auditor, Phillip
Potgieter, through an email dated 12 August 2014.7
[9.2] On 27 January 2015, the Applicant’s legal representative, Mr.
Frederick Rall (hereinafter referred to as “Mr Rall”), was
instructed to facilitate the transfer of the property.8
[9.3] On 23 February 2015, Mr Rall, the Applicant’s attorney, met the
deceased.9
[9.4] On 19 March 2015, the attorney, Mr. Rall, confirmed that the
deceased had submitted a signed copy of the agreement.10
[9.5] On 26 March 2015, Mr Rall sent the agreement to Advancenet.11
[9.6] On 11 April 2015, attorney Mr Rall requested specific
conveyancing information from the purchaser.12
[9.7] By 28 January 2016, the purchaser provided all conveyancing
information required to pass registration.13
[9.8] In May 2017, TMK filed a sequestration application against the
deceased, citing a loan account with an alleged debit balance of
R1 372 896.0014
7 Annexure 'SA1', Case Lines J22
8 Paragraph 19.4 of Supplementary Affidavit, read with annexure 'SA2', Case Lines J24
9 Paragraph 19.5, read with annexure 'SA3', J29
10 Paragraph 19.7 Case Lines J47
11 Supplementary affidavit, Annexure 'SA8', Case Lines J47
12 Supplementary affidavit, Annexure 'SA9', CaseLines J50
13 Supplementary affidavit, paragraph 33 read with Annexure 'SA10', Case Lines J55
14 Answering affidavit, paragraph 4.1, Case Lines L6
[9.9] In September 2017, all conveyancing documents were
completed and prepared.15
[9.10] Before registration of transfer, on 31 March 2018, Thomas
Charles Barker passed away.
[9.11] On 25 September 2020, the executor was appointed in the
deceased estate of Thomas Charles Barker.
[9.12] On 30 April 2021, the Applicant launched the current application
for transfer and specific performance of the agreement of sale
• PRESCRIPTION OF TRANSFER CLAIM
[10] The Applicant argued that it was not open to the liquidator to try to impugn the
agreement. The liquidator was not a party to the written agreement for the
purchase of the immovable property.
[11] The debtor is the person who can raise prescription. Not even a court can.16
[12] The deceased could have raised prescription in this case.
[13] The deceased’s emigration suspended the prescription of the claim for the
entire period of his absence. This position is entrenched in terms of section
3(1)(b) of the Prescription Act 68 of 1969.
[14] The Applicant pleads that its attorneys only received the signed offer to
purchase on 19 March 2015.17
[15] The conveyancing documents were furthermore only signed during
September of 2017.18
15 Founding affidavit, paragraphs 25.1 - 25.6, Case Lines A-14 - A-1
16 Section 17(1) of Act 68 of 1969
17 Supplementary affidavit, para 19.7
[16] The deceased’s suicide resulted in the property being unable to be transferred
from 31 March 2018, as it became part of the deceased estate. This caused a
delay in obtaining letters of authority to appoint an executor for the late estate.
Consequently, the prescription period was extended due to the postponement
of the executor’s appointment.
[17] The Applicant argued that the claim for transfer did not prescribe.
[17.1] It is settled law that a person invoking prescription bears the full onus
to plead and prove it.19
[17.2] The party who raises prescription must allege and prove the date of
the inception of the period of prescription. Prescription begins to run
as soon as a debt is due.20
• MUNICIPAL ACCOUNT IN RESPECT OF PROPERTY
[18] The liquidator noted that the municipal accounts remained in the deceased’s
name21, but acknowledged that Advancenet CC or Advancenet (Pty) Ltd22 had
paid these accounts.
[19] The Applicant noted that C ity Of Johannesburg23 records lack consistent
accuracy and it saw no clear reason for the name change; however, this did
not render the action inappropriate.
[19.1] The payments have been included in Notefull’s financial
statements since 2001 and have been reported on tax returns.
There are no VAT implications related to these payments.
18 Founding affidavit, annexures FA5- FA11
19 Dreyer v Tuckers Land & Development Corporation (Pty) Ltd 1981 1 SA 1219 (T) 1129C;
20 Gericke v Sack 1978 (1) SA 821 (A) at 828B
21 A69
22 A71
23 A66
[19.2] The liquidator confirmed that Notefull paid the monthly levies
CORPORATE IDENTITY ISSUES – NOTEFULL 1122 CC, NOTEFULL 1122
(PTY) LTD AND ADVANCENET
[20] The Applicant, in its Supplementary Affidavit, sought to clarify the confusion
regarding the purchaser referenced in the undated offer to purchase as
outlined in its Founding Affidavit. The connections between Notefull 1122 CC,
Notefull 1122 (Pty) Ltd, the deceased, and Advancenet - which ought to have
been addressed in the Founding Affidavi t - were only d ealt with in the
Supplementary Affidavit.
[21] Notefull 1122 (Pty) Ltd was formerly a close corporation – Notefull 1122 CC,
registered on 17 February 2000.24 Mr. Irving claimed it was always intended
for a corporation to own the property.25 The property was paid before the sale
agreement was finalized, and the title deed was received at the time of
payment.
[22] Once Notefull 1122 CC was registered on 17 February 2000, the transfer was
supposed to occur but did not. When it was discovered in 2014 that the
property remained in the deceased's name, actions were initiated to process
the transfer.
[23] The liquidator stated that Advancenet (Pty) Ltd began trading in 2002 and did
not exist in 2000. It is part of a group of companies and was first registered as
Firetrade 26 CC . The payment to the deceased came from a Standard Bank
account active since August 1989.26
[24] Firetrade 26 CC, with registration number 1987/019505/23, was registered in
August 1987.27
24 SA 11 at J54
25 Paragraph 36 at J14
26 SA12 at J69
27 SA13 at J70
[25] The Windeed report shows that Firetrade 26 CC was renamed Micro
Configurations CC immediately after registration. In August 2000, Micro
Configurations CC became Advancenet CC. Following its separation from the
Computer Configurations Group, the name was changed to Advancenet CC
as required. Advancenet CC originated from Firetrade 26 CC.
[26] The payment for the property's purchase price originated from the close
corporation that later became known as Advancenet CC. In 2002, a strategic
decision was made to transition operations from a close corporation to a
company structure. Consequently, Freefall Trading 131 (Pty) Ltd was
acquired as a shelf company in October 2002, and was subsequently
renamed Advancenet (Pty) Ltd in July 2005.
[27] Micro Configurations CC was dissolved in June 2012 as a close
corporation.28
SEQUESTRATION APPLICATION UNDER CASE NUMBER 42679/2017
[28] During May 2017, the liquidator filed an Application for Sequestration against
the late Thomas Barker, prior to his passing.
[29] The Application for Sequestration faced multiple delays due to the death of
Thomas Barker and the wait for an executor, the process of appointing or
substituting the executor, the Applicant's involvement, and constraints from
the Covid-19 pandemic and related lockdowns.
[30] The claim by the insolvent estate relates to a loan account maintained by the
deceased with the insolvent com pany, Thomas Maxwell Kitchen (Pty) Ltd (in
liquidation).
[31] The deceased estate of Thomas Barker owes R1 372 896.00 to th e
company’s insolvent estate. This amount is unpaid and undisputed.
28 SA14 AT J77
[32] The Fourth Respondent accordingly has a liquidated claim exceeding
R100.00 against the deceased estate (represented by the First Respondent),
as per section 10 of the Insolvency Act 24 of 1936.
[33] On 30 January 2017, the deceased emailed the Fourth Respondent, admitted
the debt, and said he was unable to repay it.
[34] The sequestration application is based on insolvency grounds, specifically
referring to a written notice provided by the deceased before his death
indicating an inability to repay the loan account. This is regarded as an act of
insolvency under Section 8(g) of the Insolvency Act, Act 24 of 1936.
[35] It is clear that the claim of the insolvent estate of the company is:
[35.1] a liquidated claim,
[35.2] the amount remains due and payable,
[35.3] it is enforceable against the deceased estate and
[35.4] the deceased has committed an act of insolvency.
[36] The final criterion for issuing a compulsory sequestration order is the
presence of a reasonable belief that such action will be to the advantage of
the debtor's creditors.
[37] The liquidator bears the onus of establishing that there is reason to
believe
that sequestration will be to the advantage of creditors.
[38] "Reason to believe" denotes facts that establish belief, which the liquidator is
required to demonstrate: prima facie for a provisional order and on a balance
of probabilities for a final order.29
29 London Estates (Pty) Ltd v Nair 1957 (3) SA 591 (N) at 593
[39] An advantage is established if there are facts proved which indicate 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.”30
[40] It is sufficient for the liquidator to demonstrate that reasonable grounds exist
to conclude that, through comprehensive scrutiny of the debtor's affairs or
other appropriate methods, a trustee may be able to identify or recover assets
for distribution to creditors.31
[41] The term " advantage" to creditors broadly refers to any meaningful financial
benefit or insight from reviewing the debtor's finances, but it must serve a
practical purpose.
[42] As was stated by the Constitutional Court in Stratford and Others v Investec
Bank Limited and Others 32:
“16.1 [the meaning of the term "advantage" is broad and should not be
rigidified. This includes the nebulous "not -negligible" pecuniary
benefit... To my mind, specifying the cents in the rand or "not -
negligible" benefit in the context of a hostile sequestration where there
could be many creditors is unhelpful...The correct a pproach in
evaluating advantage to creditors for a court to exercise its discretion
guided by the dicta outlined in Friedman. 33 For example, it is up to a
court to assess whether the sequestration will result in some payment
to the creditors as a body; tha t there is a substantial estate from which
the creditors cannot get payment except through sequestration; or that
some pecuniary benefit will result for the creditors. Given the potential
impeachable transactions detailed by Investec, totalling over R37
million, it is evident that there is reason to believe that there will be an
advantage to creditors."
30 Meskin & Co v Friedman 1948 (2) SA 555 (W) at 55
31 Dunlop Tyres (Pty) Ltd v Brewitt 1999 (2) SA 580 (W) at 58
32 [2015] JOL 32695 (CC) at paras 44-46.
33 Meskin & Co v Friedman 1948 (2) SA 555 (W
[43] Ownership of property alone does not establish the relevant belief; there must
be evidence that the property is capable of being realised, and the pro bable
proceeds from a forced sale, after satisfying secured creditors, must be
sufficient to reasonably expect payment to proven creditors. 34
[44] I will deal with the advantage to creditors later on in this judgment.
APPLICATION TO TRANSFER THE PROPERTY UNDER CASE NUMBER
2023-003795
[45] At the heart of the opposition of the first application is the property which is
registered in the deceased’s name. The property appears to be the estate's
largest asset.
[46] In considering whether the Applicant has established grounds for the transfer
of the property, I will refer to the evidence provided in the Founding Affidavit.
[47] The facts presented in affidavits supporting the notice of motion should be
stated succinctly, clearly, and in chronological order, without including any
argumentative material.35
FOUNDING AFFIDAVIT
[48] The Founding Affidavit must set out at least the following information:
[48.1] The Applicant’s right to apply for the relief sought – its locus standi.
[48.2] Jurisdiction;
[48.3] The cause of action relied upon;
[48.4] The evidence to support the application.
DEPONENT TO FOUNDING AFFIDAVIT
34 Ex parte Steenkamp 1996 (3) SA 822 (W) at 826-82
35 Reynolds NO v Mecklenberg (Pty) Ltd 1996 (1) SA 75 (W) at 78I
[49] Mr. Andrew John Irving, Group General Manager of the Applicant, is the
deponent to this application.36
[50] The offer to purchase 37 forming the basis of the relief was apparently
concluded in January 2000 between the deceased and Mr. Phil Hemsley, who
is both a director of the Applicant and the deponent in the intervention
application to the sequestration proceeding.
[51] Mr Hemsley, apart from the deceased, is the sole source of information on the
property's acquisition, its terms, purchase price, and reasons for the transfer
delay.
[52] Although the resolution authorising Mr. Irving to initiate and execute all
documentation for the transfer application was duly signed by Mr. Phil
Hemsley,38 no explanation is provided regarding why Mr. Hemsley, who is a
party to the offer to purchase, did not personally depose to the Founding
Affidavit. It is respectfully submitted that Mr. Hemsley would have been best
positioned to provide direct evidence concerning the aforementioned offer.
[53] Mr Irving states that he has direct knowledge of the facts. He maintains that,
where information was provided to him, it is accurate, and argues that all
hearsay should be allowed under Section 3 of the Law of Evidence
Amendment Act 45 of 1988, as this provision aligns with the interests of
justice in these circumstances.
[54] The court has not been apprised of the reasons why Mr. Hemsley, who acted
on behalf of the Applicant in relation to the offer to purchase, is un able to
present direct evidence or why reliance on hearsay is warranted.
36 A7
37 FA3 at A20
38 Annexure FA1 at A18
[55] The fact that Mr Hemsley did not provide an affidavit is significant, as hearsay
evidence cannot be considered without an explanation for the absence of the
direct evidence.
[56] Mr. Irving has not furnished the court with information or evidence
demonstrating personal knowledge, nor has he specified the commencement
date of his association with the Applicant.
[57] It is essential that the deponent possesses personal knowledg e of the facts
underlying the Applicant’s cause of action. In the absence of such knowledge,
the deponent cannot attest under oath to the veracity of the statements made.
[58] The assertion by the deponent of personal knowledge alone is insufficient to
be determinative; the court does not simply endorse all claims of personal
knowledge without critical evaluation.
[59] In Maharaj v Barclays National Bank Ltd 1976 (1) SA 418 (A) at 423D -E, the
court determined that a deponent's mere claim of being able to attest
positively to the facts is insufficient, unless there is a valid basis for concluding
that the deponent has a comprehensive understanding of the impli cations of
such an assertion.
[60] In President of the Republic of South Africa and Others v M & G Media Ltd
2011 (2) SA 1 (SCA) at paragraph [38], the Supreme Court of Appeal
discussed the definition of personal knowledge.
“A court is not bound to accept the ipse dixit of a witness that his or her
evidence is admissible... Merely to allege that that information is within the
'personal knowledge' of a deponent is of little value without some indication, at
least from the context, of how that knowledge was acquired, so as to establish
that the information is admissible, and if it is hearsay, to enable its weight to
be evaluated. In this case there is no indication that the facts to which Mr
Chikane purports to attest came to his knowledge directly, and no other basis
for its admission has been laid. Indeed, the statement of Mr Chikane that I
have referred to is not evidence at all: it is no more than bald assertion.”
[61] The personal knowledge of the deponent regarding the material facts
contained in the founding affidavit is of significant importance. A lack of such
knowledge reduces the evidentiary value of the affidavit. In motion
proceedings, affidavits serve as the procedural means by which evidence is
introduced.
[62] To examine the personal knowledge requirement for an affidavit, it is first ly
important to define an affidavit. An affidavit is a written statement given under
oath. As evidence, the information in an affidavit must be based on facts that
the person making the statement knows firsthand.
[63] Affidavits must be based on personal knowledge to ensure their reliability as
evidence. In application proceedings, affidavits serve as both pleadings and
main evidence39, so relief is only granted if supported by admissible primary
facts known directly to the deponent. It is trite that an Applicant must make out
its case in the founding affidavit which must contain sufficient facts in itself
upon which a court may find in the Applicant’s favour.
[64] In Director of Hospital Services v Mistry40 the court put the position as follows:
‘When, as in this case, the proceedings are launched by way of notice of
motion, it is to the founding affidavit which a Judge will look to determine what
the complaint is … and as been said in many other cases: “… an applicant
must stand or fall by his pe tition and the facts alleged therein and that,
although sometimes it is permissible to supplement the allegations contained
in the petition, still the main foundation of the application is the allegation of
facts stated therein, because those are the facts which the respondent is
called upon either to affirm or deny.’
39 Minister of Land Affairs and Agriculture v D & F Wevell Trust 2008 (2) SA 184 (SCA) at 200D.
40 1979 (1) SA 626 (A) at 635H-636B
[65] If reliance is placed on hearsay evidence it must be in accordance with
Section 3(4) of the Law of Evidence Amendment Act 45 of 1988 . Hearsay
evidence is characterised as " evidence, whether oral or in writing, whose
probative value relies upon the credibility of an individual other than the
person presenting such evidence.”
[66] The personal knowledge of the deponent regarding the material facts
contained in the founding affidavit is of significant importance. A lack of such
knowledge reduces the evidentiary value of the affidavit. In motion
proceedings, affidavits serve as the procedural means by which evidence is
introduced.
[67] It is against this backdrop tha t the Founding A ffidavit must be critically
evaluated to determine if the personal knowledge prerequisite has been met.
[68] Mr Irving's affidavit does not clarify which facts are based on personal
knowledge and which on hearsay. There is no explanation for why Mr Phil
Hemsley, a signatory to the purchase offer, did not provide an affidavit despite
signing the resolution.
[69] The Applicant, who bears the burden of proving the transfer of property , in
motion proceedings, had to determine the most appropriate manner in which
to present its evidence. By choosing to present the evidence through Mr
Irving, without providing an explanation for why Mr Hemsley could not do so,
the probative value of the evidence is affected.
[70] As the deponent, Mr. Irving was not in a position to provide the most direct
(best) evidence, which Mr. Hemsley could have supplied. Although Mr.
Hemsley, a representative referenced in the offer to purchase, had sign ed the
resolution, he did not depose to the founding affidavit. No adequate or
credible explanation has been offered for Mr. Hemsley’s absence as
deponent.
[71] I will now deal with the Applicant’s locus standi.
APPLICANT’S LOCUS STANDI
[72] In Mr. Andrew John Irving’s Affidavit:
[72.1] the Applicant is depicted as NOTEFULL 1122 (PTY) LTD;
[72.2] the Applicant during January 2000, represented by Mr Phil Hemsley ,
concluded a written agreement of purchase of the property known as
[…] T[…] Ave, Sunninghill,
being Sectional Unit 5[…], G[…] Park, on
Sectional Scheme number
470/1990. 41
[72.3] the purchase price was stated as R139 514.57.42
[72.4] the purchase price had been paid to the deceased being the seller.43
[73] A preliminary procedural question that has to be considered in the judicial
process is whether the parties to the litigation have the necessary standing or
legal capacity to litigate.44
[74] Legal standing is not only a procedural question but is also a question of
substance; it concerns the sufficiency and directness of a litigant’s interest in
proceedings which warrants his or her title to prosecute the claim asserted.
The Applicant has to show that it is the rights-bearing entity, or is acting on the
authority of the entity, or has acquired its rights.
[75] The fact of standing must appear from the initiating process.45
[75.1] The general rule is that it is for the party instituting proceedings to
allege and prove its locus standi . It must accordingly appear ex
41 Annexure FA3 at A20
42 A12
43 Clause 1.1. at A20
44 Watt v Sea Plant Products Bpk 1998 4 All SA 109 (C)113–114; 1999 4 SA 443 (C).
45 Nienaber v Union Government 1947 1 All SA 244 (T) ; 1947 1 SA 392 (T); United Methodist
Church of SA v Sokufundumala 1989 4 SA 1055 (O).
facie the founding papers that the parties have the necessary legal
standing (locus standi in iudicio).46
[76] In Langeberg Ko-operasie Bpk v Folscher and Another 1950 (2) SA 618 (C)
an application was brought by one Whitehead. In his founding affidavit he
described himself as the secretary of the Applicant. After an objection has
been taken of no locus standi Whitehead filed another affidavit saying that he
had been described as secretary in error and that he was, in fact, the general
manager of the applicant. At pages 620 - 21 of the case N Thompson J said:
"In my view he (Whitehead) should not be allowed at this stage to amend his
first affidavit in such a vital respect, and after the point that he had no locus
standi had been taken by the respondent... However that may be, it seems to
me to apply for an amendment at this stage is too late, and I am not prepared
to accede to the amendment being made in an endeavour to right the
question of locus standi. In a recent case, namely the case of Geanotes v
Geanotes 1947(2) SA 512 (C) at 515 HERBSTEIN AJ quoted with approval
the case of Pountas' Trustees v Lahanas 1924 WLD 67, a decision of
KRAUSE J, where he said:
'I think it has been laid down in this Court repeatedly that an applicant must
stand or fall by his petition and the facts alleged therein, and that, although
sometimes it is permissible to supplement the allegations contained in the
petition, still the main foundation of facts of the application is the allegation of
facts stated therein, because those are the facts which the respondent is
called upon either to affirm or deny.'
HERBSTEIN AJ went on to say:
'It seems to me that correctly state the practice of this Court.'
46 Mars Incorporated v Candy World (Pty) Ltd 1991 (1) SA 567 (A) p. 575
Kommissaris van Binnelandse Inkomste v Van der Heever [1999] 3 All SA
115 (A), 1999 (3) SA 1051 (SCA) para 10
Four Wheel Drive Accessory Distributors CC v Rattan NO 2019 (3) SA 451 (SCA) para 7
I agree with the statement of HERBSEIN AJ. It seems to me that I should not
allow the affidavits which were filed yesterday to influence my decision on this
point that there was no locus standi as shown by the applicant, and as the
matter stood when the objection was taken, because it is quite clear to me
that an application by a secretary without anything more being said was not
sufficient to show authorisation to embark upon litigation by the applicant."
[77] In the Fourth Respondent’s Answering Affidavit she states that it is clear from
a CIPC report and search that the Applicant in 2000 did not exist. During 2000
it was a closed corporation named NOTEFULL 1122 CC with registration
number 2000/007298/23.47 The conversion from a closed corporation to a
company took place on 21 February 2003.48
[78] The Applicant subsequently in a Supplementary Affidavit dealt with the
“corporate entities’ issues raised by the Fourth Respondent. Mr Irving on the
Applicant’s behalf in this affidavit alleged as follows:49
[78.1] Notefull 1122 was previously a, Close Corporation, registered on 17
February 2000 – see Annexure "SA11".50
[78.2] It was always intended that a corporation would be the owner of the
property and not Mr Hemsley in his personal capacity.51
[78.2.1] Mr Irving in paragraph 36 of the Supplementary Affidavit
states:
“36. It was always intended that a corporation would be
the owner of the
property and not me in my personal
capacity” (my underlining)
47 Annexure AA2 at L133
48 L136
49 J13 at paragraph 35 onwards
50 J54
51 Paragraph 36 at J14
[78.2.1.1] The reference to “me” must refer to Mr Phil
Hemsley. Mr Irving is however the deponent
of the Supplementary Affidavit.
[78.3] Payment for the property was made in advance of the conclusion of
the sale agreement. At the same time as payment was made Mr
Hemsley received the title deeds of the property.
[78.3.1] Paragraph 37 of the Supplementary Affidavit states:
“Payment for the property was made in advance of the
conclusion of the sale agreement. At the same time as
payment was made, I
received the title deeds of the
property.” (my underlining)
[78.3.1.1] The reference to “I” in the above should
refer to Mr Phil Hemsley. Mr Irving is
however the deponent of the
Supplementary Affidavit.
[78.4] Once Notefull 1122 was registered as a closed corporation on 17
February 2000, transfer should have taken place but it was not done.
[78.4.1] The purchaser in 2000 accordingly had to be NOTEFULL
1122 CC.
[78.4.1.1] This is confirmed in paragraph 36 of the
Supplementary Affidavit by Mr. Irving where
he states:
“It was always intended that a corporation
would be the owner of the
property and not
me in my personal capacity .” (my
underlining)
[78.4.2] The Offer to Purchase which is undated depicts the seller
as the deceased Thomas Charles Barker and the
purchaser as NOTEFULL 1122 (PTY) LIMITED.52
[78.4.2.1] The corporation was however only converted
to a company on 21 February 2003.53
[78.4.2.2] It follows that the purchaser could not have
been the Applicant company as the Applicant
company:
[78.4.2.2.1] did not exist at the time and
[78.4.2.2.2] based upon the confirmation in
Mr. Irving’s Supplementary
Affidavit that it was bought by
the corporation. (referred to in
paragraph 75.4.1.1 here in
above)
[78.5] Upon discovery of the issue of transfer and the property still being in
the deceased name in 2014, steps were
then taken to deal with the
issue.
[79] These issues should have been addressed by the Applicant in the Founding
Affidavit as it establishes the Applicant’s locus standi.
[80] It is clear that Notefull 1122 CC , a closed corporation, was converted to
Notefull 1122 (Pty) Ltd, a company in 2003. This fact constitutes material
evidence of which the Applicant was cognisant at the time of attesting to the
52 Annexure FA3 at A20
53 J59
Founding Affidavit. Nevertheless, the Applicant chose to exclu de this
information.
[81] It was necessary for the Applicant's locus standi to be clearly articulated in the
Founding Affidavit, enabling the Respondent to address this issue
appropriately in their response.
[82] The subsequent belated attempt to address the Applicant’s locus standi
should be considered in view of the following facts that were known to the
Applicant at the time of drafting the Founding Affidavit:
[82.1] The conversion in 2003 of the corporation Notefull 1122 CC
registered in 2000 to the company - Notefull 1122 (Pty) Ltd;
[82.2] the parties to the offer to purchase being depicted as the deceased
and Notefull 1122 (Pty) Ltd and
[82.3] that the Applicant’s locus standi would become a fundamental issue
in light of the conversion of the corporation to the company only in
2003.
[83] The Applicant’s locus standi, which is a fundamental element of its claim, was
not established in its Founding Affidavit. In its Supplementary Affidavit, the
Applicant sought to clarify locus standi with the intention of addressing a
significant deficiency in the evidentiary support for its claim.
[84] Locus standi accordingly did not appear from the initiating process.54
CAUSE OF ACTION:
54 United Methodist Church of SA v Sokufundumala 1989 4 SA 1055 (O).
[85] The Applicant claims that the property was acquired through an offer to
purchase concluded in January 2000 between the deceased and Mr. Hemsley
for Notefull 1122 (Pty) Ltd.
[86] The discrepancies outlined below merit particular attention:
[86.1] The offer to purchase is not dated.
[86.2] The contracting parties are depicted in the offer to purchase as
the deceased and the Applicant company who did not exist in
2000 and only came into existence in 2003.
[86.2.1] It was not explained how the deceased and
Applicant would conclude an agreement, in the
name of the Applicant as a company, which name
would only come into existence 3 years later.
[86.3] The purchase price is recorded in the undated offer to purchase
as R139 515.00 although the exact amount was R139 514.75.
[86.4] Although it was recorded that the purchase price was paid there
is no proof of payment, save for a re flection in the Applicant’s
records.
[83.4.1] In the Sequestration Application the deceased
never admitted receiving payment of the alleged
purchase price.
[86.5] Mr Hemsley only became a director of Notefull 1122 (Pty) Ltd in
May 2003, whilst the offer to purchase was signed during
January 2000.55
55 Answering affidavit, para 5.23 - 5.28
[86.5.1] Mr. Hamsley ’s authority to conclude the sale on
the company’s behalf (which did not exist at the
time) in January 2000 remains unexplained.
[86.6] Advancenet (Pty) L td who paid the purchase price and the
municipal rates and levies in respect of the property only
started
to trade in 2002.56
[86.6.1] The Applicant argued that:
[86.6.1.1] Advancenet was registered in August
1987 and traded as FireTrade 26
CC. Fire Trade underwent a name
change to Micro Figurations and
thereafter Advancenet CC , which
was later converted into a P TY
(company).
[86.6.1.2] The banking account from which
payment was made ha d been
opened since August 1989.
[86.6.1.3] Advancenet paid the purchase
consideration, on behalf of the
Applicant, a company within the
group of companies.
[86.7] Email correspondence between Mr Frederick Rall – the
Applicant’s attorney and Mr Irving of the Applicant contain facts
which contradicts the Applicant’s pleaded case.
56 Supplementary affidavit, para 1.2, CaseLines
[86.7.1] In an email from Mr. Frederick Rall to Mr Irving
dated 26 January 2015 regarding the property the
following was stated:57
“Thom has asked me if we know what is
happening with the transfer of the flat Phil bought
for/from him.” (my underlining)
[86.7.1.1] The reference to Thom must be to
the deceased and Phil to Mr
Hemsley.
[86.7.1.2] The phrase “ transfer of the flat Phil
bought for/from him ” is problematic,
as it ambiguously suggests Mr
Hemsley bought the property either
for or from the deceased - two
mutually exclusive scenarios.
[86.7.2] In an email dated 5 March 2015 08:10 AM Mr Rall
notified Mr. Irving that the offer was amended and
that the deceased would sign the offer. 58 He
stated:
“Hi
We have amended the offer as per the below and
will meet with Thomas to sign shortly .” (my
underlining)
[86.7.2.1] The Applicant’s case is based on an
offer signed in January 2000 .59 The
57 J27
58 J33
59 Paragraph 15 at A11
amendment and signing of an offer
during 2015 is contradictory to the
pleaded case.
[86.7.3] In an email dated 19 March 2015 to Mr. Irving at
08:48, Mr Rall noted:60
“Hi Thomas has signed the offer and we have
received the signed offer back, which we will now
forward to you for signature…”
[86.7.3.1] The signing of an offer in 2015 is in
direct conflict with the Applicant’s
case that it was signed during
January 2000.
[86.7.4] An email from Mr Irving to Mr Rall on 2 5 February
2015 at 9:00 AM stated:61
“Hi Fred,
This Looks fine. The purchase amount should be
R139 515.00 though”. (my underlining)
[86.7.4.1] The purchase price was
R139 514.57 as testified to by Mr.
Irving in the Founding Affidavit.62
[86.7.4.2] The offer to purchase annexed to the
Founding Affidavit 63 reflects the
amount of R139 515.00 as per the
aforesaid email.
60 J35
61 J34
62 Paragraph 19.1 at A12
63 Annexure FA3 at A20 clause 1
[86.7.5] Mr Irving also in an email to Mr Rall dated 27
January 2015 at 10:28 AM indicated that the
property was bought by one of the Group
Companies - Notefull 1122 .64 This statement
contradicts his evidence in his Supplement ary
Affidavit that it was bought by the corporation.65
[87] The Applicant had to in the founding affidavit set out sufficient facts to
disclose a cause of action, which, as a general rule, should exist at the time of
the initiation of the proceedings.66 Whereas in pleadings a party may generally
not plead evidence, the nature of appli cations is such that the application
forms not only the pleadings, but also provides all the evidence upon which
the Applicant relies.67 It follows that the founding affidavit, being the equivalent
of Plaintiff ’s pleadings and Plaintiff ’s case on trial, must in itself contain
sufficient facts upon which a court may find in his or her favour.68
[88] The Applicant in its Supplementary Affidavit attempted to rectify the confusion
in respect of the corporate entities, the fact that Advancenet made payments
and Mr Hemsley’s authority to bind the Applicant. I am of the view that these
are crucial and esse ntial elements of the Applicant’s claim which had to be
canvassed and addressed in detail in the Founding Affidavit.
[89] The Supplementary Affidavit and annexures (email correspondence) thereto
raise more questions than provide answers.
[90] The cause of action the transfer of the property as set out in the Founding
Affidavit is reliant on an offer to purchase between the deceased and Mr. Phil
Hemsley on behalf of the Applicant company in January of 2000 . A company
which did not exist and the authority of Mr. Hemsley not being proved.
64 J24
65 Paragraph 36 at J14
66 Philotex (Pty) Ltd v Snyman 1994 1 All SA 95 (T); 1994 2 SA 710 (T).
67 Hart v Pinetown Drive-In Cinema (Pty) Ltd 1972 1 All SA 586 (D); 1972 1 SA 464 (D);
68 Skjelbreds Rederi A/S v Hartless (Pty) Ltd 1982 1 All SA 1 (W); 1982 2 SA 739 (W);
[91] In its Supplementary Affidavit the Applicant seeks to explain its locus standi
and the link between the corporation and the company. This in my mind is a
little too late. These issues were foreseeable but not dealt with in the
Founding Affidavit.
[92] The Applicant did not set out the cause of action in clear and unequivocal
terms to enable the Respondent to know what case to meet. This is the very
reason why an Applicant is never permitted to change colours which he/she
has pinned to the mast and plead a new cause of action in a replying affidavit.
A party is duty bound to allege in his or her affidavit all the material facts upon
which it relies.
[93] Explaining the crucial role played by affidavits in motion proceedings, Joffe J
said in Swissborough Diamond Mine s (Pty) Ltd and others v Government of
the Republic of South Africa and others 1999 (2) SA 279 (T) at 323F –324C
[also reported at [1998] JOL 4144 (T) – Ed]:
“It is trite law that in motion proceedings the affidavits serve not only to place
evidence before the Court but also to define the issues between the parties. In
so doing the issues between the parties are identified. This is not only for the
benefit of th e Court but also, and primarily, for the parties. The parties must
know the case that must be met and in respect of which they must adduce
evidence in the affidavits.” (My underlining.)
[94] In considering the Founding and Supplementary Affidavits inclusive of the
email correspondence it is unclear when the offer to purchase was signed.
There are simply put too many unexplained contradictions to favour the
Applicant’s case.
[95] The Applicant could have anticipated the disputed facts, but they were not
addressed in the Founding Affidavit.
[96] Essential elements of the Applicant’s case are lacking in its founding affidavit
namely the contracting party’s identity and locus standi . The failure of Mr
Hemsley, as a representative party to the offer to purcha se, despite signing
the resolution to institute proceedings, to depose to the Founding affidavit
remains unexplained and is questioned. Mr. Irving’s contradictory evidence as
alluded to here in before is also indicative of his lack of knowledge of what
occurred. He also failed to explain why Mr Hemsley could not himself provide
an affidavit as evidence.
[97] The Applicant chose to provide its evidence based upon hearsay evidence of
what allegedly occurred in 2000. This was done whilst Mr Hemsley was
available to provide direct evidence. It must accordingly stand and fall based
upon the presented case as set out in its affidavits.
[98] The Applicant has failed to convince this court that it has made out a case on
the affidavits before me. It has not succeeded in proving that the property
should be transferred to the Applicant.
[99] The property will accordingly remain in the deceased’s estate.
PROPERTY
ADVANTAGE TO CREDITORS
[100] In dealing with an advantage to creditors it is clear that the property is the
biggest asset in the deceased’s estate.
[101] The court in Gardee v Dharmanta Holdings and Others 69 held that
sequestration will only be to the advantage of the creditors if it will result in a
greater dividend to them than would otherwise be the case, for example ,
through the setting aside of impeccable transactions or the exposure of
69 1978 (1) SA 1066 (N) 1068-7
concealed assets, or if it will prevent an unfair division of the proceeds of the
assets or some creditors being preferred to others.
[102] The advantage to creditors requirement is also provided for in section 12 (c) of
the Insolvency Act, which states that a court will grant a final sequestration
order if there is reason to believe that it will be to the advantage of creditors of
the debtor if his state is sequestrated.
[103] The inquiry is not simply whether sequestration will be to the advantage to
creditors, but whether administration of the estate by a trustee in insolvency
holds more advantage f or creditors as a group than administration of the
estate by an executor. 70 To answer this question the court is obliged to
conduct an analytical investigation and evaluation of all the relevant facts and
circumstances, including the size of the estate, the complexity and possible
complications inherent in the administration of the estate and to what extent
the respective Acts offer the best method of dealing with such problems, the
competence and independence of the executor of the deceased estate, the
costs of different options, the wishes of the majority of the creditors, and the
size of the Applicant’s claim.71None of these factors is necessarily decisive.
[104] This court beliefs that the legal machinery offered by the Insolvency Act , Act
24 of 1936 for protection of creditors’ interests is needed in this case to
properly administer the estate. 72 The effect of an order sequestrating a
deceased estate and the appointment of a trustee is, with certain exceptions,
to suspend the rights and duties of the executor.73
70 Stainer v Estate Bukes 1933 OPD 86 90; Standard Bank van SA Bpk v Van Zyl 1999 2 SA 221 (O)
225. In the latter case, the court pointed out that it is incorrect to speak of the creditor having the onus
of proving advantage to creditors where the court has a discretion to decide on the most appropriate
procedure.
procedure.
71 Standard Bank van SA Bpk v Van Zyl supra.
72 Stainer v Estate Bukes supra; Standard Bank van SA Bpk v Van Zyl supra. See also Standard
Bank of SA Ltd v Estate Steiner 1925 l PH C33 (C). This may be the case, for example, where there
are impeachable transactions that can only be properly investigated by a trustee using the powers
conferred on him or her by the Insolvency Act.
73 The Master v Omar [1958] 2 All SA 387 (T); 1958 2 SA 547 (T) 549.
[105] The trustee's role is established by statute, granting powers and duties under
the Act. The trustee must act in the interests of both the insolvent and
creditors, with primary responsibilities to collect, preserve, and realise estate
assets.
[106] Some of the trustee’s statutory duties and powers are the following:
[106.1] To take charge of property. The trustee is responsible for
managing the estate's property and must provide the Master
with an appraiser's valuation of all movable assets.
[106.2] Sale of Assets . With the approval of the Master, a trustee is
authorised to sell the movable assets of the estate prior to the
second meeting of creditors.
[106.3] Investigation of affairs and reports to creditors. The trustee is
required to conduct a thorough investigation into the affairs and
transactions of the insolvent preceding sequestration and must
present a comprehensive written report at the second meeting,
or, with the Master’s prior written approval, at an adjourned
second meeting.
[106.4] Accounts. The trustee is required to submit a liquidation account
and a distribution plan of the estate's property proceeds to the
Master for payment to creditors. If these proceeds do not cover
sequestration costs, the trustee must provide a contribution plan
that allocates the liability for any deficiency among creditors who
are responsible to contribute.
[106.5] To take charge of property. The trustee is responsible for
overseeing the estate property and must provide the Master with
an appraiser's valuation of all movable assets. Additionally, the
trustee is required to establish a banking account and maintain a
ledger that records all funds, goods, books, accounts, and
documents received on behalf of the estate.
[106.6] Investigation of affairs and reports to creditors. The trustee
examines the insolvent's affairs prior to sequestration and
provides a comprehensive report at the second meeting, or at
an adjourned meeting with the Master's written consent.
[106.7] Accounts. The trustee s ubmits a liquidation account and a
distribution plan for the proceeds of the estate’s property to the
Master. If the proceeds are insufficient to cover sequestration
costs, the trustee provides a contribution plan that allocates
responsibility for the shor tfall among creditors required to
contribute.
[107] In this matter the trustee will be able to take hold of the property, preserve it
and investigate the affairs of the deceased prior to sequestration to the
benefit of the body of creditors.
[108] I am satisfied that a final sequestration order can be granted.
[109] I accordingly make the following orders:
Orders
APPLICATION UNDER CASE NUMBER: 21628/2021
[1] The application is dismissed with costs inclusive of counsel’s fees on scale B.
SEQUESTRATION APPLICATION UNDER CASE NUMBER: 42617/2017
[1] The Respondent is sequestrated and his estate is placed in the hands of the
Master of the High Court;
[2] The costs of this application are cost in the administration of the insolvent
estate of the Respondent.
___________________________
S VAN ASWEGEN
ACTING JUDGE OF THE HIGH COURT,
GAUTENG DIVISION, PRETORIA
Date of Hearing: 23 May 2025
Date of Judgment: 20 August 2025
CASE NUMBER: 21628/2021
For the Applicant: Adv J C Viljoen
Instructed by Fred Rall Attorneys Inc
For the Fourth Respondent: Adv Z Schoeman,
Instructed by Roestoff and Kruse Attorneys
CASE NUMBER: 21628/2021
For the Applicant: Adv Z Schoeman,
Instructed by Roestoff and Kruse Attorneys
For the Second Respondent: Adv J C Viljoen
Instructed by Fred Rall Attorneys Inc