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REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, PRETORIA
CASE NO: 2023-071111
1. REPORTABLE: YES/NO
2. OF INTEREST TO OTHER JUDGES: YES/NO
3. REVISED: YES/NO
DATE: 11 October 2024
In the matter between:
VOLTEX(PTY)LTD Applicant
And
THE TRUSTEES FOR THE TIME BEING First Respondent
OF THE ANDRE DE LEEUW FAMILIETRUST NO
CORNELIUS ANDREAS GERT DE LEEUW NO Second Respondent
HELENA ELIZABETH MARIA DE LEEUW NO Third Respondent
And
CASE NO: 2023-074271
VOLTEX(PTY)LTD Applicant
and
DE LEEUW, CORNELIUS ANDREAS GERT First Respondent
Date of birth of the first respondent 11th November 1957
Identity number of the first respondent 5[…]
Martial state of the first respondent Married in /alternative out of
community of property to the second
Respondent
DE LEEUW, HELENA ELIZABETH MARIA Second Respondent
Date of birth of the second respondent 4th of March 1962
Identity number of the second respondent 6[…]
Martial state of the second respondent Married in /alternative out of
community of proper ty to the first
Respondent
JUDGMENT
VORSTER AJ:
1. In case 2023 -07111 the Applicant at this stage seeks the provisional
sequestration of the Andre De Leeuw Familietrust (" the Trust'' ). In case number
2023-074271 the Applicant seeks the provisional sequestration of two individuals, Mr
and Mrs De Leeuw, who are the trustees of the Trust.
2. Because the facts and legal issues in the two applications overlap to a large
extent, the applications were argued together and are both dealt with in this
composite judgment.
3. The following facts are common cause between the parties:
3.1. ADL Electrical Contractors (Pty) Ltd ("ADL'') owes the Applicant the
sum of R 17 933 150.02 together with interest in respect of the purchase of
electrical goods by ADL from the Applicant.
3.2. The Trust bound itself as surety and co-principal debtor in favour of the
Applicant for ADL's indebtedness to the Applicant.
3.3. Mr De Leeuw, acting in his personal capacity, also bound himself as
surety and principal co-debtor to the Applicant for the debts of ADL.
3.4. Mr and Mrs De Leeuw are married in community of property.
3.5. The Applicant obtained judgment in the above amount plus interest
against the Trust and Mr De Leeuw, jointly and severally on 25 February 2019
after the Trust, De Leeuw and ADL had in terms of a settlemen t agreement
undertaken to pay such sum by 15 January 2019.
3.6. ADL was placed under final winding-up on 23 January 2024.
3.7. The Applicant thus has a judgment against the Trust and Mr De Leeuw
in the amount of almost R 18 million plus interest, which judgment has not
been satisfied for a period of approximately five and a half years.
3.8. The Trust is the sole shareholder of a company named Loumarles
Landgoed (Pty) Ltd (" Loumarles") which owns an immovable property being
farmland in Limpopo ("the farm'').
4. Although there are a number of issues in dispute of the papers, I was
informed during the commencement of argument that the parties had agreed that the
only issues remaining were whether the Respondents had committed an act of
insolvency as described in section 8(b) of the Insolvency Act 24 of 1936 (" the Act"),
i.e. whether there h ad been nulla bona returns and whether there is reason to
believe that it will be to the advantage of creditors of the Respondents as intended in
section 10(c) of the Act if their estates are provisionally sequestrated. In discussing
the evidence below, th e emphasis is on evidence which is germane to these issues.
However, during argument it transpired that the question whether the Respondents
are in fact insolvent also required consideration.
5. Annexed to the founding affidavit in case 71111 is an affida vit deposed to by
Mr De Leeuw on 6 June 2023 in opposition to the winding -up application which the
Applicant had launched against ADL in 2018. The important averments in this
affidavit may be summarised as follows:
5.1. ADL has always maintained that it is willing and will repay the Applicant,
but ADL is bound by processes out of its control which make it impossible to
effect payment.
5.2. The farm has significant value and Loumarles is in the process of
selling the farm in order for such proceeds to be utilized to settle the mortgage
bond over the property as well as to settle the debt of the Applicant.
5.3. The property had previously been sold but the transaction failed due to
the purchaser's inability to obtain financing for the sale.
5.4. There have been active and continuous attempts to sell the farm in
order to settle the mentioned debts and Loumarles is in possession of a
signed offer to purchase. However, financing of the transaction has proven to
be a tedious process.
5.5. It is submitted b y the deponent that the successful sale of the farm is
inevitable and in the process of being finalised.
6. The following is clear from the annexures to this affidavit (which form part of
the answering papers in case 71111):
6.1. Loumarles has been attempting to sell the farm since at least 2018.
6.2. An offer to sell the farm signed behalf of the Loumarles in October
2021 (which was not signed by the purchaser) indicated the total purchase
price as R 43 million, made up as follows:
6.2.1. Purchase price for the land, R 33 150 000.00;
6.2.2. Purchase price for the movable property R 6 000 000.00; and
6.2.3. Purchase price for the game R 1 700 000.00.
6.3. The sale referred to in paragraph 7.1 below indicates that the purchase
price of R 48 million does not relate solely to the farm, but also to movable
property such as 300 head of cattle weighing in at approximately 150kg each
as well as feed and medication for 120 to 140 days.
6.4. On 2 April 2023 an attorney apparently acting on behalf of ADL and its
sureties addressed a letter to the attorneys of the Applicant and of ABSA. In
this letter the following was stated in relation to service of a warrant of
execution in March 2023 upon the Trust:
"It is not clear to us, nor our clients, as to what exactly VOLTEX (PTY) LTD is
trying to achieve with same as our client had disclosed all relevant immovable
and movable property, inclusive of security to Loumarles ... The re execution
as instructed, is causing unnecessary costs at this stage, as there is no
purpose in proceeding with the auction taking into consideration the liquidation
application that is still pending. Should VOLTEX (PTY) LTD choose to
proceed with the auction, it w ould be unjust to all relevant creditors. A
previously attempted auction clearly proved that there was no buyer's market
for such property and that the purchase price that was attempted as a
potential sell of the property, was Jess than half of what can be obtained from
a private sale. This attempt from VOLTEX (PTY) LTD is seen as vexatious,
and might be seen as an attempt to bring harm to our clients and the entities
involved."
7. In the Trust's answering affidavit in case 071111 which was deposed to on 1 1
January 2024, Mr De Leeuw states inter alia the following:
7.1. Loumarles sold the farm on 23 March 2023 for an amount of R 48
million in order for the proceeds thereof to be utilized to settle the mortgage
bond and the debt of the Applicant. Transfer w as stated to be pending and
subject to the purchaser obtaining financing from the Land Bank.
7.2. The mortgage holder has confirmed to Mr De Leeuw that it would be
willing to accept a payment towards the mortgage at about R25 million. (It is
worth noting that there is no document or affidavit from the mortgage holder
confirming the correctness of this assertion.)
7.3. It is repeated that the sale of the farm is inevitable and in the process
of being finalised.
7.4. "...[T]here is simply no means other than the proceeds of the farm with
which the Applicant's debt can be paid. There is certainly no entity or
person involved with the financial means to pay an amount of more than
R 17,000,000.00" (emphasis added.)
7.5. "[T]he execution of the judgment would be a futile exercise until the
farm has been successfully sold ". Mr De Leeuw's attitude regarding the sale
of th e farm in execution is thus consistent with what was stated by his
attorney in the letter quoted in paragraph 6.4 above.
8. The founding papers in both case 71111 and case 74271 contain warrants of
execution issued pursuant to the court order referred to in paragraph 3.5 above
against the Trust on 10 April 2019 and against Mr De Leeuw on 2 March 2023.
9. The Sheriffs return of service in relation to the Trust states that the warrant of
execution was served on 24 May 2023 on Mr De Leeuw (in his capacity a s trustee)
at his residence in Pretoria after explaining the nature and exigency of the said
process. The Sheriff then demanded payment of the judgment debt from the said
trustee and as he was unable to pay the judgment debt and costs in full or in part ,
the movable property described in an annexed inventory was judicially attached. The
Sheriff placed a value of approximately R 275 000.00 on the assets so attached. The
return of service in respect of Mr De Leeuw in his personal capacity is formulated in
a substantially similar way to the return in relation to the Trust.
10. With regard to advantage to creditors the following is stated in the founding
affidavit in case 71111:
10.1. As it appears that Mr De Leeuw is attempting to sell the farm for the
sum of R 43 million, it is submitted that this is a significant asset which will
result in a substantial advantage to creditors.
10.2. Apart from the Trust being the sole shareholder in Loumarles it is also
the sole shareholder in Webram Eleven (Pty) Ltd and Vtric (Pty) Ltd and a
trustee will be able to ascertain whether any of such companies have assets
which can be realised for the benefit of creditors.
10.3. The items in the inventory referred to above may constitute assets
belonging to the trust, which the trustee can utilize for the benefit of creditors.
10.4. The circumstances require that the trustee investigate the affairs of the
trust and there is at least a reasonable possibility that he may locate assets
which will afford a pecuniary benefit to creditors.
11. The following further features of the answering affidavit in case 71111 are
relevant:
11.1. In respect of Webram and Vtric, Mr De Leeuw baldly confirms that
these entities have been dormant for many years and have no assets.
11.2. The Applicant's averment that the farm has substantial value is noted
and not disputed.
11.3. It is stated th at the movable assets which were attached related to the
trust and not to Mr De Leeuw personally.
11.4. The Applicant's averments and contentions relating to advantage to
creditors are denied and it is stated that there are no creditors apart from the
Applicant. It is stated that sequestration of the trust will not hold any
advantage even to the Applicant. Although it is raised that the liquidation
proceedings of ADL are ongoing and that it is unclear what benefit will be
yielded to the Applicant from the liquidation of ADL, ADL has now finally been
wound up as indicated above.
11.5. It is denied that the investigation of a trustee would lead to a location of
any assets of substantial value.
11.6. Although there is a bare denial of the averment that the trust is factually
insolvent, no evidence is provided which could justify the conclusion that the
trust is factually solvent.
12. The only important differences between the papers under case 71111 and
case 74271 are as follows:
12.1. In addition to the service of the warrants of execution dealt with in both
case 71111 and case 74271, service of the warrant of execution on Mr de
Leeuw personally on 25 April 2023 is dealt with in case 74271.
12.2. This return reads as follows:
"The WARRANT OF EXECUTION in this matter, which service address
is Plot 1 […], 5[…] B[…] Avenue, Kenley, Sinoville is returned herewith
on this 25 th day of April 2023 at 08:00 as NO ASSETS OF [MR DE
LEEUW] COULD BE FOUND AT THE GIVEN ADDRESS. ALL THE
ASSETS IS PRESUMABLY ON A FARM IN NABOOMSPRUIT
NAMELY; 513KR, NABOOMSPRUIT AS INFORMED BY MR CAG
DE LEEUW ... " (Emphasis added)
12.3. In the answering affidavit in case 74271 Mr De Leeuw merely notes the
content quoted above, but does not elucidate the sentence which has been
emphasised above. Mr De Leeuw does, however, state with reference to a
return of non -service by the Sheriff that the Sheriff seemingly failed to locate
the farm despite it being easily traceable with large signs on the way to the
farm. Mr De Leeuw suggests, with some justification that the Applicant should
have requested information pertaining to the farm from the Respondents'
attorneys of record who had already been on record for a substantial period.
12.4. As far as advantage to creditors is concerned, the Applicant states in
case 74271 that the assets reflected on the inventory constitute assets of Mr
De Lee uw which have a substantial value and which will constitute a
pecuniary advantage to creditors. In response to this, Mr de Leeuw merely
baldly asserts that the assets judicially attached, do not belong to him.
12.5. In case 74271 reliance is also placed o n the circumstances which
require a trustee to investigate the affairs of Mr De Leeuw and it is suggested
that there is at least a reasonable possibility that the trustee may locate
assets which will afford a pecuniary benefit to creditors.
13. In the answering affidavits in both applications it is explained that the De
Leeuws previously had the ability to live a luxurious lifestyle when ADL was a very
lucrative company from which Mr De Leeuw managed to draw a lucrative income.
However, ADL's profitability ceased upon the collapse of Sharemax when ADL could
not recuperate large amounts outstanding to it from the developer of the infamous
Villa Mall.
14. The De Leeuws accordingly had to down -scale their lifestyle immensely since
the downfall of the Villa project and are getting by financially on the income Mr De
Leeuw draws from the remaining operations of ADL, which is on a much smaller
scale.
15. The answering affidavits were deposed to a few weeks before the granting of
the final winding -up order in re spect of ADL and the question does arise as to how
the De Leeuws have been getting by financially and paying their legal team since the
final winding-up of ADL some six months ago.
16. It appears from the papers that the mortgage bond holder, ABSA has inde ed
instituted proceedings against Loumarles for a winding-up order.
17. It thus appears that, although on the papers the Trust has no creditors other
than the Applicant, it is not only the Applicant, but also ABSA who have instituted
sequestration and winding-up proceedings with a view to utilizing the proceeds of the
sale of the farm in order to satisfy their respective claims in whole or in part.
ACTS OF INSOLVENCY AND FACTUAL INSOLVENCY:
18. In the founding papers the Applicant relies both on an ac t of insolvency in
terms of section 8(b)1 of the Act and on actual insolvency of the Respondents.
19. The Respondents have put up a virilis defensio in respect of the act of
insolvency relied upon by the Applicant and have forcefully argued that the retur ns of
service relied upon by the Applicant do not constitute nulla bona returns as required
in section 8(b) of the Act.
1 The reference to section 8(a) appears to be a typographical error if one has regard to the context
sketched in the founding affidavit as well as that the trust is factually insolvent.
20. The Applicant sought to counter these arguments by relying in argument on
an act of insolvency as intended in section 8(g) of the A ct, i.e. the giving of notice in
writing to any one of the Respondents' creditors that the Respondents are unable to
pay any of their debts. This argument was based on the statement in the answering
papers quoted in paragraph 7.4 above. The Respondents res isted this attempt to
rely on section 8(g) on the basis that this was not the case advanced by the
Applicant on the papers.
21. In view of the conclusion which I have reached below with regard to the actual
insolvency of the Respondents it is not necessary to decide whether the returns of
service relied upon by the Applicant comply with the requirements of section 8(b) or
whether the Applicant is entitled to rely on an act of insolvency in term s of section
8(9), which has not been relied upon in the Applicant's papers.
22. In the case of a hostile sequestration the sequestrating creditor does not have
to set out in its founding affidavits the detail and intensity of averments which are
required in a friendly sequestration, although a proper case should always be made
out.2
23. The relevant legal principles relating to actual insolvency may be summarised
as follows:
23.1. Actual insolvency denotes that the debtor's liabilities actually exceed
the value of his or her assets.3
23.2. However, actual insolvency may be established indirectly by adducing
evidence of circumstances indicative thereof such as the fact that debts
remain unpaid.4
2 Dunlop Tyres (Pty) Ltd v Brewitt 1999 (2) SA 580 (W) at 583F.
3 Ex parte Harmse 2005 (1) SA 323 (N) at par. [8].
4 De Waard v Andrews and Thienhans Limited 1907 TS 727 at 733 where the following was stated:
"To my mind the best proof of solvency is that a man should pay his debts; and therefore I always
examine in a critical spirit the case of a man who does not pay what he owes"; Ullman Sails (Pty) Ltd
v Jannie Reuvers Sails (Pty) Ltd [2022] 2 All SA 290 (WCC), par. 48.
23.3. An Applicant relying on actual insolvency is not req uired to adduce
evidence to finitely determine the Respondent's assets and liabilities and may
discharge the onus of establishi ng a prima facie case by way of sufficient
evidence to justify the inference that the Respondent is insolvent. If the
Applicant does so, the onus is on the Respondent to rebut the inference by
showing that he has sufficient assets to be able to settle his liabilities.5
23.4. While proof of " commercial insolvency ", i.e. inability to pay debts as
they become due is not sufficient, per se for the purpose of obtaining a
sequestration order, evidence of such inability may enable the court to
conclude that the d ebtor's liabilities in fact exceed the value of his or her
assets.6
24. The fact that the Trust and Mr de Leeuw have not satisfied a judgment of
almost R 18 million (together with interest) for a period of approximately five and a
half years must be a very strong indication of factual insolvency. Bearing in mind that
at provisional sequestration stage the court needs to be of the opinion that prima
facie the debtor is insolvent, I am satisfied that the Applicant has satisfied the burden
resting on it.
25. The inference of actual insolvency is strengthened by the fact that Loumarles
has been trying unsuccessfully to sell the farm since 2018.
26. As has been indicated in paragraph 11.6 above no evidence has been
provided by the Respondents which could justify the conclusion that they are
factually solvent.
ADVANTAGE TO CREDITORS:
27. Section 1 0(c) of the Act requires that the Court must be of the opinion that
prima facie there is reason to believe that it will be to the advantage of creditors of
the debtor if his estate is sequestrated.
5 Ullman Sails (supra).
6 Meskin Insolvency Law, par. 2.1.3.
28. As pointed out above, in the case of a hostile sequest ration the sequestrating
creditor does not have to set out in its founding affidavits the detail and intensity of
averments which are required in a friendly sequestration, although a proper case
should always be made out.7
29. At the provisional sequestra tion stage advantage to creditors need not be
established, but only that there is reason to believe that there will be such advantage.
This means that facts should be disclosed which in engender such belief, prima
facie.8
30. It is also sufficient if the Applicant demonstrates, for example, that there are
reasonable grounds for concluding that upon a proper investigation of the debtor's
affairs, or otherwise, a trustee may discover or recover assets for disposal for the
benefit of creditors.9
31. In Stratford v Investec Bank Ltd10 the following was stated:
"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 ... in the context of a hostile sequestration
where there could be many creditors is unhelpful ...
The correct approach in evaluating advantage to creditors is for a court to
exercise its discretion guided by the dicta outlined in Friedman 11 for example,
it is up to the Court to assess whether the sequestration will resul t in some
payment to the creditors as a body; that there is a substantial estate from
7 Dunlop Tyres (Pty) Ltd v Brewitt (supra) at 583F.
8 London Estates (Pty) Ltd v Nair 1957 (3) SA 591 (N) at 593C - D.
9 Dunlop Tyres (Pty) Ltd v Brewitt (supra) at 583G.
10 2015 (3) SA 1 (CC), par. [44] - [45].
11 Meskin & Co v Friedman 1948 (2) SA 555 (W) at 559 where the following was stated: "[T]he facts
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 the creditors. It is not
necessary to prove that the insolvent has any assets. Even if there are none at all, but there are
reasons for thinking that as a result of inquiry under the Act some may be revealed or recovered for
the benefit of creditors, that is sufficient ... ".
which the creditors cannot get payment, except through sequestration; or that
some pecuniary benefit will result to the creditors."
32. In opposing an application for co mpulsory sequestration, a Respondent
should provide the information necessary to enable the court to decide whether or
not there is advantage to creditors, in the absence of which the court may accept the
facts on which the application is based.12
33. In this regard the following statement of the law by Watermeyer J in Hill & Co
v Ganie13 has frequently been referred to with approval:14
"... prima facie if there is a substantial estate to sequestrate and if the
creditors cannot get their debts paid in the ordinary way it is to the advantage
of creditors that the debtor's estate should be s equestrated. In most cases
therefore the mere proof of an act of insolvency or of the fact that the debtor's
estate is insolvent together with proof that the debtor has assets, would be
enough to discharge the onus. If there are special circumstances which would
make sequestration disadvantageous to creditors then the onus would lie on
those who set up this contention to establish it."
34. During the course of his able argument on behalf of the Respondents, Mr de
Leeuw (who is not related to the Respondent s), relied on a number of authorities
which demonstrate that advantage to creditors may be difficult or impossible to prove
in instances where the sequestrating creditor is the only creditor of the Respondents.
35. In this regard it is worth observing, ho wever, that the argument raised on
behalf of the Respondents that there will be no advantage to creditors if the
Respondents are sequestrated and that the farm should rather be sold in execution,
is somewhat incongruous against the background of the attorney's letter which has
been quoted in paragraph 6.4 above and the statement by Mr De Leeuw which has
been quoted in paragraph 7.5 above.
12 MAN Financial Services SA (Pty) Ltd v Buys 2014 JDR 1013 (GSJ), par. 29.
12 MAN Financial Services SA (Pty) Ltd v Buys 2014 JDR 1013 (GSJ), par. 29.
13 1925 CPD 242.
14 E.g. Stockowners Co-Op Ltd v Rautenbach 1960 (2) SA 123 (E) at 128B; Puzyna v Puzyna 1962 (1)
SA 165 (C) at 166G; Mamacos v Davis 1976 (1) SA 19 (C) at 21A.
36. In Waterkloof Boulevard Homeowners Association v Yusuf 15 this court
dismissed a sequestration application because, on the facts before it, the
sequestrating creditor, who was the sole creditor, was unable to demonstrate the
necessary advantage to credi tors. In arriving at this conclusion the court relied on
Mamacos v Davids , 16 Gardee v Dhanmanta Holdings 17 and Zikalala v Body
Corporate of Selma Court.18
37. Whether an advantage to creditors has been demonstrated in a given case is
of course dependent on the facts of that case. I am of the view that there are
important distinguishing features in the present two matters which were not present
in the cases relied upon by the Respondents.
38. In Mamacos the Respondent owned bonded immovable property, but the re
was no information in the papers as to the value of the property or whether on a sale
the proceeds will be more or less than the mortgage debt. In the circumstances it is
understandable that the court found that there was no reason why the applicant
could not proceed with the attachment of the property and its sale, instead of
sequestration proceedings. 19 During the course of the judgment Burger J
distinguished a number of cases relied upon by the applicant in that matter on the
basis that in those cases the real issue was whether the debtor should have an
extension of time in which he must pay, it being alleged that given time the debtor
will eventually pay all his debts. In those cases the question as to whether the assets
were sufficient to justify the costs of sequestration did not arise. 20 The Respondents
in the present case also allege that given time, they will eventually pay the debt due.
39. The Court in Mamacos correctly held that there is no author ity for the
proposition that a creditor can insist on the sequestration of a debtor by merely
alleging that he should be examined and held that a petitioning creditor must go
15 [2023] ZAGPPHC 737 (28 August 2023).
16 Supra at 20C.
15 [2023] ZAGPPHC 737 (28 August 2023).
16 Supra at 20C.
17 1978 (1) SA 1066 (N) at 1067 and 1069.
18 2022 (2) SA 305 (KNP), par. 31.
19 20C.
20 21D - F.
further and allege facts which indicate that such an examination has some prospec t
of revealing additional assets.21
40. In Gardee advantage to creditors was the only issue to be adjudicated and
the sequestrating creditor was also the sole creditor. The Court took into account
that in the papers before it information was totally lackin g about the Respondent's
assets and nothing was known about its business activities, past or present. Neither
the extent nor the general character of its business had been revealed. The same
silence covered the details and nature of the transaction which r esulted in the
applicant's judgment against it. By way of summary the court found that there was no
evidence which suggested that anything at all would be recovered from the
Respondent's estate if it were sequestrated.22
41. It is in the foregoing context that Didcott J stated the following:
"While there may be no reason in principle why a debtor with only one creditor
should not have his estate sequestrated, the potential advantages in that
situation are inherently fewer, and the case for it is correspondingly weaker.
Then it is really no more than an elaborate means of execution, and because
of its costs an expensive one too ... [The applicant] must demonstrate some
reasonable expectation that [the benefits of sequestration] will exceed the
likely proceeds of ordinary execution. Unless he does that, the laborious and
substantially more expensive remedy of sequestration can hardly be thought
to be advantageous."
42. The decision in Zikalala does not take the matter further in the present
context, as it dealt with the situation where an owner of a sectional title property is in
arrear with the payment of levies. In that context it was pointed out that pursuant to
judgment against the owner of the unit, a sale in execution of the uni t would only
lead to transfer of the property after the outstanding levies have been paid.
21 21H.
22 1070E - G.
43. An important feature of the present two matters which in my view
distinguishes them from the approach adopted in inter alia Mamacos and Gardee is
the following: In both Mamacos and Gardee there was immovable property which
could simply have been sold in execution without the costs attendant upon a
sequestration having t o be incurred. In cases such as that it is understandable that
the court would require of an applicant to show some reasonable expectation that
the proceeds realised in a sequestration will exceed the likely proceeds of ordinary
execution. In the present m atters, however, there is no immovable property which
the Applicant can cause to be sold in execution. The available asset which can be
converted into money in order to discharge a portion of the Applicant's claim is the
shareholding of the Trust in Loumar les. On the version put forward by the
Respondents the value of the shares would probably equate to the net asset value of
Loumarles which would in turn equate to the likely proceeds emanating from the sale
of the farm minus the amount of the mortgage bond . As ABSA has already instituted
proceedings against Loumarles for a winding -up order, the effective date of the
winding-up has already arrived on the assumption that the winding -up order will be
granted. Any disposition of the property by way of a sale in execution will accordingly
be void in terms of section 341(2) of the Companies Act 61 of 1973.23
44. I am satisfied that on the papers it is appropriate to find that prima facie there
is reason to believe that it will be to the advantageous of creditors if the Trust is
sequestrated. In this regard it is common cause that the farm belonging to the
company of which the Trust is the sole shareholder, has substantial value. Although
the existence of a mortgage bond over the farm was disclosed by the Respondents,
they elected not to disclose the exact amount which is currently outstanding. It is
they elected not to disclose the exact amount which is currently outstanding. It is
accordingly appropriate to apply the statement by Watermeyer J quoted in paragraph
33 above in the present case. The Trust has simply not shown that any special
circumstances exist which would make its sequestration disadvantageous to
creditors.
23 Although the Court has the power to order otherwise. See in this regard Excellent Petroleum (Pty)
Ltd v Brent Oil (Pty) Ltd 2012 (5) SA 407 (GNP).
45. The f ollowing considerations are relevant specifically when determining
whether there would be advantage to creditors if the joint estate of the De Leeuws is
sequestrated:
45.1. The return of service in respect of Mr De Leeuw in his personal
capacity (which ha s been quoted in paragraph 12.2 above) indicates that
while no assets of Mr De Leeuw could be found at his Sinoville address, Mr
De Leeuw probably informed the Sheriff that the assets are on the farm. On
the evidence it is justified to infer at least on a prima facie basis that the
assets referred to by Mr De Leeuw in this regard must be the movable
property and animals referred to in paragraphs 6.2 and 6.3 above. This prima
facie inference is supported by the fact that Mr de Leeuw has elected not to
deal with the assets referred to in the return of service, in the answering
affidavit. Even if this inference ultimately proves to be incorrect, there are
certainly reasons for thinking that as a result of an enquiry under the Act, the
trustee may well find t hat these movable assets are the property of the joint
estate or that the joint estate has other assets which could be sold for the
benefit of creditors.
45.2. As indicated above, although the De Leeuws no longer live a luxurious
lifestyle they have been getting by financially and paying their legal team
since the final winding -up of ADL some six months ago. However, they have
not disclosed how they have been funding their more modest lifestyle.
45.3. There is a dispute on the papers whether the assets at tached as
referred to in paragraph 9 above are the property of the Trust or the joint
estate. This is also something which the trustee will be able to clarify in an
enquiry.
In the premises, it is ordered that:
Case number 2023-071111:
1. The estate of the Andre De Leeuw Familietrust, represented by its trustees for
the time being, being the Second and Third Respondents in their capacities as
trustees of the said Trust, is placed under provisional sequestration.
2. The Respondents and any other party who wishes to avoid such an order
being made final, are called upon to advance reasons, if any, why the Court should
not grant a final order of sequestration of the said estate (in the opposed motion
Court) on the 27th day of January 2025 at 10h00 or as soon thereafter as the matter
may be heard.
Case Number 2023-074271:
1. The estates of the First and Second Respondents are placed under
provisional sequestration.
2. The Respondents and any other party who wis hes to avoid such an order
being made final, are called upon to advance reasons, if any, why the Court should
not grant a final order of sequestration of the said estate (in the opposed motion
Court) on the 27th day of January 2025 at 10h00 or as soon ther eafter as the matter
may be heard.
Signed at Pretoria on this the 11th day of October 2024.
J.P. VORSTER
ACTING JUDGE OF THE HIGH COURT
COUNSEL FOR APPLICANTS: S Symon SC
N Segal
ATTORNEYS FOR APPLICANTS: Orelowitz Incorporated Attorneys
COUNSEL FOR RESPONDENTS: R De Leeuw
ATTORNEYS FOR RESPONDENTS: Diale Mogashoa Attorneys