REPUBLIC O F SOU TH A FR ICA
IN TH E HIGH C O URT OF SOUTH AFR IC A
GAUT ENG DIVISIO N , PRETORIA
Case Number : 2023-033713
(1) REPORTABLE : NO
(2) OF INTEREST TO OTHER JUDGES NO
(3) REVISED YES ~
12 August 2025 ~
DATE SIGNATURE
In the matter between:
TEMPL AR CAPITAL LTD
and
PH ILLIPPUS JACO BU S VA N DER WESTH UIZE N
JUDGMENT
CRUTCHFIELD J
Applicant
Respondent
[ 1] The applicant, Templar Capital Ltd, seeks the sequestration of the estate of the
respondent. one Ph illippus Jacobus van der Westhuizen, a major unmarried
male. The applicant is private company incorporated under the company laws
[2]
of Bermuda .
The applicant brings this application in terms of section 9(1) together with 510
of the Insolvency Act, 1936 ("the Act"). The applicant alleges that it has met the
requirements of s1 0(a) to (c) of the Act in that; the applicant has a liquidated
claim of not less than R100 .00 against the respondent, the latter has
committed an act of insolvency in terms of s8(b) of the Act, the respondent is
factually insolvent, and there is reason to believe that it will be to the
advantage of creditors if the respondent's estate is sequestrated, provisionally
at this stage.
[3] The applicant relies upon an al/ocatur issued by the Taxing Master pursuant to
a costs order made in terms of a judgment delivered by Keightly J, as the
learned judge then was , on 10 December 2020. The Taxing Master issued the
al/ocatur in the sum of R991 981.60.
[4] The applicant's two demands for payment of the amount of the allocatur were
not met by the respondent. Thereafter, the applicant attempted to execute
through the Sheriff against the respondent's property. The Sheriff returned a
nu/la bona return, the respondent having informed the Sheriff that he "has no
money or disposable property wherewith to satisfy the said warrant".
[5] Subsequent to the hearing before me , the applicant delivered an application to
file a supplementary affidavit. The respondent opposed the application to
deliver the further affidavit. I deal with this issue later in the judgment.
[6] The respondent declined to deliver an answering affidavit in the sequestration
proceedings electing instead to deliver a notice in terms of Rule 6(5)(d)(iii)
("the notice"), articulating various alleged points of law that he intended to raise
at the hearing. The respondent delivered the notice outside of the 15-day time
period permitted by the Rules and absent an application for condonation in
respect of the lateness. The applicant submitted that it was appropriate to
disallow the notice for those reasons. Notwithstanding, I am minded to permit
the notice and to deal with it on the merits of the issues raised in the notice.
[7] This being the provisional stage of sequestration proceedings, the applicant
[7] This being the provisional stage of sequestration proceedings, the applicant
must demonstrate that it meets the requirements of s9 and s10 of the Act, on a
prima facie basis.
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[8] It is apposite for me to deal briefly with the effect upon these proceedings of
the respondent's failure to deliver an answering affidavit and his reliance upon
the notice alone.
[9) This court in Ngomane v Ngomane & Others1, in circumstances where the
respondent delivered a notice in terms of Rule 6(5)(d)(iii) only, Gilbert AJ
reiterated that the election to deliver a notice in terms of Rule 6(5)(d)(iii) had
important consequences, including that the averments in the founding affidavit
are taken as established facts as there is no competing factual version.
[1 OJ The same applies in this matter before me . There is no competing factual
version and I must accept the applicant's averments in the founding papers, as
established facts.
[11] So too, in Minister of Finance v Public Protector & Others2 where the court also
dealt with a notice in terms of Rule 6(5)(d)(iii) and declared that such a notice
is not a pleading but merely a notice declaring the respondent's intention to
rely on certain specified points of law, allegedly dispositive of the disputes
between the parties. The notice being neither a pleading nor an affidavit, a
respondent relying on such a notice may not plead facts or produce evidence
in support of the points of law raised in the notice, and which ought to have
been placed before the court by way of an affidavit.
[12) In the absence of an answering affidavit, a court is at liberty to deal w ith the
matter on the points of law raised and the evidence alleged in the founding
affidavit. In circumstances where the respondent relies solely on the notice, the
averments in the founding affidavit "must be taken as established facts by the
court''.3
[13) Accordingly, in the light of the respondent's failure to deliver an answering
affidavit in this matter, the applicant's allegations are to be accepted by me as
established facts for the purposes of this application.
1 N gomane v N gom ane & O thers 2021 JOR 2491 (GJ) at [4] and [5].
1 N gomane v N gom ane & O thers 2021 JOR 2491 (GJ) at [4] and [5].
2 M inister of Finance v Public Protector & Others 2022 (1) SA 244 (GP ) at [15]
3 Minister of Finance id; Boxer Superstores Mthatha & A nother v Mbe nya 2007 (5) SA 450 (SCA ) at
452F-G; Absa Bank Ltd v P rochaska tla Bianca C ara Interiors 2009 (2) SA 512 (D ) at 514I-G .
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[14] Turning to the statutory requirements under the Act, the applicant established
an indebtedness by the respondent in favour of the applicant in the amount of
the al/ocatur, being R991 981.60 ("the debt"). The debt is undisputed and thus
the applicant established the respondent's indebtedness sufficiently for the
purposes of s10(a) of the Act read together with s9(1). Furthermore, the
applicant holds no security for the respondent's indebtedness to the applicant.
[15] Section 10(b) of the Act provides that the applicant must demonstrate prima
facie that the respondent committed an act of insolvency or is insolvent. The
requirement is disjunctive, meaning that proof on a prima facie basis of either
the respondent being factually insolvent or having committed an act of
insolvency, is sufficient for the purposes of granting a provisional sequestration
order. The applicant relies on both the respondent's factual insolvency and an
act of insolvency committed by the respondent. The respondent alleges in the
notice that the applicant does not meet either requirement of s 1 0(b).
[16] In respect of the alleged act of insolvency by the respondent, the applicant
relies on the nu/la bona return delivered by the Sheriff upon attempting to
execute the allocatur. The applicant contends in respect of the respondent's
alleged insolvency, that on the respondent's own version there is an
undisputed debt of R99 1 981.60 and that the respondent has no money or
disposable property to satisfy the warrant.
[17] Pursuant to two demands for payment that were not me t by the respondent,
the Sheriff, on the instructions of the applicant, attempted to execute against
the writ of execution on two occasions. The first attempt was unsuccessful as
the Sheriff could not locate the respondent at the given address. The Sheriff,
on the second occasion, served the writ on the respondent personally.
[18] The respondent, notwithstanding demand by the Sheriff, failed to satisfy the
[18] The respondent, notwithstanding demand by the Sheriff, failed to satisfy the
debt or indicate disposable property sufficient for the purposes of satisfying the
debt, to the Sheriff.
[19] The Sheriff recorded that the respondent informed the Sheriff that "he has no
money or disposable property wherewith to satisfy the said w arrant." The
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Sheriff's return of service, in terms of s43(2) of the Superior Courts Act, 1 o of
2013, is prima facie proof of its content.
[20] There is nothing from the respondent in terms of an answering affidavit, to
dispute or deny the contents of the return of service. The Sheriff noted on the
return4 that no disposable assets were pointed out to him and nor could
sufficient disposable assets be found despite a diligent search and enquiry
being conducted by the Sheriff. Furthermore, the Sheriff recorded that the
respondent was requested to declare whether he owned any immovable
property that was executable. At the end of the return, the Sheriff noted that
the defendant does not have assets.
[21] Accordingly, the Sheriff was unable to find sufficient disposable property to
satisfy the debt and the Sheriff stated that his return was one of nu/la bona.
[22] Subsequently, the respondent deposed to an affidavit that was remitted to the
applicant's attorneys of record in which the respondent contended that he was
a businessman and a director of a company by the name of lngwesol, that the
latter company leased the immovable property where the Sheriff located the
respondent, that the lessors of the property owned various of the immovable
property located on the premises, which movables were included in the lease
agreement. Furthermore, the respondent's partner at the time, also deposed to
an affidavit in which she alleged that she owned certain movables in the
premises.
[23] The applicant placed reliance on the content of the nu/la bona return in terms
of the founding papers. As already stated, the content of the founding affidavit
must be accepted by me as established fact.
[24] Insofar as the respondent argued that the nu/la bona return did not show that
he did not have any immovable property and that the nu/la bona return referred
to the respondent not having movable assets only, the Sheriff recorded in the
return that the respondent was specifically asked to declare if he owned any
return that the respondent was specifically asked to declare if he owned any
immovable property that was executable. Thereunder, towards the bottom of
4 Caselines 01-81.
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the return, the Sheriff stated that the respondent did not have assets, this
being an allegation that the applicant repeats in the founding affidavit.
Accordingly, the Sheriff asked the respondent specifically in respect of his
ownership of immovable property and the Sheriff recorded that there was not
sufficient disposable property, that being movable and immovable property, to
meet the debt.
[25] Whatever complaints the respondent may have in respect of the nu/la bona
return, the applicant alleges in the founding papers, these being self-standing
averments in the founding affidavit, that the respondent does not have assets
sufficient to meet his indebtedness to the applicant. Furthermore, as already
stated, in terms of s43(2) of the Superior Courts Act, the nu/la bona return is
prima facie proof of its content.
[26] Furthermore, the respondent did not put up security for the indebtedness, the
applicant says that it does not hold any security and that the respondent's
indebtedness remains unpaid. The applicant says so in the founding affidavit
and there is no contrary version from the respondent.
(27] In respect of the respondent's argument that the nu/la bona return does not
show that he has insufficient immovable property to satisfy the judgment, the
Sheriff specifically enquired in terms of the respondent's ownership of
immovable property. Additionally, insofar as the Sheriff refers to there being
insufficient disposable property available to meet the demand, "disposable
property" in terms of s2 of the Act is defined as including both movable and
immovable property.
[28] Accordingly, the respondent's argument that the applicant did not show that
the respondent holds immovable property sufficient to satisfy the debt, must
fail.
[29] In the circumstances, given that the requirement at this stage of the
proceedings is a prima facie case, the applicant has met the requirement to
show that the respondent prima facie is insolvent.
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[30] As regards the act of insolvency relied upon by the applicant, whilst it is
sufficient for purposes of a provisional sequestration order that I have found
that the respondent prima facie is insolvent, I intend to deal, in addition, with
the act of insolvency upon which the applicant places reliance.
[31] The applicant alleges that the respondent's failure to satisfy the judgment upon
the demand of the Sheriff, or to indicate disposable property sufficient to satisfy
the judgment, or that the Sheriff did not find sufficient disposable property to
satisfy the judgment, meets the requirements of s8(b) of the Act for purposes
of the respondent committing an act of insolvency.
[32] The respondent contends that the nu/la bona return is stale, given that it is
dated more than six months ago, on 1 February 2023. The respondent
contends further that the applicant did not depose to an affidavit to the effect
that the respondent's circumstances remained unchanged from the position
reflected in the Sheriff's nu/la bona return dated 1 February 2023. Nor did the
applicant bring any evidence to show that the respondent's financial position
remained unchanged.
[33] The applicant issued the application on 17 April 2023 and a date on the
opposed motion roll was obtained initially for 19 July 2024.
[34] The provisions of the Act do not require that the nu/la bona return be dated
within six months and if not so dated, that the applicant must demonstrate that
the respondent's circumstances remain unchanged. This is, however, a
practice that has arisen in the Gauteng Division but it is not a statutory
requirement for the purposes of granting a provisional sequestration order.
[35] The respondent argued that it is not for the respondent to inform this Court that
there has or has not been a change or an improvement in his financial
circumstances. Such information must be placed before the Court by the
applicant.
[36] The respondent did not raise this issue in the notice but the respondent's
applicant.
[36] The respondent did not raise this issue in the notice but the respondent's
counsel, in the best traditions of the Bar, informed the applicant's counsel that
he would raise the point, on the afternoon prior to the hearing. As a result, the
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applicant, subsequent to the hearing and during April 2025, launched the
interlocutory application referred to earlier for leave to deliver the
supplementary affidavit dealing with the issue.
(37) The respondent did not file an answering affidavit but objected to the
supplementary affidavit being admitted for purposes of this application. I
considered the application for leave to deliver the supplementary affidavit
although I did not hear argument in that regard.
(38) It is important to view the respondent's argument in respect of the nu/la bona
return being stale and the applicant's failure to bring any information
demonstrating that there was no change in the respondent's financial
circumstances, in the context of these proceedings. This application is a hostile
sequestration application. The applicant, in its founding affidavit, says that the
debt is unpaid and that the applicant holds no security for the debt. The
applicant, given the nature of this hostile application, does not have access to
the respondent's financial position or details thereof and is confined to what is
available on public platforms in respect of the respondent's circumstances.
(39] I accept that if the respondent in the interim, since the issue of the application,
had made payment towards the debt, the applicant would have deposed to a
supplementary affidavit informing the Court thereof that payments towards
liquidating the debt had been made. This has not transpired. Furthermore, the
respondent as already noted, has not deposed to any affidavit in the
proceedings and there is nothing before me from the respondent to the effect
that he has made payment.
(40] Accordingly, on the papers as they stand before me , there is nothing to
indicate an improvement or a change in the respondent's financial position,
different to that reflected in the nu/la bona return of the Sheriff.
[41] The Act does not require confirmation of the respondent's financial position as
[41] The Act does not require confirmation of the respondent's financial position as
reflected in the nu/la bona return in circumstances where the return is older
than six months. Notwithstanding, I accept that this is a salutary practice.
However, there is nothing in the Act that says that in the absence of an
applicant placing information before a court showing that there is no change in
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the respondent's circumstances, notwithstanding that the return is stale, that
the applicant should be disqualified on that point alone, from being found to
have met the requirements of a provisional sequestration order.
[42] Practice, and this is a rule of practice only, does not bind judicial discretion,
and certainly cannot serve to amend or vary the statutory requirements set out
in the Act. The fact that practice does not bind judicial discretion applies
particularly in a matter such as this where not only have there been multiple
delays as a result of the respondent failing to act timeously within the context
of contentious litigation but there are substantial delays inherent in the system
operating in this court, pursuant to the workload and the very high number of
matters being processed through the system. This fact alone, the system that
operates within our courts in respect of opposed motion proceedings, makes it
unlikely if not impossible for a nu/la bona return in opposed proceedings to be
less than six months old.
[43] In addition, the applicant is an arm's length creditor. The applicant has no
knowledge of the respondent's financial circumstances other than what
appears on public platforms and on the papers before me.
[44] The respondent, furthermore, declined to furnish any information in respect of
his financial circumstances and did not demonstrate assets to satisfy the
judgment.
[45] Accordingly, on the facts before me , the respondent prima facie does not have
assets sufficient to satisfy the debt. In those circumstances and in the context
of this matter overall, the applicant has discharged the burden of
demonstrating prima facie that the respondent's financial position has not
improved since the Sheriff provided the nu/la bona return. Accordingly, I reject
the respondent's reliance on the nu/la bona return being stale.
[46] In the circumstances of this matter, the interests of justice are served by my
[46] In the circumstances of this matter, the interests of justice are served by my
condoning the absence insofar as it is necessary to do so, of an affidavit or any
further information from the applicant to the effect that the respondent's
circumstances are unchanged.
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[47] The consequence thereof is that the applicant is entitled to rely on the nu/la
bona return for the purposes of s8(b) of the Act and the applicant prima facie
has met the requirements of an act of insolvency committed by the respondent.
[48] Accordingly, I decline to allow the applicant to deliver the supplementary
affidavit aforementioned. In my view, on the papers before me , the
supplementary affidavit is unnecessary for purposes of determining this
application.
[49] In respect of s 10(1) of the Act, an advantage to creditors, the applicant does
not have access to the respondent's financial circumstances save as set out
on publicly available platforms. As far as the applicant knows , it is the sole
creditor to the respondent's estate. The applicant is not obliged to set out a
rands and cents calculation of the benefit to creditors that will follow in the
event of a provisional sequestration order.
[50) The applicant states that the respondent is a director of 17 companies from
which, in the ordinary course, the respondent stands to receive a salary. The
applicant attaches a copy of the CIPC search reflecting that the respondent is
a director of 17 companies and a resigned director of five companies. Those
are undisputed facts before me . I can rely on those facts for the purposes of
determining whether or not there is prima facie a benefit to creditors.
[51] The applicant alleges in addition to the salary that the respondent likely
receives pursuant to his directorship of the 17 companies, that there is a
possibility of the respondent holding shares and receiving dividends as a result
of the shareholdings. In my view, it is not necessary for the purposes of
demonstrating a benefit to creditors to consider whether or not the respondent
may or may not hold shares in the 17 companies of which he is a director.
[52] The allegations in respect of the respondent being a shareholder in those
various companies amount in my view to speculation. There are insufficient
various companies amount in my view to speculation. There are insufficient
facts before me to find that the respondent is a shareholder in any of those
companies. I do however have before me the statement from the C IPC search
that the respondent is a director of those 17 companies and that is sufficient for
a finding in that regard.
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[53] Any salary that may be received by the respondent from the companies of
which he is a director can be attached to satisfy the respondent's debt to the
applicant once the concursis has been established. The applicant knows that
the respondent resides in a house leased by lngwesol, of which the
respondent is a director. The respondent says as much . The question that
arises is what consideration does the respondent pay to lngwesol for his
occupation of the premises leased by lngwesol.
[54] I need only find for the purposes of granting a provisional sequestration order
that there is a reasonable prospect that is not too remote, that some pecuniary
benefit will result to creditors from the concursis. The applicant does not need
to prove that the respondent has assets, only that there is a reasonable
prospect that is not too remote, of there being a benefit to the creditors.5
[55] Accordingly, the applicant placed sufficient before me to demonstrate that
there is a prospect that is not too remote, that a pecuniary benefit will follow
and result in favour of the creditors, from an enquiry being held into the
respondent's affairs.
[56] The respondent raised the point that the applicant did not include as an
annexure to the founding affidavit, a certified copy of the Sheriffs return of
service. The applicant, accordingly, engaged with the Sheriff only to ascertain
that the original return had been mislaid. The Sheriff provided a duplicate
original, duly certified, and placed before the Court. The respondent argued
that it was not good enough for the applicant to produce the duplicate original
after the delivery of the founding affidavit and that the duplicate original ought
to have been included in the founding affidavit.
[57] The respondent's stance cannot be countenanced. The respondent had sight
of the duplicate original well in advance of the hearing before me and the
respondent did not deliver an answering affidavit to the founding papers. The
respondent did not deliver an answering affidavit to the founding papers. The
respondent cannot and does not dispute the content of the return of service
because it did not file an answering affidavit. In the circumstances, I accept the
5 Stratford & O thers v Investec Bank Ltd & O thers 2015 (3) SA 1 (CC ).
11
duplicate original. There is no prejudice to the respondent as a result and nor
is there prejudice to the Court as a result thereof.
[58] The last issue that I must address is the delay in the delivery of this judgment. I
regret the delay and I apologise to the litigants for the delay. The volume of
work that I was expected to deal with during the week of 17 February 2025
was such that it was simply not possible for me to deliver all of the judgments
timeously within the 3-month period, that is considered appropriate.
Regrettably, this is one of the three judgments that remained outstanding after
the expiry of the 3-month period.
[59] In conclusion, having regard to the facts and circumstances set out before me,
the applicant has discharged the onus prima facie in respect of the
requirements of s9 and s 10 of the Act and I intend to grant an order in terms of
the applicant's notice of motion.
[60] In the circumstances, the following order issues:
1. The estate of the respondent, Phillippus Jacobus van der
Westhuizen, is placed under provisional sequestration.
2. The respondent 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
respondent's estate on the 17th day of November 2025 at 1 0h00 or
as soon thereafter as the matter may be heard.
3. A copy of this order must forthwith be served on :
3.1. The respondent personally;
3.2. All employees of the respondent, if any;
3.3. All trade unions of which the employees of the respondent are
members , if any;
3.4. The Master; and
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3.5. The South African Revenue Service.
4. The costs of the application are costs in the sequestration of the
respondent's estate.
I hand dow n the judgment.
For the Applicant
For the Respondent
Date or tl1!l ►1e,lnng
Date of the Judgment
CRUTCHFI EL D J
JUDGE OF TH E HIGH COUR T
PR ET ORIA
Adv J Brewer instructed by Tab acks
Attorneys
Adv Mantz instructed by Attorneys JW
Botes Incorporated.
19 February 2025.
12 August 2025
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