SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document in
compliance with the law and SAFLII Policy
IN THE HIGH COURT OF SOUTH AFRICA
KWAZULU-NATAL DIVISION, PIETERMARITZBURG

CASE NO: 11692/2023P
In the matter between:

ROBERT FELLNER-FELDEG APPLICANT

and

FRIEDRICH WILHELM GERHARD WORNER RESPONDENT
___________________________________________________________________
ORDER

The following order is granted:
1. The estate of Friedrich Wilhelm Gerhard Worner, with identity number 5[...]
and who is an unmarried male , be and is hereby place d under provisional
sequestration in the hands of the Master of the High Court, Pietermaritzburg.
2. The respondent and all other interested persons are hereby called upon to
show cause, if any, on 17 September 2025 at 09h30 or as soon thereafter as
counsel may be heard, why the estate of the respondent should not be placed under
final sequestration.
3. A copy of the provisional sequestration order is to be served on the
respondent’s employees, if any, and any trade union to which they may belong , and
on the South African Revenue Services.
The cost of this application shall be costs in the sequestration of the respondent’s
estate, on the scale of party and party costs.

JUDGMENT

Gwagwa AJ

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Background
[1] This matter was heard before me on the opposed roll on 14 March 2025.

[2] The applicant is a major male businessman wh o is a resident of South Africa,
residing at S […] Estate Portion 1 […], O[…] B[…] Road, Pietermaritzburg, KwaZulu-
Natal. The applicant also has residence in Germany at Ulrich -Kiffhaber- Strasse […],
L[…], Germany.

[3] The respondent is F riedrich Wilhelm Gerhard Worner , a major unmarried
businessman with identity number 5[...], who was born on 25 November 1955.

Nature of the case
[4] This application is for the sequestration of the respondent’s estate due to the
following reasons:
(a) The respondent has committed an act of insolvency , as contemplated in
section 8 (b) of the Insolvency Act 24 of 1936 (the Insolvency Act) in that the
respondent has, upon demand by the sheriff, failed to satisfy the judgment issued by
this court against the respondent and/or failed to indicate to the sheriff disposable
property sufficient to satisfy the judgment.
(b) In essence, the court granted an application brought by the applicant, based
on the premise that the respondent and Skema Holdings Limited (Skema) are jointly
and severally liable to pay the sum of €1 500 000 together with interest thereon to
the applicant. Furthermore, the applicant sought an order thus declaring certain
immovable properties belonging to Skema executable.
(c) The basis of the claim by the applicant emanates f rom the conclusion of a
written loan agreement in terms whereof the applicant agreed to advance an amount
of up to €2 500 000 to Skema. It appears that the respondent bound himself , jointly
and severally , as surety and co -principal debtor in the applicant’s favour for all of
Skema’s obligations in terms of the loan agreement. The applicant then advanced a
total sum of €2 500 000 to Skema. The amount was repayable in two instalments of
€1 500 000 and €1 000 000. However, neither Skema nor the respondent repaid any
amount.

€1 500 000 and €1 000 000. However, neither Skema nor the respondent repaid any
amount.
(d) The respondent lodged an application for leave to appeal and leave to appeal
was granted to the full bench.

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(e) The appeal was heard on 28 October 2021, and on 21 September 2022 , the
full court of this division dismissed the respondent‘s and Skema’s appeal.
(f) The respondent applied for special leave to appeal from the Supreme Court of
Appeal, which was dismissed on 14 D ecember 2022 . The respondent thereafter
approached the Constitutional Court, which refused the application for special leave
to appeal on 26 July 2023.
(g) The respondent accordingly remained indebted to the applica nt in the sum of
€1 500 000, by virtue of the judgment granted under case number 2082/2021P.
(h) Another application was brought by the applicant on 18 August 2022 , under
case number 10933/2022P, against the respondent and Skema. In that applicant, an
order directing the respondent and Ske ma, jointly and severally, to pay the sum of
€1 000 000 (being the balan ce of the original loan of €2 500 000), together with
interest thereon was sought . The following order was granted by consent on 2
November 2022:
‘It is ordered that:
1. The matter be and is hereby adjourned sine die pending the final determination of the
application p ending in this Court under Case no: 2082/21P and AR 32/22 (“the First
Application”) as well as any further processes available to any of the part ies in respect of the
First Appl ication in terms of section 17 of the Superior Court Act no 10 of 2013 and/or in
terms of Rule 19 of the Constitutional Court Rules (GN R1675/2003).
2. This matter shall follow the result of the above final determination muta tis mutandis,
inclusive of costs.
3. The parties are given leave to approach this court on 5 days’ notice to the
Respondent or the Applicant, once the First Application has been finally determined for an
order to give effect to paragraph 2 above.’

[5] Pursuant to the respondent’s refusal by the Constitutional court on the
application for leave to appeal, the respondent still remains indebted to the applicant

application for leave to appeal, the respondent still remains indebted to the applicant
in the sum of €2 500 000, if converted into Rands (as at 4 August 2023), it amounts
to R51 253 152.18 (excluding any interest).

[6] On 26 July 2023, the applicant caused a warrant of execution to be issued by
the registrar of this court.

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[7] Pursuant to the dismissal of the leave to ap peal at Supreme Court of Appeal,
further to that dismissal, the Constitutional Court refused to en tertain such Appeal.
As a result, the applicant’s attorneys, on 22 December 2022, caused a letter of
demand to be addressed to the respondent’s and Skema’s attorneys of record . The
letter demanded payment of €1 500 000 in lieu of a judgm ent debt, which remained
outstanding since 24 January 2017 , together with interest to date , by 3 January
2023. A second letter of dema nd for €1 000 000 was sent by the a pplicant’s
attorneys to the respondent’s and Skema’s attorneys, calling for payment to be made
by 3 January 2023 . On 2 August 2023 , the sheriff served the warrant of execution
personally upon the respondent.1 The sheriff explained the nature and the exigency
of the warrant to the respondent. The sheriff demanded payment of the debt from the
respondent. However, in respon se to the sheriff, the respondent advised the sheriff
that he had no sufficient movable assets or cash to satisfy the outstanding debt.
Prima facie, there were no movable assets belonging to the respondent that were
pointed out to the sheriff nor could the sheriff find anything after a conducting a
diligent search and enquiry thereto. The sheriff thereafter issued a nulla bona return.

[8] Subsequent thereto, the respondent’s attorneys wrote a ‘without prejudice ’
letter to the applicant’s attorneys of record, which read as follows:
‘As you may be aware, as our client does not have the available funds to settle the loan, he
is in discussions with Land Affairs and other prospective purchasers with a view to selling
most of the remaining properties on Saxony. We are advised that Land Affairs are very
interested in purchasing and are currently undertaking a full investigation. A sale to Land
Affairs will understandably not be in the interest of either your client or some of the other
parties.

parties.
We are instructed that your client advised our client during a meeting in November 2020 that
he would be amenable to purchasing most of the remaining properties but that was not at
that stage prepared to pay R2 million per property, which our client still believe is a fair price
for each of the properties.
Our Client will be overseas for the next 2 weeks but has indicated as a preliminary proposal
that he would be prepared to sell your client sufficient properties in Saxony to cover the
loans, interest and cost. By purchasing the majority of the properties, your client will be able
to protect his existing investment from a sale to purchaser not acceptable to him.

1 Annexure “PH8” at page 34 of the founding affidavit.

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Please take instructions and advice whether your client would be prepared to entertain a
proposal of this nature, and if so, what would be his thinking regarding the value of each of
the properties to be purchased.’

[9] The applicant further submit ted that, the letter written by Coetzee marked
‘without prejudice ’ who are the attorneys of record of the respondent, should be
regarded as prima facie evidence as admissible in this application , as evidence
exists that the respondent has committed an act of insolvency as contemplated in
section 8(g) of the Insolvency Act. The letter served as prima facie facts regarding
the status quo of the respondent’s finances and that the respondent was unable to
pay his debt owed to the applicant.

[10] The applicant alleged that the respondent has committed an act of insolvency
as contemplated in section 8(g) of the Insolvency Act.

[11] The respondent remains indebted to the applicant for the amount s previously
mentioned.

[12] It is the applicant ’s contention that proper security , as required in terms of
section 9(3) of the Insolvency Act , will be furnished to the Master of this court (‘the
Master’) and the relevant certificate will be filed with this application.

[13] It is further submitted by the applicant that a copy of the court order will be
served by the sheriff, upon an enquiry from the respondent regarding the exi stence
of employees and if the respondent does have employees, a copy of this application
will be furnished to such employees and to any trade union to which they may belong
in compliance with the provisions of sections 9(4A) (a)(i) and (ii) of the Insolvency
Act.

[14] In response, the respondent, however, refers to section 9(3) (a)(iv) of the
Insolvency Act which states that ‘whether the claim is or is not secured and, if it is ,
the nature and value of the security ’. Furthermore, section 2 of the Insolvency Act
defines security as follows:

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‘in relation to the claim of a creditor of an insolvent estate, means property of that estate over
which the creditor has a preferent right by virtue of any special mortgage, landlord’s legal
hypothec, pledge or right of retention’.

[15] However, the respondent acknowledges in his affidavit that the applicant
holds no security, as defined in the Insolvency Act over any property that belongs to
the respondent. Nonetheless, he further claims that the applicant does hold secu rity
against him, in the form of a substantial security provided by the principal debtor,
namely Skema , for the claim against the respondent, who act s as surety and co -
principal debtor.

[16] The respondent further acknowledges in his answering affidavit that the claim
arose from a loan which was advanced by the applicant to Skema, as result of which
the applicant obtained judgment against Skema and the r espondent, jointly and
severally, and in terms of the judgment ‘certain immovable properties belonging to
Skema were declared executable’.

[17] The respondent further refers to the following extract from Bedderson J’s
judgment:2
‘He further seeks an order declaring executable a number of immovable properties which
have been put up as security for the loan that he had advanced to the first respondent and
which are subject to a covering mortgage bond registered in his favour.’

[18] The respondent contends t hat this application has been brought deliberately
in accordance with the applicant’s ulterior motive.

[19] Furthermore, it is the respondent’s contention that the applicant’s application
is an abuse of process as it seeks to bring about a concursus creditorum and not the
recovery of a debt.

[20] The applicant further failed to include other creditors who desire to or which
support his application for sequestration against the respondent.


2 Fellner-Feldegg v Skema Holdings (Pty) Ltd and Others [2021] ZAKZPHC 80 para 1.

7

[21] It is the respondent’s contention t hat the applicant deliberately engineered a
nulla bona return, which the respondent claims to be invalid and as such cannot b e
relied upon under the prevailing circumstances.

[22] The respondent further refers to the liquidation application brought by the
applicant against Skema Holdings Proprietary Limited (Skema) under case no:
11692/2023, where the applicant has failed to disclose a cause of action aga inst
Skema. That it is excipiable and should therefore be dismissed with costs, including
cost of senior counsel on the grounds that stipulated under s 345(1) of the
Companies Act 61 of 1973:
‘(1) A company … shall be deemed to be unable to pay its debts if—
(a) a creditor … to whom the company is indebted in a sum not less than one hundred
rand then due—
(i) has served on the company, by leaving the same at its registered office, a
demand requiring the company to pay the sum so due; or
(ii) …
and the company … has for three weeks thereafter neglected to pay the sum, or to
secure or compound for it to the reasonable satisfaction of the creditor; or
(b) any process issued on a judgment, decree or order of any court in favour of a creditor
of the company is returned by the sheriff or the messenger with an endorsement that
he has not found sufficient disposable property to satisfy the judgment, decree or
order or that any disposable property found did not upon sale satisfy such process; or
(c) it is proved to the satisfaction of the Court that the company is unable to pay its
debts.’

[23] It is the respondent’s contention that the applicant has already exercised his
option by obtaining judgment and declaring some of the immovable property
belonging to the respondent to be executable. Therefore , the applicant is bound by
the doctrine of election and is as such precluded from pursuing any sequestration
application prior to execution against the mortgaged properties, which also include

application prior to execution against the mortgaged properties, which also include
the sale thereof, and that the applicant should receive those proceeds obtained from
such envisaged sale.

8

[24] The further contention of the respondent is that in terms of a valuation
conducted by Mr Graham Allan, a professional valuator, the valuation of the
mortgaged properties amounts to R146 800 000, which far exceeds the applicant ’s
claim.3

[25] He further refers to the municipal valuation for the 2022 and 2016, which
amount to R166 457 743.58 and R155 436 534.60, respectively. These valuations
far exceed the applicant’s claim.

Issue for determination
[26] This court has to determine whether the applicant has met all the
requirements set to satisfy that th e order for sequestration be granted by this court,
alternatively whether such sequestration application should to be stayed pending the
final outcome of any of the execution proceedings by the applicant against the
mortgaged immovable properties belonging to Skema.

[27] Furthermore, this court will have to determine whether the sheriff who served
the warrant of execution on the respondent had jurisdiction to serve such warrant. It
is the contention of the respondent that the sheriff did not have jurisdiction to serve
such warrant, and therefore such nulla bona return of service is invalid for want of
jurisdiction.

[28] Lastly, the court has to consider whether th e application was brought as an
abuse of the court process by applying for t he respondent’s sequestration ,
alternatively whether the applicant had an ulterior motive in bringing this application.

Legal principles
[29] It has been held in the case of “ Boere Se Koöperatiewe Wol En Produkte
Unie Bpk v Kruger 4, that if a deputy -sheriff serves a summons outside his district,
such service is invalid. A translated version of the judgment is available and is
attached.

3 In the respondent’s answering affidavit in page 90. The valuation is marked as Annexure ‘SH8’.
4 Boere Se Koöperatiewe Wol En Produkte Unie Bpk v Kruger 41969 (4) SA 215 (NC).

9

The following is also stated in A C Cilliers, C Loots and H C Nel Herbstein and Van
Winsen: Civil Practice of the High Courts and the Supreme Court of Appeal of South
Africa 5 ed (2009) at ch11-p344
‘Inasmuch as a sheriff, acting sheriff or deputy sheriff is appointed for a particular
area, it is submitted that each of these officials can serve only within the limits of that
area, and that service outside the area of appointment will be bad.’
See also Barclays National Bank Ltd v Wentzel 1978 (3) SA 976 (O) and D
Harms Civil Procedure in the Superior Courts (March 2025, SI 81) para B4.3.
However, section 43(2) of the Superior Court Act 10 of 2013 provides as follows:
‘The return of the sheriff or a deputy sheriff of what has been done upon any process
of a court, shall be prima facie evidence of the matters therein stated.’
In Absa Bank Ltd v Collier 2015 (4) SA 364 (WCC) para 43 it was held that the
evidential burden lies on the person disputing the return of service:
‘Prima facie evidence calls for an answer and places an evidential burden on the
respondent. It follows that where a respondent seeks to impeach a return of the
sheriff this must be done on “the clearest and most satisfactory evidence”. It is not
open to a respondent to impeach a return on flimsy grounds or when there exists no
reasonable basis on which to do so.’ (Footnote omitted.)”

[30] In another case of Body Corporate of DSL v Lunika and Another,5 where
Judge Hassim granted a provisionally sequestration against the respondent on the
25 August 2022, which was extended to 15 November 2023. The final sequestration
was not granted but was extended to 15 August 2024 and further ordered that the
heads of arguments be filed on the 12 August 2024.

[31] In SJC v TRC,6 the following was held:
‘8. Section 10 of the Insolvency Act provides as follows:
“If the court to which the petition for the sequestration of the estate of a debtor has been
presented is of the opinion that prima facie-

presented is of the opinion that prima facie-
(a) the petitioning creditor has established against the debtor a claim such as is
mentioned in subsection (1) of section nine; and
(b) the debtor has committed an act of insolvency or is insolvent; and

5 Body Corporate of DSL v Lunika and Another [2024] ZAGPPHC 804.
6 SJC v TRC [2022] ZAWCHC 256 paras 8-11 and 23.

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(c) there is reason to believe that it will be to the advantage of creditors of the debtor if
his estate is sequestrated,
it may make an order sequestrating the estate of the debtor provisionally.”
9. The claim mentioned is section 9(1) is a claim of at least R100,00.
10. Even if the papers disclose disputes of fact, an applicant will nevertheless succeed
in establishing a prima facie case where he or she can show that “ on a consideration of all
the affidavits filed [that] a case for sequestration has been established on a balance of
probabilities”, though open to some doubt (Kalil v Decotex (Pty) Ltd and another 1988 (1) SA
943 (A) at 978D-E).
11. I proceed to consider each of these requirements in turn.
…
23. In Gilliat v Sassin 1954 (2) SA 278 (C) the issue was whether the applicant creditor
had a liquidated claim in circumstances where she relied on an amount due to her as heir in
terms of the first and final liquidation and distribution account in her late mother’s estate,
which the respondent, the executor, had misappropriated out of the estate. The respondent
took the point that the estate account had not yet been finally approved by the Master, and
that it was possible that the Master might req uire amendments to the estate account, in
which case the amount due to the applicant would be subject to alteration. The court was
called upon to determine whether, in these circumstances, the applicant had a liquidated
claim entitling her to apply for the sequestration of the respondent’s estate. The court held as
follows at 280A-D:
“To be regarded as a liquidated claim the petitioner’s claim must be fixed and
determined. This Court, in the case of Stephan v Khan 1917 CPD 24 – a decision which
has frequently been followed not only in this Court but in other Courts – held that
“liquidated claim”, as those words are used in sec. 9(1) of the 1916 Insolvency Act,

“liquidated claim”, as those words are used in sec. 9(1) of the 1916 Insolvency Act,
mean a claim the amount of which has been determined by a judgment of the Court, by
agreement or otherwise.
Now, in the present case the amount of the petitioner’s claim – and indeed whether she
will have a claim at all – is conditional upon whether the account in the estate of the
petitioner’s late mother is accepted in the form in which it presently stands. The account
has, however, still to be advertised and objection may successfully be taken thereto,
which might have the effect of reducing her claim or even eliminating it altogether .
Mr.Meyerowitz stated that in any event she had a prima facie claim to the a mount
appearing in this account and that it was highly probable that an amount would
eventually be found to be due to her which would be in excess of £ 50. This may be so,
but to my mind this does not go far enough to satisfy the provisions of sec. 9(1), which
require a liquidated claim.” (Emphasis added.)’ (Formatting as in the original judgment.)

11


[32] In Johnson v Hirotec (Pty) Ltd ,7 the court dealt with a court’s discretion on
whether to grant a final or provisional liquidation and held as follows:
‘[9] … The Act does not require a final order to be preceded by a provisional order, but
in Kalil v Decotex (Pty) Ltd and Another 1988 (1) SA 943 (A) at 976A - B Corbett JA referred
to the practice, which he regarded as well -established, of granting a provisional order of
winding-up and a rule nisi calling upon persons concerned to show cause why a final order
should not be granted. From the information given to us by counsel it would seem that there
is no longer a uniform practice in this regard throughout the country. According to
the Practice Manual of the Transvaal Provincial Division, a Judge of that Division appears to
have a wide discretion to grant a provisional or a final winding -up order, as the case may
require, and is under no constraint to issue a provisional order as a matter of course.

[33] The SCA in Absa Bank Ltd v Hammerle Group8 held as follows:
“[13] It is true that as a general rule, negotiations between parties which are undertaken
with a view to a settlement of their disputes are privileged from disclosure. This is
regardless of whether or not the negotiations have been stipulated to be without
prejudice. However, there are exceptions to this rule. One of these exceptions is that an
offer made, even on a 'without prejudice' basis, is admissible in evidence as an act of
insolvency. Where a party therefore concedes insolvency, as the respondent did in this
case, public policy dictates that such admissions of insolvency should not be precluded
from sequestration or winding -up proceedings, even if made on a privileged occasion.
The reason for the exception is that liquidation or insolvency proceedings is a matter
which by its very nature involves the public interest. A concursus creditorum is created
and the trading public is protected from the risk of further dealing with a person or

and the trading public is protected from the risk of further dealing with a person or
company trading in insolvent circumstances. It follows that any admission of such
insolvency, whether made in confidence or otherwise, cannot be considered privileged.
This is explained by the words of Van Schalkwyk J in Absa Bank Ltd v Chopdat, when he
said:
'[A]s a matter of public policy, an act of insolvency should not always be afforded the
same protection which the common law privilege accords to settlement negotiations. A
creditor who undertakes the sequestration of a debtor's estate is not merely engaging in
private litigation; he initiates a juridical process which can have extensive and indeed
profound consequences for many other creditors, some of whom might be gravely

7 Johnson v Hirotec (Pty) Ltd 2000 (4) SA 930 (SCA) paras 9-10.
8 Absa Bank Ltd v Hammerle Group [2015] ZASCA 43; 2015 (5) SA 215 (SCA) para 13.

12

prejudiced if the debtor is permitted to continue to trade whilst insolvent. I would
therefore be inclined to draw an analogy between the individual who seeks to protect
from disclosure a criminal threat upon the basis of privilege and the debtor who objects
to the disclosure of an act of insolvency on the same basis.' In the final analysis, the
learned judge said at 1094F: 'In this case the respondent has admitted his insolvency.
Public policy would require that such admission should not be precluded from these
proceedings, even if made on a privileged occasion.'’’

Analysis of evidence
[34] It is applicant’s contention that the respondent has committed an act of
insolvency as contemplated in s 8(b) of the Insolvency Act in that the respondent
has, upon demand by the sheriff, failed to satisfy the judgment against the
respondent and/or failed to indicate to the sheriff disposable property sufficient to
satisfy the judgment.

[35] The applicant’s legal representative caused a letter to be written on 2 August
2023, which was addressed to the respondent, which was served personally upon
the respondent.

[36] The sheriff return of service of Mgungundlovu West reads as follows:
‘On this 02 day of August 2023 at 12:40 I served this WARRANT OF EXECUTION AGAINST
PROPERTY on FRIENDRICH WILHEL GERHARD WRNER personally at KARKLOOF
SAFARI SPA, O […] B[…] ROAD, KARKLOOF by handing a copy thereof to the
abovementioned after explaining the nature and exigency o f the said process. ( Rule 4(1)(a)
).
Further, it is hereby certified that at the above address, th e amount of 1.500.000.00 ( One
Million Five Hundred Thousand Euro) had been demanded from Friedrich Wilhel Gerhard
Worner.
Friedrich Wilhel Gerhard Worner, however, informed me that he had no money or attachable
assets to satisfy the said warrant or a portion thereof. No movable goods/disposal assets
were pointed out there, or could be found by me after a diligent search and enquiry at the

were pointed out there, or could be found by me after a diligent search and enquiry at the
given address. Therefore my return is one of NULLA BONA, in respect of the given address,
it is not known whether Fr iedrich Wilhel Gerhard Worner has any assets at any other
address.’
The return of service became a prima facie of evidence of a nulla bone return.

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[37] A second judgment was granted on 18 August 2024 for the sum of
€1 000 000.

[38] The total amount due and payable is €2 500 000, together with interest.

[39] It is clear that according to the sheriff’s return, when he demanded movable
assets or cash to satisfy the debt from the respondent. The respondent informed the
Sheriff that he had insufficient movable assets or cash with which to satisfy the debt
due and payable in favour of the applicant.

[40] Counsel for the applicant, Mr Lotz SC, argued that the sheriff returned a nulla
bona return of service , which indicated that the respondent had no movable assets
or cash readily available to satisfy the debt of the applicant. He further referred to the
letter written by the respondent’s attorneys on a ‘without prejudice ’ basis, who
indicated that the respondent does not have available funds to settle the loans or the
debts of the applicant.

[41] He further argued that the respondent has committed an act of insolvency , as
provided for in section 8(g) of the Insolvency Act .

[42] Counsel for the respondent, Mr Harpur SC , vehemently challenged the
jurisdiction of the sheriff who served the warrant of execution . It was submitted that
the sheriff did not belong to the magisterial jurisdiction of the Mswati area, who was
better placed to serve such warrant of execution and therefore such return of service
becomes invalid for want of jurisdiction. However , the only thing that the
respondent failed to do was to impeach the sheriff with valid grounds not flimsy
reasons as illustrated or demonstrated in paragraph 29 above. Therefore without
exercising his rights to challenge the sheriff weakened his defence in this scenario .
Anything further challenge on the jurisdiction of the sheriff will not take the court in its
confidence without such compliance by the respondent .

[43] It is further the contention of the respondent that the applicant purely brought

[43] It is further the contention of the respondent that the applicant purely brought
this sequestration application as an abuse of the court process.

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[44] Mr Harpur further argued that the applicant has brought this application as an
abuse of power against the respondent.

[45] The main argument by Mr Harpur was that the court could exercise its
discretion and stay the provisional sequestration , pending the sale of the mortgaged
properties of the respondent, and in the event of insufficient payment, the court may
then entertain such provisional sequestration. It is also the argument of the
respondent that placing him under sequestration is not to the advantage of other
creditors. In Kalil v Decotex (Pty) Ltd and Another 9 the court held that it had a wide
discretion whether to grant provisional or final liquidation.

[46] It is not disputed by the respondent that the a pplicant is owed a sum of
€2 500 000.

[47] The aforesaid amount has not been recovered from the respondent. The
court has to determine whether an act of insolvency has been committed , before the
issue of whether the sheriff had jurisdiction to serve upon the respondent is dealt
with. It is clear that a liquid amount was owed to the applicant. The court will not
repeat the circumstances pertaining to the existe nce of a loan agreement , as those
facts have previously been mentioned, suffice it to mention that the amount in
question is not in dispute. The submissions made by Mr Lotz that the respondent
had committed an act of insolvency , as contemplated in s 8 (b) and (g) of the
Insolvency Act can only be viewed with the evidence of the sheriffs return of service,
which is disputed by the respondent without any basis in law.

[48] It was stated in Absa Bank Ltd v Hammerle Group10, that a letter written on a
‘without prejudice’ basis is admissible evidence as an act of insolvency . I am
satisfied that an act of insolvency has been committed by the respondent, as
contemplated in 8 (b) (g) of the Insolvency Act and/or w hen the sheriff demanded
assets or money to satisfy the debt of the respondent, where the respondent could

assets or money to satisfy the debt of the respondent, where the respondent could

9 Kalil v Decotex (Pty) Ltd and Another 1988 (1) SA 943 (A) page 50-51.
10 Absa Bank Ltd v Hammerle Group [2015] ZASCA 43; 2015 (5) SA 215 (SCA) para 13.

15

not produce any assets or money thus satisfying the elements of insolvency on its
own. The submission presented by the respondent by denying the contents of the
return of service has no basis in law , as the respondent failed to impeach the sheriff
as alluded in paragraph 36 above. The applicant could not manoeuvre any return of
service on his own, for what purpose indeed, does not make sense at all. The sheriff
is best placed to fulfil his/her duties within the prescript s of the law bestowed upon
the sheriff to perform those duties.

[49] There is no basis in law by the respondent when he challenged the
jurisdiction of the sheriff without impeaching the sheriff as illustrated in the case of
Boere Se Koöperatiewe Wol En Produkte Unie Bpk v Kruger 11, who served him with
the warrant of execution, the crux of the matter is that the respondent could not
produce assets or money to satisfy the outstanding money owed to the applicant. I
am not persuaded by the respondent’s contention that the applicant has abused the
court process , rather his submission lacks sufficient evidence to support his
argument.

[50] The court is satisfied that the acts of insolvency have been committed in line
with principle laid down in th e SJC v TRC 12 mentioned in paragraph 31 above,
which resonate with this case before me.

[51] I agree with the submissions made by Mr Lotz that the respondent has
committed an act of insolvency in line with s 8(g) of the Insolvency Act.

Order
[52] I therefore make the following order:
1. The estate of Friedrich Wilhelm Gerhard Worner, with identity number 5[...]
and who is an unmarried male , be and is hereby place under provisional
sequestration in the hands of the Master of the High Court, Pietermaritzburg.
2. The respondent and all other interested persons are hereby called upon to
show cause, if any, on 17 September 2025 at 09h30 or as soon thereafter as

11 Boere Se Koöperatiewe Wol En Produkte Unie Bpk v Kruger 1969 (4) SA 215 (NC).

11 Boere Se Koöperatiewe Wol En Produkte Unie Bpk v Kruger 1969 (4) SA 215 (NC).
12 SJC v TRC [2022] ZAWCHC 256 paras 8-11 and 23.

16

counsel may be heard, why the estate of the respondent should not be placed under
final sequestration.
3. A copy of the provisional sequestration order is to be served on the
respondent’s employees, if any, and any trade union to which they may belong , and
on the South African Revenue Services.
4. The coast of this application shall be costs in the sequestration of the
respondent’s estate, on the scale of party and party costs.




_____________________
GWAGWA AJ

17

APPEARANCES

For the applicant: Mr Lotz SC
Instructed by: Hay & Scott Attorney

For the respondent: Mr Harpur SC
Instructed by: Shepstone & Wylie Attorney

Heard: 14 March 2025
Delivered: 01 September 2025