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REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, PRETORIA
Case No: 49097/2023
(1) REPORTABLE: NO
(2) OF INTEREST TO OTHER JUDGES: NO
(3) REVISED: NO
12 August 2025
In the matter between:
THE BODY CORPORATE OF INCASA APPLICANT
and
MALINGA EDWARD MUSEHANE FIRST RESPONDENT
ESTHER MUSEHANE SECOND RESPONDENT
JUDGMENT
GOUWS, AJ
INTRODUCTION
[1] This is the return day of a rule nisi issued on 25 November 2024 provisionally
sequestrating the joint estate of the respondents. The matter now serves before
me for the confirmation or discharge of the provisional order.
[2] The applicant is the Body Corporate of Incasa Scheme No SS61/1980.
[3] The respondents are Mr Malinga Edward Musehane and Mrs. Ester Musehane,
respectively the first and second respondents, married in community of
property, and co- owners of the property at 5[...] I[...] , 2[...] J[...] Street,
Sunnyside, Pretoria.
[4] The first respondent appeared in person during the hearing. There was no
appearance for the second respondent.
FACTUAL BACKGROUND AND HISTORY
[5] The application for sequestration, launched on 24 May 2023, is predicated
upon arrear levies in the approximate amount of R220,000.
[6] At the time of the institution of the proceedings, the applicant had already
obtained no fewer than three default judgments against the respondents for the
recovery of arrears levies, all of which remain unpaid.
[7] The applicant also caused a writ of execution to be issued pursuant to these
judgments. A nulla bona return was obtained from the Sheriff consequent upon
an attempt to execute on the writ.
[8] The litigation has a cumbersome history, mainly hallmarked by the respondent
filing a substantial number of applications and affidavits in purported opposition
to the application. These documents have consistently been brought to court
with little or no regard for proper procedure, time periods or the rules of court in
general. I briefly expatiate.
[9] The respondents filed a notice of intention to oppose the sequestration
application on 6 November 2023.
[10] On 17 April 2024 the answering affidavit was filed. This was months out of time.
It purports to deal with the aspect of condonation for the late filing, but I am
unable to extract therefrom any factual basis that could inform an explanation
for the delay. Their primary defences raised in this answering affidavit included
(i) improper service of the application; (ii) denial of the quantification of the
judgment debts; and (iii) lack of authority of the applicant.
[11] On 6 August 2024 the first respondent delivered a notice entitled “Application
for Objection to Tanya Krog of Kleynhans and Swanepoel Inc as Attorneys of
Record”, together with a supporting affidavit. It is unclear in terms of what rule of
court this objection application was brought. The status of this application is
also unknown. The gist of the submission there is that the attorney’s mandate is
terminated by the body corporate. It is also stated that the persons operating as
the body corporate operates as an action group in the ”guise name” of Incasa
Body Corporate.
[12] Insofar as this application was supposedly instituted by virtue of rule 7 of the
uniform rules, it was out of time, with no request for the court’s leave as
envisaged in rule 7(1).
[13] On 22 October 2024 a rule 7 notice, accompanied by an affidavit, was filed—
again significantly outside of the prescribed time periods and without any
application for leave. This application was enrolled for the 25
th of November
2024, the day that the opposed sequestration application was ultimately to be
heard. The objection set out in the previous affidavit was mirrored there, the
respondents contending that the applicant’s attorney lacked capacity to act
because the Incasa Body Corporate had terminated their mandate.
[14] A further supplementary affidavit was filed on 24 November 2024. No leave was
sought to file this affidavit. This affidavit states that the respondents are intent to
“remove and replace” the content of the original answering affidavit. In this
affidavit the first respondent also produced a letter, purportedly authored
by the Incasa Body Corporate, confirming that the attorney’s mandate
was invalid.
[15] The termination letter to Kleynhans and Swanepoel attorneys dated December
2023 was included. On circumspection the letter was co- signed on behalf of the
Incasa Body Corporate by the first respondent, purporting to act in some
capacity as a part of the Incasa body corporate. Significantly, the letter also
states that, at time of obtaining the court orders by Incasa, that the respondents’
levies were up to date and that they have accordingly been “exonerated”.
[16] On 7 May 2025, 5 days prior to the hearing of the return date, the respondents
filed yet another Rule 7 notice with an affidavit. This notice and accompanying
affidavit was similarly filed without leave of the court. On the face of it there was
an indication that it was to be heard on 12 May 2025.
[17] During the day of the hearing the first respondent handed up a further
supplementary affidavit. No application for condonation or leave to file same
accompanied the affidavit. Of note in this affidavit is the allegation that the
applicant has not exhausted their remedies (mediation, negotiation and
execution). The respondents also again reiterate that the trustees of Incasa are
acting unilaterally and without proper mandate. The respondents also therein
contend that they are not factually insolvent, referencing ownership of 2
properties (without reference to any encumbrance on these properties).
[18] The affidavit does not meaningfully assist the respondents to any extent. In any
event, the applicant has had no opportunity to respond to this affidavit. In light
of the procedural deficiencies, I do not admit same, nor the rule 7
application brought on 7 May 2025.
[19] None of the balance of the documents adverted to above were admitted by this
Court, and the respondents did not seek condonation or leave for such
documents to be filed.
[20] In order to bring an element of finality to the current iteration of the dispute, I
am constrained to deal with the content of the documents filed by the
respondents, however irregularly it has been presented. (I am also constrained
to speculate that my brother Ramawele, AJ would have dealt with the late rule 7
application when the provisional order was granted.)
DISCUSSION
[21] At the core of the respondents' challenge is the allegation that the applicant
body corporate did not authorise the proceedings and that the current attorneys’
mandate had been terminated. As it turns out, these assertions are premised on
a supposed resolution by a "breakaway" group of trustees within the scheme, of
which the first respondent is evidently a part.
[22] This so-called rival body corporate was the subject of a detailed judgment by
my brother Swanepoel J in the urgent court on 23 October 2023, in which he
remarked:
"[6] The adjudicator held against the applicant in respect of all the relief
sough, either on the basis that no case was made out, or that the relief
sought was moot. However, somehow, the applicant interpreted the
adjudicator’s findings to mean that it granted them leave to hold their own
general meeting, and to choose their own trustees. To that end they
drafted their own “constitution”, and they held a meeting of aggrieved
owners on 24 July 2023. At this meeting new “trustees” were chosen, it is
those trustees who now drive this application….
[8]…Applicants’ members do not seem to understand that they cannot
simply hold their own meeting and install a rival board of trustees. They
also do not understand that nothing in the adjudicator’s findings gives
them that authority."
[23] Despite the fact that the rule 7 applications are not properly before me, I am in
any event satisfied that the applicant is properly represented and that the
mandate of its attorneys remains intact.
[24] Paragraph 7 of the founding affidavit evinces that the institution of proceedings
was properly authorised.
[25] The respondents’ reliance on the breakaway group’s purported termination
notice is misplaced, seeing as this notice has no legal force, having seemingly
been authored pursuant to an attempted coup of the applicant’s body corporate.
[26] It is evidently then also this breakaway group, to which the first respondent
belongs, that authored the letter to the first respondent that confirms that the
outstanding levies have been exonerated.
[27] As at the time of the application, the arrears with respect to the outstanding
levies stood at R203,897.53. At 20 August 2025 this had escalated to
R260,296.25.
[28] The respondent has not produced proof of the payment of any levies.
[29] The respondents have throughout employed a stratagem, where affidavit upon
affidavit is filed without proper leave from court, or any procedural compliance.
[30] Their failure to substantively engage with the merits of the application, provide
proof of payment, or demonstrate a bona fide dispute of fact, confirms a
Stalingrad strategy intended to delay the inevitable.
THE POSTPONEMENT
[31] During argument, the first respondent was directly asked by the court whether
the indebtedness was admitted. Surprisingly, his response was that he couldn’t
say whether the applicant was owed money. He then sought a postponement
from the bar to allow time to visit his bank in order to reconcile payments. No
substantive application for postponement, supported by affidavit, was
forthcoming.
[32] The respondents have had ample time to raise genuine defences, provide
supporting documents, or challenge the quantum credibly. The first respondent
could not provide any convincing reason why he could not previously have
visited his bank in order to do the exercise the postponement would now
allegedly allow for. To procure proof of the payment of levies is a simply enough
exercise, and the respondents have been aware of the pending application at
least since 6 November 2023. As at date of hearing the respondents have not
been able to produce any form of proof of payment of their levy obligation,
despite ample opportunity to do so.
[33] It is accordingly apparent is that this request for a postponement is to nothing
other than a delaying tactic, aimed at preventing the granting of a final order for
sequestration.
[34] There is no proper application for postponement before me. There is in any
event no cogent reasons raised for the granting of such an application.
[35] It is trite that a postponement is an indulgence, and not simply there for the
taking. It is an indulgence sought that may be granted subject to considerations
of prejudice to all concerned.
[36] The prejudice to the applicant body corporate, and the other members of the
scheme continues to grow. The scheme’s financial viability depends on the
timely contributions of all owners. Continued non-payment by the respondents
compromises the integrity of the scheme.
[37] Seeing as the respondents are not contributing to levies at all, it seems a fair
inference that the situation will only worsen over time. Full recovery of the
compounded levies appears dubious. The deterioration of the situation must be
arrested forthwith.
[38] The application for a postponement is refused.
ELEMENTS FOR SEQUESTRATION AND FORMAL REQUIREMENTS
[39] The rule nisi was served in substantial compliance with the order of Ramawele
AJ, which dictates the manner of service of the provisional order. I pause to
mention that service had throughout been effected under the imprimatur of
court through the device of substituted service. The measures put in place by
my brother Ramawele, AJ , as was borne out in the provisional order,
corresponded with the substituted service order. The provisional order was
transmitted to the respondents’ last known email addresses and via SMS to
their mobile numbers. I do not find any evidence that the order was served at
the domicile address as per the order. I am however satisfied that there has
been substantial compliance with the order. The order makes provision for the
furnishing of a pre- scripted sms message to the respondents’ cell phones .
Included in this message is an invitation to contact the applicant’s attorney with
any further queries. The attorney’s name and contact details are included. In any
event, the first respondent was present in court.
[40] I am satisfied that the applicant has made out a proper case for the granting of
a final order for sequestration. The respondents have committed a deed of
insolvency and are in all likelihood also factually insolvent.
[41] There is reason to believe that a sequestration would result in a benefit to
creditors, if for no other reason, than that the final order would arrest the burden
of the scheme to continue to financially carry non- performing members to the
detriment of the scheme as a whole.
[42] There has otherwise been compliance with the statutory requirements.
[43] In the result, I make the following order:
(a) The provisional sequestration order granted on 25 November 2024 is
confirmed.
(b) The estate of the first and second respondents is placed under final
sequestration.
The costs of the application shall be costs in the winding up.
SG GOUWS
ACTING JUDGE OF THE HIGH COURT, PRETORIA
APPEARANCES:
FOR PLAINTIFF: Z. SCHOEMAN INSTRUCTED BY
KLEYNHANS & SWANEPOEL INC.
zjaan@webmail.co.za
admin4@ksinc.co.za
FOR DEFENDANT: In person
musehae@sapo.co.za
musehaneks@gmail.com