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in compliance with the law and SAFLII Policy
REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION PRETORIA
CASE NO: 102163/2023
(1) REPORTABLE: YES/NO
(2) OF INTEREST TO THE JUDGES: YES/NO
(3) REVISED.
DATE: 20/08/2025
SIGNATURE:
In the matter between:
BARTEL WILHELM STEIJN t/a STEIJN PROPERTIES Applicant
and
MATABAKHOLO CONSTANCE KGOMO First Respondent
(IDENTITY NUMBER: 6[…])
LESHATA PHILEMON KGOMO Second Respondent
(IDENTITY NUMBER: 5[…])
This Judgment was handed down electronically and by circulation to the parties'
legal representatives by way of e mail and shall be uploaded on caselines. The date
for hand down is deemed to be on 20/08/2025.
JUDGMENT
MODISA AJ:
[1] In this matter the Applicant is applying for an order for the sequestration of the
Respondents. The First and Second Respondents are opposing this application, and
have filed an Opposing Affidavit.
[2] The application arises from a Judgment, obtained by the Applicant, against
the Respondents herein, and this Judgment, specifically the costs order, has been
taxed, but remains unpaid by the Respondents. The amount of the taxed bill of costs
amounts to R54 230.26, plus interest and further costs incurred herein.
[3] The sequestration application of the Applicant is therefore brought in terms of
Section 9(1) of the Insolvency Act, Act 24 of 1936 (hereinafter referred to as the
"Insolvency Act"), as read with Sections 1 0(b) and 12(1)(b) of the Insolvency Ac t,
alternatively, in terms of the Insolvency Act, Act 24 of 1936, specifically in terms of
Sections 8(b).
[4] The Applicant has filed its Replying Affidavit.
[5] The basis of the Applicant's claim, is that the Respondents are indebted to the
Applicant, in terms of a taxed bill of costs, originating from a judgment obtained
against the Respondents, by the Applicant, which amount remains due by the
Respondents, to the Applicant, and which costs order amount remains unpaid by the
Respondents.
[6] The App licant had the bill o f costs taxed, and it was agreed to the total
payment of the amount of R54 230.26, plus interest and further costs.
[7] The Respondents have failed to make any payment to the Applicant, and the
total amount of the taxed bill of costs, amounts to R54 230.26.
[8] As a result of the Respondents' failure to make payment to the Applicant, the
Applicant, demanded payment from the Respondents, in the taxed bill of costs
amount, by way of a Warrant of Execution, executed by the Sheriff.
[9] The Applicant demanded payment from the Respondents, by way of the
Sheriff and a warrant of attachment, to which, the First Respondent responded to the
Sheriff, that he has no movable assets to satisfy the claim of the Applicant. The
return of execution of the warrant was a nulla bona return.
[10] In terms of this Warrant of Execution and Returns of Service, the Sheriff
provided a nulla bona return.
[11] Therefore, this amounts to an Act of Insolvency, in terms of the Insolvency Act,
Act 24 of 1936, specifically in terms of Sections 8(b).
[12] Further to this, the sequestration application of the Applicant is also brought in
terms of Section 9(1) of the Insolvency Act, Act 24 of 1936 (hereinafter referred to as
the "Insolvency Act"), read with Sections 10(b) and 12(1)(b) of the Insolvency Act, as
the Respondents are clearly insolvent.
[13] The Applicant therefore proceeded with the Application for Sequestration, as it
is clear that the Respondents are in no position to make payment to its creditors,
upon demand.
[14] The Applicant has tendered the necessary security with the Master of the
High Court.
[15] Roper J at 558 in Meskin v Friedman1 considered the meaning of the phrase
"reason to believe". He stated:
1 1948 (2) SA 555 (W)
"The phrase "reason to believe", used as it is in both these sections, indicates
that it is not necessary, either at the first or at the final hearing, for the creditor
to induce in the mind of the court a positive view that sequestration will be to
the financial adv antage of creditors. At the final hearing, though the court
must be "satisfied", it is not satisfied that sequestration will be to the
advantage of creditors, but only that there is reason to believe that it will be
so."
[16] The first issue raised by the Respondents is that the Respondents seem to
suggest that they have a defence in the written purchase agreement, that was
entered into between Mrs Troskie and the Respondents, and where the Applicant
acted as estate agent.
[17] The Respondents fail to state, or make any allegations of what their assets
are, that could be used, or have been used, to satisfy the debt. The Respondents are
completely silent on these aspects.
[18] The Respondents fail to make a full disclosure to this Court. The Respondents
provide no detail as to what assets or liabilities they have. The Respondents fails to
show, or even allege, that their assets exceed their liabilities. The Respondents
makes no allegations in this regard.
[19] The Respondents further allege that they ha ve sufficient property to satisfy
the Judgment Debt with, but fail to provide any detail of what these alleged assets
are, where such assets can be found or even what is the value of such assets.
[20] The Respondents provide no detail as to the assets tha t the Sheriff could
have found.
[21] In any event, the First Respondent has already informed the Sheriff at the
time when the warrant of execution was served that there are no assets available to
satisfy the judgment debt.
[22] The Respondents further provide no detail of any other creditors of the
Respondents are provided, and therefore, there is no allegations as to the other
liabilities of the Respondents, to determine what their financial exposure is.
[23] Further, the return of service of the Sheriff is indeed correct, and complies
with the requirements set out in Rule 45(3) of the Uniform Rules of Court.
[24] The judgment debt which is the subject matter of the sequestration application
emanates from a bill of costs which was agreed upon between the parties.
[25] It is trite law that the Court has to be satisfied that the requirements for
sequestration have been complied with, namely;
a. That the Applicant has established a liquidated claim for not less than
R100.00 (One Hundred Rand) against the debtor,
b. That the debtor has committed an act of insolvency or is insolvent and
c. That there is reason to believe that it will be to the advantage creditors
of the debtor if the estate is sequestrated.
[26] It is import ant to highlight that the Respondents do not join issue with the
contents of annexure E to the Applicant's founding affidavit which forms the subject
matter of the judgment debt.
[27] Annexure E to the Applicant's founding affidavit is a letter from Nkom e
Incorporated who are the attorneys acting on behalf of the Applicant addressed to
the Respondents' attorneys of record Mathys Krog attorney dated 21 May 2023
which reads as follows:
"BARTEL WILHELM STEIJN t/a STEIJN PROPERTIES// MATABAKHOLO
CONSTANCE KG OMO AND ANOTHER MAGISTRATES' COURT,
PRETORIA
CASE NUMBER: 34119/20
YOUR REF: MR KROGIYVUS.2575
1. We refer to the above matter and as you are aware, we act for and on
behalf of Matabakholo Constance Kgomo and Leshata Philemon Kgomo ("our
clients")-
2. We further refer to your counter -offer to our marked bill without
prejudice in an amount of R 54 230.26 (Fifty -Four Thousand, Two Hundred
and Thirty Rands , Twenty-Six Cents).
3. We confirm that we agree and accept your counter offer in the
aforesaid amoun t and same should be made an order of the above
Honourable Court by its Taxing Master at the hearing on the 4 th day of July
2023 at 08h30.
4. We trust the above finds you well "
[28] Pursuant to this correspondence, a warrant of execution was served
personally on the First Respondent which warrant recorded a nu/la bona return in
that no assets could be identified to the Sheriff to satisfy the judgment debt. Such
warrant of execution recorded the following:
"
Notice in terms of rule 8 Act 32/44 (MAGISTRATE'S COURTS)
In the matter between:
STEIJM B T/A/ STEIJN PROPERTIES EXECUTION CREDITOR
and
KGOMO MC (15T) EXECUTION DEBTOR
Address:
FORUM EAST BUILDING, 1[…] A[…] STREET, HATFIELD
WARRANT OF EXECUTION
On 08-sep-2023 at 08:16 this process was dealt with as follows by
DEPUTY SHERIFF N RAMARU:
RETURN OF SERVICE: PESONAL SERVICE: NULLA BONA
On 08-Sep-2023 at 08:16 at FORUM EAST BUILDING, 1 […] A[…] STREET,
HATFIELD, the judgment debt plus interest and costs was demanded from
KGOMO MC (1 ST) who informed me that She has no money or disposable
assets or property inter alia wherewith to sat isfy the warrant or any portion
thereof. No movable property/ disposable assets were either pointed out to
me or could be found after a diligent search and enquiry at the given address.
My return is therefore one of NULLA BONA. It is hereby further certifi ed that
the execution debtor was requested in terms of section 66(8) to declare
whether SHE has any immovable property which is executable on which the
following was answered: NO ALL ASSETS BELONG TO THE DEPARTMENT
OF CORRECTIONAL SERVICES "
[29] It is improbable that they would have effected payment on the judgment debt
during 2022 because the agreement in terms of annexure E to the founding affidavit
was entered into during 2023..
[30] Therefore, any arguments pertaining to any transactions or contract s entered
into prior to 2023 is irrelevant for purposes of this sequestration application.
[31] I must hasten to add that at the time when the Respondents' Counsel made
legal submissions I granted condonation for the late filing of the answering affidavit.
[32] In my view, the judgment of the Court referred by the Counsel for the
Respondent in the matter of Ratila v Do Santos 2 find no application in this matter in
that the matter was confined with service of the sequestration application itself and
not service of the warrant of execution. The judgment of Nedbank limited v
Katompa3 finds application in that it was not necessary for service of the warrant of
execution to be effected on both Respondents and it was sufficient for the Sheriff to
effect service on either one of the Respondents.
2 1995( 4) SA 117 ( W
effect service on either one of the Respondents.
2 1995( 4) SA 117 ( W
3 (29675/20) [2021] ZAGPPHC 299 ( 12 May 2021)
[33] Baqwa J in Nedbank Limited v Katompa remarked as follows:
'[18] On a proper reading of the Rafi/al judgment, so the applicant submits,
nothing prohibits this court from granting a provisional order for sequestrat ion
where the application was served on both parties and where the nature and
content of the application came to both spouses' attention before the granting
of a provisional order."
[34] The Court in the Katompo matter dismissed the point in limine to the effect
that the nulla bona return was not served on the Second Respondent.4
[35] The argument that the nulla bona return is defective in that it was not served
on the Second Respondent is rejected. Similarly, the argument that the nulla bona
return was made in bad faith is also rejected.
[36] I have already made an order in terms of the draft Court order marked " X"
which reads as follows:
"
1. That the estate of the First and Second respondents, MATABAKHOLO
CONSTANCE KGOMO with identity number: 6 […] and LESHATA
PHILEMON KGOMO with identity number: 5 […] be placed u nder
provisional sequestration, returnable on the 10th day of November 2025;
2. That the Respondents, and all other interested parties, are called upon
to show cause on or before the return date hereof, why this order should
not be made final;
3. That th is provisional order served upon the Respondents' attorneys,
Nkome Incorporated by way of email;
4. That this provisional order be served upon the Master of the High Court
by hand;
5. That this provisional order be served upon the South African Revenue
Services by way of e-mail;
4 See: Nedbank Limited v Katompa supra at para [26]
6. That this provisional order be served upon the employees of the
Respondents if any, by affixing a copy of this order against the principal
door, or gate of the premises of the residence of the Respondents, by
way of the Sheriff;
7. That the costs of this application be costs in the sequestration."
MODISA AJ
ACTING JUDGE OF THE HIGH COURT
Appearances
For the Applicant : Adv Z SCHOEMAN
Instructed by : MATHYS KROG ATTORNEYS
For the Respondents : Adv MTHETHWA
Instructed by : NKOME INCORPORATED
DATE OF HEARING: : 29 JULY 2025
DATE OF JUDGMENT: : 12 AUGUST 2025