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REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, PRETORIA
CASE NO: 2023-035979
1. REPORTABLE: NO
2. OF INTEREST TO OTHER JUDGES: NO
3. REVISED: YES
DATE: 11 September 2025
SIGNATURE OF JUDGE:
In the matter between:
PLATINUM PARK II HOME OWNERS ASSOCIATION NPC Applicant
(REGISTRATION NUMBER: 2006/000576/08)
and
SANDRA SHABA First Respondent
JOHANNES SHABA Second Respondent
JUDGMENT
Woodrow, AJ:
[1] The applicant1 seeks a final order for the sequestration of the estate of the
respondents.
[2] A provisional order placing the estate of the respondents under provisional
sequestration was granted by Nyathi J on 15 October 2024. Thereafter the
rule was extended, and the matter was argued in respect of final relief before
me.
[3] The case of the Platinum Park HOA in its founding papers is briefly as
follows:
a. The application is founded upon the insolvency Act, Act 24 of 1936
(the “Insolvency Act”).
b. The respondents are the owners of an immovable property, namely
“ERF 5 […], PLATINUM PARK II, HOME OWNERS ASSOCIATION
NPC, 6 […] I[…] CRESCENT, 4[...] T[...] STREET, CLARINA, EXT
27, PRETORIA NORTH, 0182” (“Erf 5[...]”)
c. In terms of the company documents2 of the Platinum Park HOA, the
respondents, as owners of Erf 5[...], are members of the HOA, and
1 I shall refer to the applicant as either the “Platinum Park HOA” or the “applicant”.
2 The applicant’s deponent refers to the document as the “articles of association ” of the
Platinum Park HOA. The document attached by the applicant, annexure “A” (titled “akte van
jointly and severally liable for any liability to the HOA, including the
payment of levies as contemplated in terms of clause 8.
d. The respondents failed to pay their monthly levies . On 6 February
2020, t he Platinum Park HOA took default judgment in the
Magistrates Court, Pretoria North , (under case number 2093/2019),
against the respondents in the sum of R83,672.71, plus interest at
10% per annum from 16 September 2019. A copy of the default
judgment order is attached to the founding affidavit as annexure “E2”
(the “default judgment order”).
e. The Platinum Park HOA caused a warrant of execution to be issued
which was served by sheriff on 12 January 2023 and a return of
service in this regard was furnished. A copy of the return of service is
attached to the founding affidavit marked “ F” (the “ return of
service”).
f. The applicant attaches a statement to the founding affidavit marked
“G” (which purports to be addressed to the second respondent and
reflects an amount due of R 166,357.55), and the applicant’s
deponent alleges that “… the Respondent is in arrears with his
monthly levies. … the outstanding amount increases monthly.”
g. Under the heading “ REQUIREMENTS FOR SEQUESTRATION
APPLICATION”:
i. The applicant relies squarely upon the default judgment
order in support of an allegation that the Platinum Park HOA
“… has indeed a liquidated claim against the Respondent.”
oprigting”), is in fact the memorandum of incorporation under the previous, 1973
Companies Act.
ii. The applicant relies on an act of insolvency, specifically in
terms of section 8(b) of the Insolvency Act. The applicant
states that “… this application is based upon the commission
of an act of insolvency and more particular Section 8(b) of
the Insolvency Act, being a Sheriff is unable to find sufficient
disposable property to satisfy the judgement.”. The deponent
goes on to allege that “… the Sheriff have first of all
endeavour to serve upon the unit, where the personal
service was not effected and the sheriff could not demanded
payment from the Respondent …” and that “ I therefore
respectfully submit that the Respondent have committed a
deed of insolvency in accordance with Section 8 (b).”
[4] An applicant must make out its case in its founding affidavit. Affidavits in
motion proceedings fulfil the dual purpose of (a) placing before the court the
essential evidence relevant to the granting (or not) of the relief claimed and
(b) defining the issues between the parties. An applicant is not permitted to
make out a new case in a replying affidavit or to supplement averments that
should have been included in the founding affidavit.
[5] A perusal of the founding affidavit makes clear that the case brought by the
applicant is founded squarely upon an act of insolvency, in particular section
8(b) of the Insolvency Act, based on the default judgment order obtained by
the applicant against the respondents on 6 February 2020, and the return of
service of the warrant of execution served by sheriff on 12 January 2023 .
The applicant says so explicitly in the founding affidavit.
[6] The applicant does not bring the application based on factual insolvency. In
this regard, the applicant’s deponent states as follows in the founding
affidavit:
“9.6. With regards to the second ground of insolvency, being factual
insolvency, the Applicant is not aware of any personal knowledge of the
Respondent and therefore the Applicant is not in a position to make
submission in this regard, save for the inference that the Respondent ’s
failure to maintain its monthly levies, can be regarded that the
Respondent is factual insolvent, that its liabilities exceeds its assets.”
[7] Section 8(b) of the Insolvency Act provides as follows:
8. Acts of insolvency
A debtor commits an act of insolvency—
…
(b) if a Court has given judgment against him and he fails, upon the
demand of the officer whose duty it is to execute that judgment, to satisfy it
or to indicate to that officer disposable property sufficient to satisfy it, or if it
appears from the return made by that officer that he has not found sufficient
disposable property to satisfy the judgment;
…
[8] Section 8(b) creates two separate acts of insolvency. As held in Nedbank v
Norton 1987 (3) SA 619 (N) at 621G-I:
The subsection creates two acts of insolvency, the first of which is
committed by the debtor, if upon the demand of the officer whose duty it
is to execute the judgment the debtor fails to satisfy the judgment or to
indicate to the officer disposable property sufficient to satisfy the
judgment, while the second is committed by the debtor if the execution
officer fails to find sufficient disposable property to satisfy the judgment
and if he has certified that fact in his return.
Although the subsection creates two acts of insolvency they are not
altogether independent of each other in the sense that the execution
officer has a choice whether to make the demand or to conduct an
enquiry into whether sufficient disposable property to satisfy the
judgment is to be found.
If it is possible for the execution officer to make the demand he should
do so and he is not entitled to omit to do so and simply to make a return
to the effect that he has not found sufficient disposable property to
satisfy the judgment. …
[9] The provision “… refers to two acts of insolvency. The first is committed
when the debtor fails to satisfy the judgment or to indicate sufficient
disposable property to satisfy it; and the second when the sheriff fails to find
sufficient property to satisfy the judgment. ” (Absa Bank Ltd v Collier 2015
(4) SA 364 (WCC) par [9])
[10] “Disposable property ” for the purposes of s 8(b), includes immovable
property. (Nedbank v Norton 1987 (3) SA 619 (N) at 622; Absa Bank Ltd v
Collier 2015 (4) SA 364 (WCC) par [12])
[11] The return that is relied upon must satisfy the requirements of section 8(b) of
the Insolvency Act. (Saber Motors (Pty) Ltd v Morophane 1961 (1) SA 759
(W) at 762H)
[12] The applicant fails to make out a case in terms of section 8(b) of the
Insolvency Act for at least the reasons set out below.
[13] The default judgment order upon which the applicant relies was rescinded
and set aside on 10 October 2023 already. ( CaseLines 28-11) There is no
warrant of execution that can be relied upon and no deed of insolvency. A
valid judgment is essential to section 8(b) of the Insolvency Act. Absent such
judgment, the applicant makes out no case at all. This, in my view, ought to
be the end of the matter with reference to the act of insolvency relied upon
by the applicant. There are, however, further reasons why th e application
cannot succeed.
[14] Execution was levied at the wrong address and on the wrong assets .
Execution was levied at Erf 5[...] and not Erf 5[...]. The return of service
reads as follows: (my emphasis)
On this 12th day of JANUARY 2023 at 09 :36 I served the WARRANT
OF EXECUTION AGAINST PROPERTY in this matter upon
JOHANNES SHABA at the chosen domicilium citandi et executandi at
ERF 5[...] PLATINUM PARK II HOME OWNERS ASSOCIATION, 6[...]
I[...] CRESCENT, 4[...] T[...] STREET, CLARINA, EXT 27, PRETORIA
NORTH by affixing a copy of the WARRANT OF EXECUTION
AGAINST PROPERTY to the principal door. (Rule 9 (3) (d) ) .
AFTER DILIGENT SEARCH AND ENQUIRY NO OTHER MANNER OF
SERVICE WAS POSSIBLE AT GIVEN ADDRESS AS THE PREMISES
IS KEPT LOCKED.
It is hereby certified that as no person could be found at the above
address after a diligent search, the goods found at the abovementioned
address as described in the inventory contained in the enclosed Notice
of Attachment, were judicially attached.
IMPORTANT NOTICE : Kindly furnish me with further instructions as to
whether the goods under attachment must be removed to a place of
safety. A sale date and sale requirements will only be supplied after
removal.
Note: The original return together with the original abovementioned
process is despatched to the mandator.
[15] The return does not satisfy the requirements of section 8(b) of the Insolvency
Act. It is patently insufficient. As held in Kader v Halisman 1958 (4) SA 31
(N) p32:
In my view generally speaking a messenger's return to a warrant which is
unsatisfied and in respect of which no attachment has been possible
(commonly called a nulla bona return) should state, inter alia,
(a) that he explained the nature and exigency of the warrant, and the
person to whom he explained it;
(b) that he demanded payment;
(c) that the defendant failed to satisfy the judgment;
(d) that the defendant failed, upon being asked to do so, to indicate
disposable property sufficient to satisfy it. (The expression
'disposable property' is preferable to the word 'goods', for the former
include immovable property. Per BROOME, J. (as he then was), in
Horace Sudar & Co. (Pty.) Ltd v Cassja & Co. and Others, 1950 (1)
SA 203 (N) at p. 206);
(e) that the messenger has not found sufficient disposable property to
satisfy the judgment, despite diligent search and enquiry.
[16] The return relied upon in casu is patently insufficient. Further, it is common
cause that the respondents do in fact own immovable property , and the
return does not refer to this at all. A return executed at an unknown address
(which is not the address of the respondents) does not serve to support the
applicant’s case. No case is made out at all.
[17] In my view, the applicant did not bring the application based on ‘factual
insolvency’. No proper case for relief based on such cause is made out in
the founding papers. (cf. Corner Shop (Pty) Ltd v Moodley 1950 (4) SA 55
(T) p 59 -60) However, in any event, the applicant has not shown that the
respondents are factually insolvent. The applicant has not shown that the
respondents’ liabilities exceed their assets. The facts on record in fact
demonstrate factual solvency and no case is made out for the relief sought.
The application therefore fails on this ground as well.
[18] In addition to the aforesaid, the rule stands to be discharged as the applicant
has failed to show that there is reason to believe that it would be to the
has failed to show that there is reason to believe that it would be to the
advantage of creditors of the respondents if the estate of the respondents is
sequestrated. ( Waterkloof Boulevard Homeowners Association
(Association Incorporated under Section 21) v Yusuf and Another
(028945/2022) [2023] ZAGPPHC 737 (28 August 2023) Furthermore, the
applicant has failed to show compliance with section 9(3)(b) of the
Insolvency Act in respect of the certificate of the Master . (Intercontinental
Exports (Pty) Ltd v Fowles 2000 (4) SA 833 (W) ) The document upon
which the applicant relies is unsigned, undated , and does not carry the
stamp of the office of the Master . In addition, the claim of the applicant is
disputed by the respondents on various grounds – indeed, and further, there
is a pending action in this regard.
[19] The provisional sequestration order ought to be discharged.
[20] Counsel for the respondents submitted that the applicant ought to pay costs
on an attorney and client scale , alternatively on scale C. Whilst in my view it
could be argued that persisting with the sequestration application after the
rescission of the default order was granted may constitute vexatious conduct
(as contemplated in In re: Alluvial Creek Ltd 1929 CPD 532 at 535 ), I am
not satisfied that on a totality of the facts a punitive cost order ought to be
granted against the applicant. Considering the complexity of a matter, the
value of the claim and the importance of the relief sought , my view is that
counsel’s fees ought to be taxed on Scale B.
ORDER
[21] Accordingly, I make the following order:
1. The provisional sequestration order is discharged.
2. The applicant is ordered to pay the respondents ’ costs, with
counsel’s fees to be taxed on Scale B.
WOODROW AJ
ACTING JUDGE OF THE HIGH COURT
This Judgment was handed down electronically by circulation to the parties and or
parties’ representatives by e-mail and by being uploaded to CaseLines. The date and
time for the hand down is deemed to be 10h00 on the 12TH of September 2025.
Appearances
Counsel for the Applicant: Z Schoeman
Attorney for the Applicant: Kleynhans & Swanepoel Inc
Counsel for the Respondents: M Snyman SC
Attorney for the Respondents: Nkosi SP Inc
Date of Hearing: 12 June 2025
Date of Judgment: 11 September 2025