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IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, JOHANNESBURG
CASE NO: 2022-048135
(1) REPORTABLE NO
(2) OF INTREST TO OTHER JUDGES NO
(3) REVISED YES
In the matter between
DCV ALTERNATIVE POWER SOLUTIONS
CC T/A DCV LINTEL SUPPLY
Applicant
and
IVAN ALAN EDWARD PRETORIUS
(ID number 7[…])
Respondent
JUDGMENT
ANDRÉ GAUTSCHI AJ
[1] This is the return day of a provisional sequestration order. The applicant seeks
confirmation of the rule and to plac e the estate of the respondent into final
sequestration. The respondent seeks a discharge of the rule and dismissal of
the application.
[2] Two odd events occurred shortly prior to the hearing before me. The first was
that the respondent delivered a supplementary answering affidavit two court
days before the hearing, without any explanation as to why it was delivered that
late or seeking any indulgence. This was not the first time that the respondent
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had done something at the last minute. He delivered a notice of intention to
oppose late on 24 April 2024, causing the matter enrolled for 7 May 2024 to be
removed from the roll, with the respondent a greeing to pay the wasted costs on
a punitive scale. His answering affidavit was delivered on 27 August 2024, the
day before the set down date of 28 August 2024. The last minute delivery of
documents smacks of a stratagem to delay any impending hearing. The second
was that another creditor, using the same attorneys as the applicant, delivered
an intervening application on 25 October 2025, the Saturday prior to the
hearing before me on Monday 27 October 2025.
[3] At the outset of the hearing, applicant’s counsel, Mr J M Hoffman, indicated that
he wished the application to proceed. For that purpose he was prepared to
have the late supplementary answering affidavit admitted and to waive the
applicant’s right to reply thereto. Respondent’s counsel , Mr C E Thompson,
indicated that if the intervening application remained, the respondent wished to
have an opportunity to answer thereto. That caused me to enquire of the
intervening creditor’s counsel, Mr L Hollander, what he intended to do about the
intervening application. He indicated at first that it was conditional and could
simply wait in the w ings to see which way the wind blew at the hearing before
me. Once I indicated that that was not acceptable, after a short stand down Mr
Hollander informed me that the intervening application would be withdrawn, to
allow argument in the application to proceed.
[4] The provisional sequestration order was granted on 2 September 2025 by
Wasserman AJ. He had before him the founding papers, an answering affidavit
and a replying affidavit, as well as a supplementary affidavit handed up to him
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from the Bar at the hearing. Mr Hoffman read excerpts from the transcript of the
previous hearing to me, from which it was clear that counsel then appearing for
the respondent, Mr Stander 1, had consented to the supplementary affidavit
being admitted. That caused Mr Thompson to advise me that neither he nor his
attorney (the respondent’s present attorneys, not being the attorneys of record
at the time of the previous hearing) was aware of the fact that the
supplementary affidavit had been handed to Wasserman AJ and formed part of
the papers before the court (as opposed to simply having been uploaded onto
CaseLines). Attached to that affidavit there were two letters, virtually identical,
one with prejudice and the other without prejudice, written by the respondent’s
then attorney, offering to compromise the debt. The applicant intended to rely
on this as a third offer to compromise, being an additional act of insolvency in
terms of section 8( e) of the Insolvency Act, No 24 of 1936 (“the Insolvency
Act”)
2. This affidavit had not been dealt with by the respondent in his
supplementary answering affidavit, and Mr Thompson indicated that he wished
to take instructions from the respondent inter alia about whether this letter had
been written on the respondent’s instructions and whether it had been
explained to him that such a letter could constitute an act of insolvency. He had
not been able to get hold of the respondent on the day of the hearing, to take
instructions, and sought a postponement in order to do so. In reserving
judgment, I reserved judgment on this aspect too.
1 The respondent had a different counsel and attorney at that hearing.
2 Section 8(e) reads:
“A debtor commits an act of insolvency –
…
(e) if he makes or offers to make any arrangement with any of his creditors for releasing
him wholly or partially from his debts;”
4
[5] For reasons which will become clear, I decline to afford the respondent an
opportunity of a further postponement, and I shall decide the matter on the
papers before me.
[6] The salient facts may be stated as follows.
[6.1] On or about 14 November 2019, the applicant obtained a court order
against the respondent for the payment of two amounts, namely
R 976 141.78 plus interest at 10.25% and R 1 034 337.37 plus interest
at 14.5%. The fact of the judgment debt is not in dispute. The judgment
debt was joint and several with Alleyroads Construction (Pty) Ltd and
Alleyroads Supply (Pty) Ltd in respect of the fi rst amount, and joint and
several with Alleyroads Construction (Pty) Ltd in regard to the second
amount.
[6.2] On 15 February 2021, the respondent through his attorney made his
first offer of compromise in writing. The relevant part reads (after
dealing with the financial position of Alleyroads Construction (Pty) Ltd
and Alleyroads Supply (Pty) Ltd):
“Mr Pretorius, cited herein in his capacity as surety, owns no assets which are
capable of being liquidated for the purpose of settling this debt and the
judgment creditor will likely be required to go through a financial enquiry
process to determine his ability to repay part or all of the debt. You are no
doubt aware that this is a slow, tedious and often, fruitless exercise.”
The letter then continues to make an offer of settlement to pay
R 1 000 000, or make some land parcels available, or to cede some
shares. As contemplated in section 8( e) of the Insolvency Act, this is
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an offer to make an arrangement with a creditor to release him partially
from his debt. This letter was first referred to in and attached to the
replying affidavit.
[6.3] The application for the sequestration of the respondent’s estate was
launched in 2022.
[6.4] On 26 August 2024, just before delivery of the answering affidavit, the
respondent made his second offer of compromise in writing. The
relevant parts of the letter read:
“As discussed, our client has instructed us to make the following “ WITHOUT
PREJUDICE” settlement proposal and as such, our client herewith tenders
payment in the amount of R 1 000 000.00 …, in full and final settlement of
our client’s (in his personal capacity) liability towards your client.
…
Further be advised that our client will be drawing these funds from its other
entities and as such, our client will only be in a position to make such
payment within 21 days from date hereof.”
This letter is again an offer to make an arrangement to be partially
released from his debt. It is also an acknowledgement of the
respondent’s inability to pay the reduced amount from his own funds. It
was also first referred to in and attached to the replying affidavit.
[6.5] After many fits and starts the application was eventually set down for
hearing on 1 September 202 5, and came before Wasserman AJ on 2
September 2025. On that day he granted the provisional sequestration
order, returnable on 27 October 2025. Wasserman AJ clearly thought
that the answering affidavit revealed no defence, and gran ted the
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provisional order.
[6.6] As already indicated, the supplementary affidavit was handed up to
Wasserman AJ at the hearing before him. It contained two annexures,
which were the with and without prejudice letters which the applicant
relies on as the third offer of compromise: The without prejudice letter
reads:
“We confirm our instructions to make the following settlement proposal on
behalf of our client:
[After setting out details and value of one of the respondent’s companies, that
owns a property ] Our client proposes the following three options in terms of
the property in settlement of his debt:
1. Your client can have can have (sic) 33% shares in the office;
2. Your client can purchase the office at R 5 mil and repay our client the
balance after settlement of his debt;
3. Our client will sell the office and pay your client the indebted amount from
the proceeds of the sale. Our client consents to your client appointing
their own conveyancer to attend to the transfer of the property.”
The with prejudice offer is in virtually identical terms.
[7] The case made out in the founding affidavit was that the applicant had made
several unsuccessful attempts to execute on the court order against the
companies and the respondent, and had held two unsuccessful auctions of the
respondent’s shares in Alleyroads Energy (Pty) Ltd, the holding company of the
group. It then chronicled attempts to have the respondent’s immovable property
declared specially executable, which the respondent then sold to another of his
companies, Alleyroads Holdings (Pty) Ltd. The applicant branded this as an act
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of insolvency in terms of section 8(c) of the Insolvency Act 3. Under the heading
of advantage to creditors, the applicant inter alia made the allegation that it
would be just and equitable for the respondent’s estate to be sequestrated
forthwith as he was unable to pay his debts. The founding affidavit also dealt
with the required formalities.
[8] The judgment debt is not in dispute, as I have already indicated. Advantage to
creditors, although notionally in dispute, may quickly be dispensed with. The
respondent’s case is that he is well able to pay the debt and, even if untrue,
establishes reason to believe that a sequestration of his estate will be to the
advantage of creditors. The formalities are also not really in dispute.
[9] The respondent’s main attack is on the act of insolvency. In his heads of
argument, Mr Hoffman relied on section 8(b) ( nulla bona return), section 8(c)
(disposition of property with the effect of prejudicing creditors) and section 8(e)
(an arrangement to be released from indebtedness ) of the Insolvency Act. The
answering affidavit and supplementary answering affidavit raise mainly
technical points, the main one being that the respondent had come to meet a
case under section 8(c) of the Insolvency Act, that any other alleged acts of
insolvency were not relied on in the founding affidavit, but in the replying
affidavit (and supplementary affidavit), and could therefore not be taken into
account against the respondent.
3 Section (c) reads:
“8. A debtor commits an act of insolvency –
…
(c) if he makes or attempts to make any disposition of any of his property which has
or would have the effect of prejudicing his creditors or preferring one creditor
above another:”
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[10] It is accepted that the respondent was not able to deal in the answering affidavit
with any allegations involving section 8( e) of the Insolvency Act, since the first
two letters relied on appeared for the first time in the replying affidavit, and the
third in the supplementary affidavit. However, the respondent’s response in his
supplementary affidavit is illuminating. As I have already indicated, he raised
mainly technical points. With regard to section 8(e), he dealt with the letter of 21
February 2021, correctly pointing out that it was a letter which pre-dated the
launching of the sequestration application. However, he ignored, completely ,
the letter of 26 August 2024, and although I accept that counsel and attorney
for the respondent were not aware that the supplementary affidavit had served
before the court, the respondent knew about this affidavit, and pointedly
avoided dealing with its contents by the following statement in his
supplementary affidavit:
“Nor can the purported supplementary affidavit dated 21 October 2025 be utilised in
order to remedy this inherently defective case.”
It is therefore clear to me that the respondent pointedly avoided dealing with the
problematic letters, and that he had the opportunity, had he wanted to use it, to
deal with the letters comprising the third offer of compromise. It is clear to me
that, had the respondent pertinently been advised that the applicant’s
supplementary affidavit was indeed before the court, he would still have
avoided dealing with the third offer of compromise. For that reason, it seems to
me that the request for postponement is not justified, and I decline to give effect
to that request.
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[11] Mr Hoffman relied on the case of Berrange 4, which is to the effect that a
sequestrating creditor is entitled to rely on an act of insolvency which occurred
after the date of the founding papers. This is undoubtedly a salutary rule, and
especially in the present case, where the respondent used the opportunity to
deliver a supplementary answering affidavit after the provisional order had been
granted, in order to resist a final sequestration order, and therefore had the
opportunity to deal with anything new in the replying or supplementary
affidavits.
[12] After the hearing, Mr Thompson sought leave to make further written
submissions, to which there was no objection, and Mr Hoffman responded. The
main point made by Mr Thompson was that the Berrange case did not go as far
as allowing a later act of insolvency to rescue an initially defective application.
He submitted that the Berrange case dealt with the situation where a further act
of insolvency had been committed, not a later act of insolvency where none
could be proved before. That is not what may, in my view, be extracted from the
Berrange case. In that case, the applicant relied on two acts of insolvency, one
(section 8(a) of the Insolvency Act) in the founding affidavit and the other
(section 8(d) of the Insolvency Act) in the replying affidavit. The SCA relied
upon the later act of insolvency, and in respect of the earlier ( section 8(a))
found that it was not necessary to make a finding with regard to that because of
the conclusion reached on the section 8(d) act of insolvency.
[13] Mr Hoffman, correctly in my view, submits, with reference to the Hammerle
4 Hassan and Another v Berrange NO 2012 (6) SA 329 (SCA) at para 41
10
Group and Chopdat cases5 that an insolvency application is a matter which
involves public interest and public policy, which is why it is accepted law that an
offer of compromise, even if made without prejudice, can establish an act of
insolvency in terms of section 8(e) of the Insolvency Act6.
[14] There is a further accepted principle, which also deviates from usual procedure,
and resonates with the concept of an insolvency application bei ng in the public
interest and involving public policy, nam ely that if the applicant relies in his
application on an act of insolvency but is unable to establish that it was
committed, but it is clear that the debtor is in fact insolvent, the court may grant
a final sequestration order on the latter ground, even if not relied on in the
application7.
[15] The second offer of compromise establishes an act of insolvency in terms of
section 8(e) of the Insolvency Act. That is sufficient to allow the applicant to
succeed. It renders it unnecessary for me to deal wit h other aspects raised in
the application, and also unnecessary for me to concern myself with the third
offer of compromise, which s imply reinforces my refusal to accede to the
respondent’s request for a postponement.
[16] The applicant has in my view succeeded in establishing that a final
sequestration order ought to be granted, and that the rule should be confirmed.
5 Absa Bank Ltd v Hammerle Group 2015 (5) 215 (SCA); Absa Bank Ltd v Chopdat 2000 (2) SA
1088 (W)
6 Absa Bank Ltd v Hammerle Group supra at paras 11- 13; Absa Bank Ltd v Chopdat supra at
1092H-1094F
7 Steytler & Co v Kasker & Allie 1935 CPD 102; Jackson v Smith 1928 TPD 773; Corner Shop
(Pty) Ltd v Moodl ey 1950 (4) SA 55 (T); Saber Motors (Pty) Ltd v Morophane 1961 (1) SA 759
(W)
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[17] I therefore make the following order:
1 The estate of the respondent is placed under final sequestration.
2 The costs of the application shall be costs in the sequestration.
ANDRÉ GAUTSCHI
Acting Judge of the High Court
10 November 2025
Date of hearing: 27 October 2025
Date of judgment: 10 November 2025
For the applicant: Adv JM Hoffman
(instructed by HBGSchindlers Attorneys)
For the respondent: Adv CE Thompson
(instructed by NLHS Attorneys)
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