REPUBLIC OF SOUTH AFRICA



IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, JOHANNESBURG

CASE NUMBER: 2024/109954



In the EX PARTE matter of:

JACO NEL FAMILIE TRUST APPLICANT

(TRUST NUMBER: IT2379/04)


Heard: 27 October 2025
Delivered: 19 November 2025
Headnote: Insolvency – Voluntary surrender – Trust – Requirements – Advantage to
creditors – Solvent trust with no liabilities – Application brought by sole remaining trustee
to terminate trust due to administrative difficulties – Whether voluntary surrender
appropriate.


(1) REPORTABLE: YES / NO
(2) OF INTEREST TO OTHER JUDGES: YES / NO
(3) REVISED: YES / NO

19 November 2025 _________________________
DATE SIGNATURE

JUDGMENT

WINDELL J:
[1] This is an application brought by the sole remaining trustee of the Jaco Nel Familie
Trust for the voluntary surrender of the trust’s estate in terms of section 4 of the Insolvency
Act 24 of 1936. The application was previously enrolled but removed due to defects in
publication. It has now been re-enrolled following a fresh notice to creditors.
[2] The factual background can be summarised as follows. The trust originally had
three trustees. One trustee has passed away and another has indicated that he no longer
wishes to continue acting. The deponent is therefore the only remaining trustee. He states
that he finds himself in a predicament because he cannot administer the trust alone and
is unable to take decisions or perform the necessary functions without the participation of
the other trustees. It is for this reason that he now seeks the surrender of the trust’s estate.
[3] The founding affidavit makes it clear that the trust is dormant and that it has no
liabilities. The applicant expressly states that the trust has no debts and no creditors. No
creditor has come forward, and no outstanding obligation or liability is identif ied in the
papers. The trust is solvent and holds sufficient funds to cover the costs associated with
the application. The applicant further records that he paid R20 000 to the attorneys to
cover administrative expenses and that the trust has adequate funds to finalise its affairs.
He states that he wishes to sequestrate the trust so that he “does not have consequences

later on”, and that he does not want to face difficulties in future as the sole remaining
trustee.
[4] It is therefore common cause on the papers that the trust is not insolvent. The
object of the application is not to address financial distress but to bring the trust to an end
because the remaining trustee does not wish to continue administering it on his own. The
applicant appears to proceed from the incorrect premise that sequestration is required
where a trust has only one trustee or encounters administrative difficulties. That
understanding is mistaken.
[5] Voluntary surrender is a statutory remedy intended to facilitate the orderly
administration and distribution of an insolvent estate for the benefit of creditors. Sections
3 to 7 of the Insolvency Act set out the jurisdictional requirements. These include that the
estate must be insolvent and that surrender will be to the advantage of creditors. In terms
of section 6(1), the court must be satisfied, at minimum, that creditors will derive some
benefit from the sequestration. The requirement of advantage to cr editors is central and
cannot be waived.
[6] In Ex parte Hayes,1 the Court held that even in voluntary surrender proceedings,
the court must be satisfied that sequestration will yield a real and tangible benefit to
creditors, and that surrender cannot be granted merely because a debtor finds it
convenient. As remarked by Van Den Heever J, if it is not complied with the requirements
of the Insolve ncy Act would only amount ‘wasem’ ( vapor). In Ex parte Ogunlaja and

1 1970 (4) SA 94 (N.K.A) at 96H–97C.

Others,2 the Court reiterated that voluntary surrender cannot be used as a mechanism to
escape administrative difficulties or to bring an entity to an end in circumstances where
there is no insolvency and no advantage to creditors.
[7] The applicant relies on Ex parte Deemter3 and Absa Bank Ltd v Ackerman.4 Those
cases, however, do not assist him. In both matters the estates were indebted, and the
courts were satisfied that despite the possibility that the assets exceeded liabilities, the
statutory requirement of advantage to creditors was met. The reasoning in those cases
does not extend to a situation such as the present, where the estate is wholly solvent and
where no creditor exists who could benefit from sequestration.
[8] The purpose of voluntary surrender is confined to the protection and advantage of
creditors. It is not designed to dissolve a trust or to relieve a trustee of administrative
burdens. The he sequestration procedure under the Ac t is not available to persons or
entities seeking an expedient method of bringing their legal affairs to a close. Where a
trust faces administrative or governance challenges, the proper remedies lie within the
framework of the Trust Property Control Act 57 of 1988. The Master may appoint
replacement trustees, or a trustee may approach the High Court for directions, removal,
or discharge. None of these avenues require or justify the sequestration of a solvent trust.
[9] In this matter, the statutory requirements for voluntary surrender have not been
satisfied. The trust is solvent, there are no creditors, and no advantage to creditors has
been shown. The application seeks to employ the machinery of the Insolvency Act for a

2 2011 (2) JOL 27029 paras 14–16.
3 1962 (2) SA 228 (E.C.D)
4 Case no. 61678/2013.

purpose for which it was not intended. A court’s discretion to grant voluntary surrender
arises only once the jurisdictional requirements in the Act have been met. Honesty and
full disclosure by the applicant, while relevant, cannot substitute for the stat utory
prerequisites.
[10] For these reasons, the applicant has not established a basis for the voluntary
surrender of the trust’s estate as contemplated in section 6(1) of the Insolvency Act. The
application falls to be dismissed.
[11] In the circumstances, the following order is made:
1. The application is dismissed.
_______________________________
L WINDELL
Judge of the High Court
Gauteng Division, Johannesburg

Delivered: This judgement was prepared and authored by the Judge whose name is
reflected and is handed down electronically by circulation to the Parties/their legal
representatives by email and by uploading it to the electronic file of this matter on
CaseLines. The date for hand-down is deemed to be 19 November 2025.

Appearances
For the applicant: Mr H. Bucksteg
Instructed by: G.D. Ficq Attorneys
Date of Hearing: 27 October 2025
(Heads of argument delivered on 7 November 2025)
Date of Judgment: 19 November 2025