2
2] In considering the relief to be granted I have considered, once again, the papers
filed, the contemporaneous notes made during argument of the main application, the
application for leave to appeal and the argument presented on 3 December 2025 and
the judgment handed down on 29 October 2025.
3] Mr Singh argued, once again, the issues raised during the initial hearing
including that the application was issued during the time that National State of Disaster
had been declared in South Africa and there were strict protocols 1 in place for the
hearing of these matters which the Body Corporate had ignored; that the Body
Corporate’s heads of argument had been filed late and no condonation application had
been filed thus the application should not have been adjudicated; that as he had not
had time to file heads of argument 2 his right to a fair trial was disregarded; that the
court had still had regarded to the Body Corporate’s heads of argument despite stating
that they would not be considered in the adjudication process; that as no proper
exposition of his assets and liabilities had been provided by the Body Corporate, there
was nothing before court to justify that the order was correct; that his estate was worth
over R10 million3 and thus there were no grounds to justify the relief sought.
4] Mr Singh also argued that another court would come to a different decision as
the judgment was clearly wrong and took wrong principles into account, ignored the
effect of the National State of Disaster and the protocols issue d pursuant to that and
that it was in the interests of justice to grant leave to appeal. He also argued that his
1 For example, those issued by the Office of the Master of the High Court – these were not attached to any of
his affidavits
2 Because the Body Corporate’s heads were not properly before court
3 A new fact stated in the Application for Leave to Appeal which was not stated in his original Answering
Affidavit
3
right to a fair hearing was not given effect to because of the fact that the Body
Corporate’s heads of argument were allowed without the necessity of a condonation
application, and that he was not given the opportunity to file heads of argument. I do
not intend to repeat those portions of the judgment which deal with these arguments
– I am not of the view that there is merit in these arguments.
5] Whilst there are many more grounds set out in the application for leave to
appeal, many of them simply repeat the above albeit differently packaged.
6] At the hearing it was argued by Mr Meintjies, and I also asked Mr Singh to make
submissions, whether or not a provisional order of sequestration is indeed appealable.
This question stems from the provisions of s150 of the Insolvency Act 24 of 1936 which
states:
“150 Appeal
(1) Any person aggrieved by a final order of sequestration or by an order setting aside
an order of provisional sequestration may, subject to the provisions of section 20 (4)
and (5) of the Supreme Court Act, 1959 (Act 59 of 1959), appeal against such order.
(2) Such appeal shall be noted and prosecuted as if it were an appeal from a judgment
or order in a civil suit given by the court which made such final order or set aside such
provisional order, and all rules applicable to such last-mentioned appeal shall mutatis
mutandis but subject to the provisions of subsection (3), apply to an appeal under this
section.
(3) When an appeal has been noted (whether under this section or under any other
law), against a final order of sequestration, the provisions of this Act shall nevertheless
apply as if no appeal had been noted: Provided that no property belonging to the
4
sequestrated estate shall be realized without the written consent of the insolvent
concerned.
(4) If an appeal against a final order of sequestration is allowed, the court allowing such
appeal may order the respondent to pay the costs of sequestrating and administering
the estate.
(5) There shall be no appeal against any Order made by the court in terms of this Act,
except as provided in this section.”
7] Mr Meinjties argued that no appeal lies against the provisional order as no
provision is made for such appealability in s150, and that in Pitello v Everton Gardens
Porjects CC4 Nugent JA stated:
“[27] An order is not final for the purpose of an appeal merely because it takes effect,
unless it is set aside. It is final when the proceedings of the court for first instance are
complete and that court is not capable of revisiting the order…It is not appeala ble
because such an order is capable of being rescinded by the court that granted it, and
it is thus not final in its effect…”
8] Mr Singh argued that it was in the interests of justice to grant leave to appeal
most especially because the issue as regards the effect of the National Disaster
Directives and Protocols are precedent -setting and will determine how these type of
matters should be dealt with in future. He argued that leave to appeal should be
granted to allow what he termed “wider audience and a more filmed decision”. He
further argued that the concept of the ‘interests of justice’ is in its infancy and that its
application to issues dealing with the National State of Disaster is developing law. He
4 2010 (5) SA 171 (SCA)
5
lastly argued that the decision of Zweni v Minister of Law and Order 5 (Zweni) should
inform the decision on whether an interim order is appealable.
9] In Siyanda Sabelo Trading (Pty) Ltd v Twin Rivers Homeowners Association
NPC, Vivian AJ stated6 the following as regards Zweni:
“The Zweni triad of attributes for an order to be an appealable order, is therefore no
longer cast in stone nor exhaustive. But those attributes have also not become
irrelevant or supplanted by the development in our jurisprudence. This court has
remarked that, “the interests of justice should now be approached with the gravitational
pull on Zweni.” If one of the attribute s is lacking, an order will probably not be
appealable, unless there are circumstances which is the interests of justice, render it
appealable. The emphasis has moved from an enquiry focused on the nature of the
order, to one more as to the nature and effect of the order, having regard to what is in
the interests of justice. What the interests of justice require depends on the facts of a
particular case. This standard applies both to appealability and the grant of leave to
appeal, no matter what pre-Constitution common law impediments may exist.”
10] But s12 of the Insolvency Act makes specific provision for the return date of the
rule nisi and also makes provision for the discharge of the provisional order in s12(2):
“(2) If at such hearing the Court is not so satisfied, it shall dismiss the petition for
the sequestration of the estate of the debtor and set aside the order of provisional
sequestration or require further proof of the matters set forth in the petition and
postpone the hearing day for any reasonable period but not sine die.”
5 1993 (1) SA 523 (A)
6 Quoting from Koen AJA in MV Smart: Minnentals Logistics Zhejiang Co Ltd v Owners and Underwriters
of MV Smart and Another 2025 (1) SA 392 (SCA) at par 32
6
11] What this means is that Mr Singh will be provided another opportunity to state
his case and he is entitled to file such further affidavits as he may wish. It must also
be borne in mind that the approach taken by the court to the evidence before it in the
provisional and the final stages of a sequestration is different: at the provisional stage
the applicant must make out a prima facie case; at the final stage a higher degree of
proof is required – that of a balance of probabilities. 7 For the reasons set out in the
judgment, I am of the view that the Body Corporate satisfied the test for the grant of
the provisional order.
12] In my view, the fact that the Insolvency Act itself makes provision for the
proverbial further ‘bite at the cherry’ precludes an appeal against a provisional order
of sequestration. Section 150 itself talks only to a final order of sequestration and in
s150(4) specifically provides that “[t]here shall be no appeal against any Order made by
the court in terms of this Act, except as provided in this section.”
13] In Liberty Group Ltd v Moosa 8 the SCA found that an order dismissing a final
order of sequestration is indeed appealable. But no such finding has been made in
respect of a provisional order and given the provisions of s150(4) and s12(2) of the
Insolvency Act, that is not surprising.
14] I also find that, apart from the above, there are no interests of justice to be
served by allowing a delay in the proceedings: the National State of Disaster has come
and gone and the application was launched as far back as August 2021. Mr Singh has
7 ABSA Bank Ltd v Erf 1252 Marine Drive (Pty) Ltd and Another (23255/2010) [2012] ZAWCHC 43 (15
May 2012
8 2023 (5) SA 126 (SCA)
8
by email and by uploading it to the electronic file of this matter on CaseLines. The
date for hand-down is deemed to be 8 December 2025.
Appearances
For the applicant – leave to appeal : Mr Singh (in person)
For the respondent – leave to appeal : Mr Meintjies
Instructed by : Beyers Inc Attorneys
Date of hearing : 3 December 2025
Date of judgment : 8 December 2025