IN THE HIGH COURT OF SOUTH Al=RICA
GAUTENG DIVISION, PRETORIA
(1) REPOR TABLE: yes@
(2) OF INTEREST TO OTHER JUDGES: YES 1G
(3) REVISED /A .ll
DATE SIGNATURE
CASE NO. : 29047/2015
In the matter between:-
CHRISTOPHER PERE VAN ZYL N.O.
OSCAR JABULANI SITHOLE N .O.
SELBY MUSAWENKOSI NTSIBANDE
MATTHEWS TUMANI MULAUDZI
VIOLET MABONTSI MULAUDZI
V
THE MASTER OF THE HIGH COURT , PRETORIA
First Applicant
Second Applicant
Third Applicant
First Respondent
Second Respondent
Third Re spondent
29047/2015 2 JUOGMEN T
Heard on: 12 November 2025
Delivered: 28 Novembe r 2025 - This judgment was handed down electronically by
circulation to the parties' representatives by email, by being uploaded to
the CaseLines system of the GD and by release to SA FLII. The date and
time for hand-down is deemed to be 14:00 on 28 November 2025
Summary :
1. A court of law has a judicial discretion in terms of Section 127 A(1) of the
Insolvency Act 24 of 1936 (the Act) to delay or deny the automatic rehabilitation
of the respondents (Engelbrecht v N aidoo) cited herein.
2. Unrehabilitated insolvents are required to show that the sequestration of their
estate was to the advantage of creditors.
3. The respondents were instrumental in causing the trustees not to finalize the
administration of their estate.
4. The relief sought in Part A is interim in nature. The respondents are afforded
an opportunity to state their case in Part B of the application.
5. The non-compliance with the Uniform Rules of Court is condoned in terms of
U niform Ru le 6(12). This application is adjudicated upon as an urgent
application.
ORD E R
It is ordered:-
29047/2015 3 JU DGME NT
1. The non compliance with the Unform Rules of the court be condoned in terms of
Rule 6(12). This application is adjudicated upon as an urgent application.
2. Condonation for the late filing of the replying affidavit is granted.
3. The further affidavit of the respondents, in response to the replying affidavit is
permitted.
4. Pending the final determination of the application set out in Part B, the
respondents shall not be deemed to be rehabilitated from 2 December 2025 as
envisaged in Section 127 A(1) of the Insolvency Act.
5. Each party is ordered to pay their own costs resulting in the postponement of the
matter on 4 November 2025.
6. The first and second respondents are ordered to pay the costs of the Part A
application, including the costs of two counsel.
7. Part B is postponed sine die.
JUDGMENT
KOOVERJIE J
NATURE OF THE APPLICATION
[1] This matter was instituted as an urgent application where the court is required to
exercise its discretionary power in terms of Section 127A(1) of the Insolvency Act
29047/2015 4 JUDGMENT
24 of 1936 ("Act") to either delay or deny the automatic rehabilitation of the first
and second respondents, currently unrehabilitated insolvents.
[2] The second and third applicants are the remaining trustees of the insolvent estate
of Matthews Tuwani Mulaudzi (the first respondent) and Violet Mabontsi Mulaudzi
(the second respondent).
[3] The respondents are married in community of property, and their joint estate was
finally sequestrated by order of court on 27 May 2016.
[4] The first meeting of creditors occurred on 15 November 2016 whereupon the
proven creditors voted for the appointment of the applicants as trustees. The
applicants were appointed as trustees on 20 February 2017. The second meeting
of creditors was convened on 9 May 2017.
THE RELIEF SOUGHT
[5] In this application the trustees seek the following relief, namely
5.1 in Part A they seek interim relief on an urgent basis that, pending the
outcome of the main relief in Part B - the first and second respondents are
not to be deemed to be rehabilitated in terms of the provisions of Section
127 A(1) of the Insolvency Act from 2 December 2025.
5.2 in Part B they seek final relief, thus confirming that the first and second
respondents are not to be deemed to be rehabilitated in terms of the
provisions of Section 127 A(1) of the Insolvency Act.
29047/2015 5 JUDGMENT
[6] The applicants submit that Part A is interim in nature pending the outcome of the
main relief sought in Part B. This court is seized with part A relief.
ISSUES FOR DETERMINATION
[7] The issues for determination and those that were persisted with in argument were
the following:
7 .1 Whether the matter is rendered urgent;
7.2 whether condonation for the late filing of the replying affidavit should be
granted;
7.3 whether the further affidavit filed by the respondents should be permitted;
7.4 whether a case has been made to interfere with the Section 127A(1)
deeming provision. The substantive dispute between the parties centers
on Section 127 A(1) of the Act, which stipulates:
"(1) Any insolvent not rehabilitated by the court within a period of 10
years from the date of sequestration of his estate, shall be deemed
to be rehabilitated after the expiry of that period unless the court,
upon application by an interested persons after notice to the
insolvent, orders otherwise prior to the expiration of the said period
of 10 years".
[8] I have noted that although the locus standi of the trustees were challenged on the
papers, this point was not persisted in argument. In any event the applicant's
response is that their authority was confirmed on the basis that the creditors at the
29047/2015 6 JUDGM EN T
second meeting of creditors authorized the trustees to institute, inter alia, these
proceedings.
URGENCY
[9] The core issue for determination is whether the applicant can obtain substantial
redress at a hearing in due course. The undisputed fact is that the respondents
will be automatically rehabilitated in terms of the deeming provision set out in
Section 127 A(1) of the Act on 2 December 2025, by the effluxion of time. The
application at this stage is intended to delay the operation of Section 127 A(1) of
the Act.
[10) This application had already been instituted on 25 July 2025. The respondents
duly filed their answering affidavit on 22 August 2025. They were further informed
that the matter was set down for hearing on 2 September 2025. However the
matter was removed from the roll at the behest of the applicants. The applicants
only filed their replying affidavit on 24 October 2025, (62 days late) according to
the respondents.
[11] The respondents expressed their discontentment as to the manner in which the
matter was dealt with thereafter by the trustees. They alleged that whilst the
trustees took their own time to file their replying affidavit, they then, without
consulting with the respondents, sought an urgent preferential allocation from the
office of the Acting Deputy Judge President. They unilaterally proposed the date,
4 November 2025, for the hearing which was unreasonable. The respondent's
were clearly prejudiced in having to prepare for the hearing on such short notice.
29047/2015 7 nJDGMENT
This constituted self-created urgency and an abuse of the court processes. It was
argued that since the filing of the answering affidavit on 22 August 2025 the
applicants had ample time to respond and accordingly arrange a date by
agreement between the parties.
[12] Notably the matter eventually did not proceed on 4 November 2025. I remind the
parties that I directed that the matter could be heard in the following week on the
basis that the parties agree on a date. I further gave leave to the respondents to
file a further affidavit in response to the replying affidavit. The parties then agreed
that the matter be heard on 12 November 2025.
[13] There can be no doubt that the matter warrants urgent attention in light of the
imminent date, 2 December 2025, which would affect the status of the
respondents. From the said date, they will be deemed to be automatically
rehabilitated unless this court directs otherwise.
[14] Clearly the trustees would not be able to attain substantial redress in the normal
course of court proceedings. In East Rock Trading1 the court expressed that the
delay in instituting proceedings is not on its own a ground for refusing the matter
to be urgent. A court is obliged to consider the circumstances of the case and the
explanation given. The important issue is whether, despite the delay, an applicant
can or cannot be afforded substantial redress at a hearing in due course.
1 East Rock Trading 7 (Pty) Ltd and Another v Eagle Valley Granite (Pty) Ltd and Others 2011 ZAGPJHC 196
at paragraph 6, 7 and 8
29047/2015 8 JUDGMENT
[15] Section 127 A(1) of the Act gives this court the judicial discretion to delay or deny
the deeming provision provided that such application is presented to court before
the expiration of a period of 10 years. On 2 December 2025, the respondent will
be deemed to be rehabilitated by the effluxion of time. There can be no doubt that
this matter warrants urgent attention.
THE LA TE FILING OF THE REPLYING AFFIDAVIT
[16] The applicants sought condonation for the late filing of their replying affidavit.
They proffered the following reasons:
16.1 after they launched this application on 25 July 2025, their co-trustee, Mr
Christopher Peter van Zyl (the first applicant) passed on. This caused an
unforeseen delay in finalizing their replying affidavit. They submitted
although the Master was duly informed of the death of Mr van Zyl, his
response was extensively delayed. The trustees required directions from
the Master on whether another trustee should be appointed;
16.2 it was only on 16 September 2025 that the Master advised that the
remaining trustees would be capable of finalizing the estate of the
insolvents. Hence there was no need to appoint a third trustee. In light of
this response, a further meeting of creditors in terms of Section 62(3) of
the Act became unnecessary2;
2 S62(3) makes provision for the election of a new trustee in the place of the trustee who has vacated his/her
office, has resigned or has died. The Master may convene a meeting for this purpose.
29047/2015 9 JUDGM ENT
3
16.3 thereafter the trustees anticipated their amended certificates of
appointment which were not forthcoming from the Master's office;
16.4 in this period as well, the remaining trustees were advised that it would be
convenient to appoint a new set of attorneys from the jurisdiction of this
court. The trustees alleged that the said attorneys had to be given an
opportunity to acquaint themselves with the facts and the nature of the
extensive litigation that ensued between the parties;
16.5 this was not a deliberate delay caused by willful or negligent conduct on
their part;
16.6 the late objection to the request for condonation has no merit. The
respondents had every opportunity to oppose the condonation since the
filing of the replying affidavit on 21 October 2025;
16. 7 the applicants had further tendered the reasonable costs associated with
the condonation and submitted that such costs order would cure the
prejudice;
16.8 lastly the respondents have not alleged any prejudice suffered due to the
late filing of the replying affidavit. This is an overriding factor that must be
taken into account. 3
Pangboume Properties Ltd v Pulse Moving CC and A nother 2013 (3) SA 140 (GSA) where the court stated at
page 1470 to 148D :
29047/2015 10 JUDGM ENT
[17] The respondents opposed the condonation mainly on the premises that the
trustees failed to account for the entire period of the delay. They further argued
that there was no reason for the trustees to await any communication from the
Master as they could continue with the litigation. Moreover, the purported new set
of attorneys were instructed on the matter since December 2023 and could
therefore not have been a valid reason for the delay.
"[18} The respondents had the replying affidavit in their possession for four months and made no
attempt to object to the late filing thereof until the objection was made in argument before me.
its own affidavit was late and would pursuant to the Waltloo judgment not be before me . The
respondents did not show why ii would be prejudiced should the matter be heard by me. The
objection to the affidavit is stated thus:
'Applicant's replying affidavit was served and filed some 8 months out of time and/alls to be
disregarded. '
It fails to indicate what prejudice, if any, the respondents suffered as a result of the late filing
of the replying affidavit. The words of Brand JA in Anglo Operations Ltd v Sandhurst Estates
(Pty) Ltd 2007 (2) SA 363 (SCA} at para {32} are apposite:
'I am not entirely sure what is meant by the description of the application as 'totally
irregular'. If it is intended to convey that the application amou nted to a deviation from the
U niform Rules of Court, the answer is, in my view, that, as is often been said, the Rules are
there for the Cou rt, and not the Court for the Rules. The court a quo obviously had a
discretion to allow the affidavit. In exercising this discretion. the overriding factor that ought
to have been considered was the question of preiudice. The perceived preiudice that the
respondent would suffer if the application were to be upheld. is not explained. Apart from
being deprived of the opportunity lo raise technical objections, I can see no prejudice that the
respondent would have suffered at all. At the time of the substantive application the
respondent had already responded - in its rejoining affidavit - to the matter sought to be
included in the founding affidavit. The procedure wh ich the appellant proposed would have
cured the technical defects of wh ich respondent complained. The respondent could not both
complain that certain matter was objectionable and at the same time resist steps to remove the
basis for its complaint. The appellant's only alternative would have been to withdraw its
application, pay the wasted costs and bring it again supplemented by the new matrer. This
would merely result in a pointless waste of time and costs.'
On the facts of the present matter I deem it unnecessary for either of the parties to have
brought a substantive application for condonation."
29047/2015 11 JU DG MEN T
[18] They emphasized that the full explanation that covers the entire period of the
delay has to be explained. They submitted that without a reasonable and
acceptable explanation for the delay the prospects of success are immaterial.
[19] I am however mindful that condonation is not merely granted upon the request by
a party seeking the indulgence. Such party is required to show good cause. This
court is required to exercise its judicial discretion taking into account certain
factors, inter a/ia, that a reasonable and full explanation is given for the delay,
wh ich should cover the entire period of the delay4, that there was no reckless or
intentional disregard of the rules of court and the delay was bona fide. The main
reason for the delay was due to the trustees awaiting directions from the Master.
The Master belatedly advised them on the future administration of the estate. I
find this explanation is reasonable and does not show m a/a fide on their part.
[20] The prospects of success is a critical factor in a condonation application and it is
weighed alongside other factors such as the extent of the delay and the reasons
thereof. Strong prospects of success can compensate for an inadequate
explanation for the delay provided that the delay is not excessively long. In this
matter the delay was not excessive and that the explanation for such delay was
further reasonable. Moreover, the trustees have strong prospects of success. The
facts must be considered in context and not individually and whether it is in the
interests of justice to allow the indulgence5.
4 Yan Wyk v Unitas Hospital 2008 (2) SA 472 CC at 477 E-G
5 G rootboom v National Prosecuting Authority and Another 20 14 (2) SA 68 CC at par 50
Bosch v Seynhaeve at para 50 No 159/2023 [2024] ZALCCT 25 (27 June 2024)
29047/2015 l2 JUDGM ENT
(21] I am therefore satisfied that the applicants have shown good cause.
Consequently the condonation is granted.
THE RESPONDENT'S FURTHER AFFIDAVIT
(22] On 4 November 2024, when the matter was initially set down for hearing, the
respondents requested an indulgence to file a further affidavit to respond to "new
matter and untruths" which they alleged was not raised in the founding papers in
particular, the allegation that R105 million was not accounted for by the
respondents.
(23] I made provision for the filing of their further affidavit on the basis of the new
matter and the untruths. The applicants, however, contended that the further
affidavit was repetitive and did not address new matter. Consequently the
postponement sought was disingenuous.
(24] In exercising my discretion in terms of Rule 6(5)(e), I am inclined to allow further
affidavit premised on fairness to both sides and in particular that there is no
prejudice to either parties. The applicants, in fact responded to the further
affidavit. Moreover it is in the best interests of justice that the court has the
benefit of all the pleadings.
Delay in the administration of the insolvents' estate
29047/2015 13 JUDGM ENT
[25] The applicants requested this court to delay the deeming provision pending the
final determination in terms of Section 127 A(1) of the Act. They contend that
there is merit in this application on the basis that:
25.1 the trustees were prevented from interrogating the respondents concerning
the business dealings and affairs of the insolvent estate;
25.2 they were unable to investigate the respondents' affairs and transactions
due to the lack of information. Consequently, they were unable to properly
report to the creditors;
25.3 they were further unable to establish the full extent of the respondents'
assets and an enquiry was necessary;
25.4 to date none of the creditor's claims have been dealt with and none of
them received any dividends.
[26] It was explained that the sequestration process is intended for the benefit of the
creditors. The respondents' rehabilitation would be to the disadvantage of the
creditors. Consequently, the respondents will escape accountability to the
creditors, the trustees and the Master, thus evading all consequences of the
insolvency.
29047/2015 14 JUDG MEN T
[27] The overarching consideration when rehabilitating an applicant is that it is for the
benefit of the creditors. As set out in Ex Parle Purdon6 the court stated at
paragraph [15] that:
"To avoid any manipulation or abuse of the process, I take a view that an
applicant for rehabilitation is obliged to demonstrate how the sequestration
of his or her estate had been to the advantage of creditors, and if it had
not, the reasons therefor. It should make no difference that the
sequestration resulted from voluntary surrender or compu lsory
sequestration, for, in both instances, the benefit to the body of creditors, is
the overarching and key consideration. Courts have a particular
responsibility to ensure that people who have in the past failed in
managing their financial affairs, and in the process caused financial loss to
others, are not without more, unleashed back into the economic
mainstream."
[28] The conduct of both the respondents as well as the trustees after the
sequestration order was granted, were outlined in the detailed chronology. The
timeline is relevant in that it provides context to the litigious history between the
parties.
[29] The trustees argued that in the last ten (10) years they were unable to administer
the insolvent estate, firstly due to the curator bonis having custody of the
insolvents' assets for a period of 5 years and secondly the continuous and
unmeritorious litigation initiated by the respondents; in particular the Maumela J
and Kwinana J proceedings.
6 Ex Parte Purdon (53894/20 13) [2014] ZA G PPHC 95 (24 January 2014)
29047/2015 15 JUDGMENT
[30] I have taken cognisance of both parties conduct as extrapolated in the
chronology. I find it appropriate to highlight the salient events namely:
30.1 on 22 December 2015 the provisional order was already granted and on
27 May 2016 the final order was granted. The respondents wasted no time
in launching a plethora of applications, mainly to oppose the sequestration
orders, to interdict the trustees for performing their functions and to
challenge their appointments.
30.2 in fact the litigation commenced immediately (one day after the provisional
order was granted). Two applications were instituted for the setting aside
of the provisional sequestration order.
unsuccessful in these applications.
The respondents were
30.3 after the final sequestration order was granted, the respondents instituted
applications to interdict the provisional trustees from securing their assets
and to further set aside the final order of sequestration, followed by an
application to return their assets as well as an appeal against the final
sequestration order. They were again unsuccessful in all of these
applications.
30.4 determined to overturn the final order of sequestration they further
launched a rescission application, a rehabilitation application, as well as a
review application;
29047/2015 16 JUDGMENT
30.5 they then instituted the first interdict application to, inter alia, challenge the
appointment of the trustees and to interdict them from any further
administration of the insolvent estate pending the outcome of the Section
381 enquiry into the fitness of the trustees to hold office;
30.6 the respondents were successful in the first interdict application before
Maumela J. The order had the effect of setting aside the creditors'
meeting, interdicting the trustees from adm inistering the insolvent estate
ordering them to hold over the process of the disposal of the estate and
pending the institution of the Section 381 enquiry. They further directed the
Master to institute a Section 381 enquiry against the trustees in this
insolvent estate. The Maumela J order of 11 May 2018 was only set aside
by the Full Bench, four years later, on 24 June 2022;
30.7 post June 2022 the respondents approached the Supreme Court of Appeal
and the Constitutional Court in order to overturn the Full Bench decision
regarding the first interdict application;
30.8 the respondents further attempted to cause the Master to remove the
trustees and requested that the creditors' claims proved at the first meeting
of creditors be expunged;
30.9 the respondents also filed a complaint to the Special Investigating Unit (the
SIU) against the trustees;
29047/2015 17 JUDGM EN T
[31] Amidst these unsuccessful applications, the National Director of Public
Prosecutions ("the NDPP") obtained an order in terms of Section 26 of the
Prevention of Organised Crimes Act 121 of 1998 ("POCA "), restraining the first
respondent from dealing with any of the assets contained in the insolvents'
estate, pending the outcome of the criminal charges against him regarding an
alleged fraud committed against O ld Mutual in excess of over R48 million. Hence
from 6 June 2017 to 5 September 2022 the insolvent estate vested in the hands
of the curator bonis for a period of over 5 years.
[32] It cannot be disputed that in this period, the trustees were unable to administer
the assets of the estate. Furthermore, the Maumela J order of 18 May 2018
hindered them from complying with their obligations, until the outcome of the
appeal of this order, (24 June 2022). The trustees advised that due to the
respondents' application for leave to appeal against the Full Bench order that
overturned Maumela J's order, they were further unable to administer the
insolvent estate for a further period from October 2022 to September 2023.
[33] Thereafter the second interdict application was instituted, on 22 November 2023,
when Kwinana J granted an order in their favour which again interdicted the
trustees from administrating the respondents' insolvent estate and from holding a
creditors meeting.
Trustees' Conduct
[34] On the facts, I have noted that the trustees had invited the respondents to
meetings. The respondent's clearly refused to participate, and communicated
29047/2015 18 JUDGM EN T
their non-attendance and further advised the trustees that they would not disclose
the information requested.
[35] The respondents indicated in writing that they will not provide the information
requested in terms of the subpoena issued. In the report to the trustees, on 10
April 2017, it was recorded that they failed to provide the information regarding
their assets.
[36] The trustees attempted to convene the creditors' meetings. The first and second
meetings of creditors we re held, namely on 15 November 2016 and 9 May 2017
respectively. At the first meeting of creditors the proven claims against the
insolvent estate were in the region of over R74 million.
[37] Thereafter on 26 May 2017, the Master consented to convene the private enquiry
in terms of Section 152 of the Insolvency Act. The trustees were, however, unable
to convene the meeting due to the respondents once more instituting an urgent
application to interdict the trustees from holding the special meeting.
[38] The trustees made provision for a special meeting to be held on 31 October 2023.
To obstruct this meeting an urgent application was instituted on 25 October 2023.
The trustees nevertheless managed to convene the special meeting of creditors
on 31 October 2023, as the said application was unsuccessful.
[39] Another meeting was arranged for 7 December 2023. Again the respondents
instituted an application to interdict the trustees from convening this meeting as
well.
29047/2015 19 JUDGM E NT
[40] The Kwinana J order was al_so challenged by the trustees and with leave of the
Supreme Court of Appeal a reconsideration application was permitted. Such
application has as yet not been ventilated. As things stand currently the trustees
remain interdicted from administering the estate of the first and second
respondents.
[41] In response, the respondents contended that:
41 .1. they should not be faulted for the delay of the 5 years where the curator
bonis had custody of their assets. They played no role in this delay. They
can further not dispute that, in this time, even the trustees had no access
to their assets;
41.2 their argument that although Maumela J's order interdicted the trustees
from disposing the estate's assets the trustees could still comply with their
responsibilities, is unmeritorious. Although the Maumela J order
interdicted the trustees from administrating the insolvent estate, the curator
bonis had custody and control of the insolvents' assets until September
2022;
41.3 their argument that the trustees had every opportunity to proceed with the
investigation, but they opted not to do so, also devoid of merit. The
trustees clearly did not sit back for 9 years. Apart from the 5 years when
their insolvent estate vested with the curator bonis, the respondents
attempted to comply with their obligations. The facts clearly illustrate that
every attempt of the trustees to carry such obligations was met with
29047/2015 20 JUDGMENT
adverse applications, where either their appointments were opposed, or
where they were interdicted from administering the estate, or convening
meetings;
41.4 the respondents pointed out that after Maumela J's order was set aside by
the full bench, that is from 24 June 2022 until the Kwinana J's order, that is
until 31 October 2023, the trustees could have continued with the
administration of the estate. The reference to the brief window periods in
which the trustees could continue with their tasks, is meritless. On the
facts and the correspondence referred to it was evident that they
attempted to engage with the respondents and the creditors in this time;
41.5 the consequence of Kwinana J's order was also that they were interdicted
from administering the insolvent estate. The President of the Supreme
Court of Appeal had only on 7 July 2025 granted the applicants permission
to file their reconsideration application. This matter has as yet not been
ventilated;
41.6 their contentions-that the delay in the appeal court proceedings of
Maumela 's order is not their fault, is again in my view, unassailable. They
were dominus litis and initiated the interdicts.
[42] It is glaringly evident from the facts that the trustees were obstructed either by the
respondents or by circumstances beyond their control in effectively administering
the estate.
29047/2015 21 JU DGMENT
Discretion of the court
[43] The objective of sequestration proceedings must be appreciated. It allows for the
insolvent's assets to be accounted for and equally distributed to the creditors to
the extent they can be paid. This process is entirely for the benefit of the
creditors. The trustees were unable to compile a written report for the Master and
creditors in terms of Section 81 ( 1) of the Act.
[44] Apart from the 5 years where the curator bonis had control of the insolvent's
assets, the trustees with the cooperation of the insolvents could have finalized the
insolvency proceedings and filed their reports.
[45] A rehabilitation order is further not granted at the mere request of an insolvent.
Although the rehabilitation was anticipated in terms of Section 127 A(1) of the Act,
the enquiry in determining whether a rehabilitation order is justified is the same as
when an application is made to court.
[46] The test is whether the insolvents ought to be rehabilitated and ought to be
allowed to trade in the public as ordinary honest persons. Simply put, whether the
insolvent is a fit and proper person to participate in commerc ial life without any
constraints and disabilities.7
7 R Engelbrecht and Others v Na idoo at par 26 with reference to the authorities cited therein
Ex Parte Harris (Fairhaven Country Estate (Pty) Ltd as intervening party [2016] l ALL SA 764 wee at par
84
29047/2015 22 JUDGM EN T
[47] The granting of a rehabilitation order is a matter which lies entirely in the
discretion of the court and is not a right which the insolvent is entitled to.8
[48] There are various instances where rehabilitation of insolvents would be refused.
Our courts have refused rehabilitation in various justified instances. They include,
inter alia, when insolvents were difficult and refused to cooperate with the trustees
in the administration of the estate, where they are obstructive and make
unfounded allegations against the trustees and where they fail to give a
satisfactory account of the insolvency.9
[49] The effect of rehabilitation is to fully restore the applicant to the marketplace and
to obtain credit. Hence it is necessary for the applicant to disclose enough
information to indicate that the insolvent learnt some lessons. An insolvent is
required to prove as much financial advantage for the creditors during the period
of sequestration. This is clearly not the case here 1°.
[50] On the plain facts, the trustees remain interdicted from administering the insolvent
estate, none of the proven creditors have had their claims dealt with, resulting in
none of them receiving any dividends. The proven claims against the insolvent
estate has been proved to be over R74 million. On the respondents' own version
their debts exceed over R5 million. Disputes of this nature could have been ironed
out if the insolvents furnished the requested information and cooperated with the
trustees. A court is also required to have regard to the various reports which
8 Ex parte H ittersay 1974 (4) SA 326 SWA 328
9 See also M ars Law on Insolvency, 9th edition p 586 to 558
10 Ex Parte Le R oux 1996 (2) SA 4 19 C PD
29047/2015 23 JU DGM EN T
includes the Master's and trustees' reports. Clearly the Section 81 report could
not be finalized.
[51] In the circumstances of this matter I find that the refusal of their rehabilitation is
justified.
Interim relief
[52] At this stage of the proceedings, the relief sought is interim in nature. There
would be no lasting injustice as the respondents will be afforded an opportunity to
state their case on the return day, that is Part B of this application.
[53] Orders of this nature are designed to protect the rights of the complainant pending
the final outcome of the matter. The effect is to maintain the status of the
respondents until then.
[54] The applicants have satisfied the requirements for the interlocutory relief, namely:
54.1 they have established that they have prima facie rights to seek the court's
intervention at this stage of the proceedings;
54.2 there is a well-grounded apprehension of irreparable harm if the interim
relief is not granted. They have demonstrated that the creditors in the
main would be prejudiced;
29047/2015 24 JUDGMENT
54.3 the balance of convenience is in their favour. The respondents will not be
prejudiced by the delay in their rehabilitation. The trustees and the
creditors stand to suffer severe prejudice if the relief is not granted;
54.4 moreover the applicants have no alternative recourse. Section 127 A(1) of
the Act makes provision for the court's intervention before the 10 (ten) year
period expires.
circumstances.
There is no other satisfactory remedy in the
Consequently the interim relief in Part A is granted.
Costs
[55] The issue of costs is to be determined firstly in respect of the 4 November
postponement and secondly, the costs of Part A of this application.
[56] The applicants wanted to proceed on 4 November 2025. The respondents
contended that they had not been consulted on the date allocated at the
applicants' behest.
[57] Consequently, the respondents sought an indulgence in order to respond to the
replying affidavit. The applicants argued that the further affidavit was merely
repetitive and did not raise new matter. I nevertheless allowed both the further
affidavit as well as the applicants' subsequent reply to the further affidavit on the
principle of fairness and in the interests of justice. I therefore deem it appropriate
that each party bear their own costs.
29047/2015 25 JUDGMENT
[58] In respect of the costs of Part A of this application, there is no reason not to follow
the general principle-namely that costs follow the result. The applicants as the
successful parties, are entitled to their costs. Consequently, costs are awa rded in
favour of the applicant's consequent upon the employment of two counsel.
Appearances:
Counsel for the applicants:
Instructed by:
Counsel for the respondents:
Instructed by:
Date heard:
Date of Judgment:
Adv. S Tsagarakis
Adv. Z Schoeman
H. KOOVERJIE
JUDGE OF THE HIGH COURT
GAUTENG DIVISION, PRETORIA
Strydom & Bredenkamp Attorneys
Adv. T Ncongwane SC
Adv. N Matidza
Ledwaba Mazwai Attorneys
12 November 2025
28 November 2025