2. The applicant contends that the respondent has committed an act of insolvency
as contemplated in section 8(b) of the Act, following the return of a nulla bona
by the sheriff after attempts to execute a writ of execution issued pursuant to a
judgment obtained in the Magistrate Court against the respondent for unpaid
levies.
3. The respondent filed her opposition without legal assistance and she continued
to argue her case in person.
BACKGROUND FACTS
4. On 1 November 2022 the applicant (a Homeowners’ Association) obtained a
default judgment against the respondent in the Magistrates’ Court for payment
of arrears of R25,490.44 in respect of the levies of the together with interest
and costs on an attorney and client scale.
5. The respondent is a member of the Willow Park Manor, Willo w Park Manor
Extension 86 Homeowners Association (NPC) , with the Registration No.
2016/145980108).
6. The applicant alleges that the respondent has failed to comply with her levy
obligations in terms of the Memorandum of Incorporation (MOI) , resulting in
arrears in the levies that had allegedly escalated to R73,894.66.
7. Two attempts were made to execute the writ. On the first occasion, the sheriff
attached goods valued at approximately R3,000.
8. On 19 April 2023, the Sheriff served a letter upon the applicants indicating that
a Third Party has laid a claim to the attached assets, whereafter the attached
movable assets were released.
9. On 11 July 2023 the Sheriff again attempted to execute the writ and issued a
nulla bona return, recording that the respondent had no disposable property
sufficient to satisfy the judgment debt. It is primarily on this return that the
applicant bases the present application for sequestration.
10. On 19 June 2024, the application for sequestration was personally served by
the Sheriff upon the respondent.
SUMMARY OF EVIDENCE
11. The applicant’s case in this application for the insolvency of the respondent is
made out as follows:
11.1 The contention that the respondent is actually insolvent, in that her
liabilities exceed the value of her assets.
11.2 The contention that the second requirement for provisional
sequestration has been met after the Sheriff attempted to attach the
movable property of the respondent on two separate occasions and the
second return of service was a nulla bona return, which states that the
respondent does not have any money or disposable assets, or property
which could be attached to satisfy the warrant or any portion thereof.
11.3 The contention that the respondent performed an act of insolvency
when she allegedly informed the sheriff that she cannot satisfy the debt.
According to the applicant, the respondent admitted that she cannot
pay her debts when she averred that she was experiencing financial
burden associated with the medical expenses of her sickly child.
11.4 The applicant relied on Meskin & Co v Friedman 1 argued that the
sequestration of the respondent would be to the advantage of creditors
because the respondent has a magnitude of accounts which are already
in arrears in the total amount of R409 489.66. The alleged account in
arrears as listed in the applicant’s founding affidavit 1. FNB Credit Card
1. R11 452.00
2. DMC 5 R810.00
3. FNB RMB – Private Clients Home Loans R29 472.00
4. Nimble Credit Fund R293 861.00
1 See Meskin & Co v Friedman [1948] 2 ALL SA 416 (W) at page 419
5. Applicant’s arrears as of October 2023 R73 894.66.
12. The applicant’s counsel proposed that the court consider whether there is a
reason to believe that the issue of the benefit of the creditors the sequestration
of the respondent would be to the advantage of creditors that as was held in
Friedman. The court said in this case, that “It is not necessary, either at the first
or at the final hearing for the creditor to induce in the mind of the Court a positive
view that sequestration will be to the financial advantage of creditors, that it is
only necessary that the Court shall be of the opinion that prima facie there is
such ‘reason to believe that the sequestration of the respondent would be to
the advantage of creditors.
Respondents submissions
13. In the opposing affidavit filed by the respondent , she does not address the
averments raised by the applicant for the sequestration of her assets, instead,
the respondent deals with the defence in the application which was launched in
the Magistrate's Court.
14. Only i n court , during oral submissions did the respondent argue her case
against the application for the sequestration of her assets. The respondent
disputed the factual and legal basis on which the application for sequestration
is founded. She denied the allegations that she had informed the Sheriff that
she had no assets or that she could not pay her debts including the levies.
According to the respondent, she was communicating with the respondent’s
attorney after the default judgment was granted to arrange for payment. She
argued that a day after the attachment , she emailed the applicant’s attorneys
from hospital telling them that she intended to make payment when she is
discharged. This was confirmed by the applicant in the founding affidavit.
15. During the hearing , the respondent presented copies of proof of payments of
R4000 from 25 July 2025 to 25 November 2025 towards the default judgment
R4000 from 25 July 2025 to 25 November 2025 towards the default judgment
totalling to the amount of R20,000. She disputed that she committed an act of
insolvency, or that she was actually insolvent as alleged by the applicant. She
asserted that she has made payments towards her levy account . She argued
that the applicant’s claim that she made “no single payment since August 2020”
is false and misleading.
16. The respondent stated that the reason she stopped paying in November 2025
was that she received another notice of bar with a different case number issued
by the applicant. She went to investigate the matter at the Magistrate's Court
and she enquired further details about the case. She informed by the applicant’s
attorneys(Loock Du Pisane INC Attorneys) that she intends to defend the
matter. Alarming was the applicant’s counsel's reaction when the respondent
produced proof of payments and a copy of the proof of communication she had
sent to the applicant’s attorneys of record. The matter stood down for Counsel
to verify the information as well as the amount paid by the respondent. What
came out of after the adjournment was even shocking as the counsel told the
court that the applicant was not aware at the hearing of this matter of another
pending case between the same parties under Magistrates’ Court case number
18355/2024, nor did they know about the respondent’s recent payments of
R4,000 per month from July to November 2025.
17. The respondent refuted the allegations by the applicant that she prefers the
other creditors over the others because she is paying her house loan only. The
respondent asserted that she has no other creditors except the mortgage bond.
ANALYSIS OF FACTS AND THE APPLICABLE LAW
18. The core issue for determination is whether the applicant has established that
the respondent committed an act of insolvency or that she is actually insolvent,
and whether sequestration would be to the advantage of creditors as
contemplated under section 12(1) of the Insolvency Act2. This goes to the heart
of any sequestration or liquidation application.
2 See section 12(1) of the Insolvency Act 24 of 1936 (“the Act”).
19. An applicant for a provisional sequestration order must show, on a prima facie
basis, the following three jurisdictional facts:
1. That the applicant has a liquidated claim against the debtor of at least R100 as
provided in section 9(1) of the insolvency Act;
2. That the debtor has committed an act of insolvency or is actually insolvent as
required in section 8 of the insolvency Act ; and
3. That there is reason to believe that sequestration will be to the advantage of
creditors as required by section 10(c)).
Reliance on a liquidated claim
20. It might be so that the applicant has a liquidated claim against the debtor of at
least R100 because the applicant has already obtained a default judgment
against the respondent. The challenge with the applicant’s reliance on a
liquidated claim does not assist the applicant’s case because of the incorrect
and unreliable averments made by the applicant relating to the alleged amount
claimed. The issue here is that the amount alleged to be owing at the time of
the sequestration application appears to be inconsistent with the respondent’s
payment history which was not disputed and the applicant’s own statements of
account.
21. I am of the view that it is not enough for the applicant to aver a liquidated claim
without justification. Surely, a sequestration application must be based on
accurate, verified financial facts. The claim must be supported by evidence. The
fundamental principle that a claim must be supported by evidence is established
through the legal concept of the burden of proof (or onus probandi). The party
that makes an assertion or brings a claim generally bears the responsibility of
proving that claim with sufficient evidence. Failure to provide the required
evidence can result in the claim being dismissed.
22. The matter was stood down twice for the applicants' attorneys to verify the
payments made by the respondent and to obtain the updated statements. That
indulgence did not bear any positive results because the money that the
respondent paid into the attorney's account was not accounted for by the
attorney and the counsel could not explain what happened to that money. This
issue exposes an anomaly in the applicant’s claim that the respondent is
insolvent.
23. The affidavit deposed to by Debora Jacoba Retief Coertse , the portfolio
manager of First Property Trust (Pty) Ltd, contains troubling inconsistencies.
Despite claiming to be fully acquainted with the applicant’s financial records,
she failed to acknowledge the respondent’s recent payments or the existence
of parallel litigation concerning the same levies.
24. The applicant failed to file a supplementary affidavit correcting the arrear
amount despite being aware of subsequent payments. Shocking was the fact
that the applicant and the counsel were not aware of the payments made by
the respondent to Loock Du Pisane Inc and the notice of Bar served on the
respondent. In response to this chaos, the applicant’s c ounsel submitted that
the supplementary affidavit correcting such inconsistency was ‘inconvenient’.
This submission is a bad reflection of a legal representative who has no regard
for the rule of law and has no interest in pursuing justice. I find the conduct of
the applicant and its legal representative before the court unacceptable.
Reliance on the nulla bona return
25. The applicant’s reliance on the sheriff’s nulla bona return of 11 July 2023 to
demonstrate that the respondent is factually insolvent or committed an act of
insolvency is problematic. This return is a crucial piece of evidence that a debtor
has committed an act of insolvency in terms of Section 8(b) of the Insolvency
Act 24 of 1936 . It is clear from the evidence that the sheriff made no effort to
Act 24 of 1936 . It is clear from the evidence that the sheriff made no effort to
conduct a diligent search for assets after the assets worth R30000 were
returned to the third party before issuing a nulla bona return. The applicant's
reliance on the nulla bona return is fatal to the case because t he return was
issued more than six months before the application was filed and no evidence
was placed before th is Court to establish that there has been no material
change in the respondent’s financial position in the interim. On the contrary,
there is evidence presented by the respondent to demonstrate that her financial
position has changed since the default award was granted to the extent that he
managed to pay R20,000 of the R25,490.44.
26. In Saber Motors (Pty) Ltd v Moropane , Natalse Landboukoöperasie Bpk v
Moolman, and Abell v Strauss3 1973 (3) SA 617 (T), the courts held that where
a nulla bona return is older than six months, the applicant must show that there
has been no material alteration in the debtor’s financial position. The applicant
has failed to do so.
Actual Insolvency and Advantage to Creditors
27. The applicant also failed to impress on the contention that the respondent
committed act of insolvency because he failed to pay the amount in terms of
the default judgment. The fact that the applicant avers that the respondent
informed the sheriff and the applicant’s attorneys that she will make
arrangements to pay when she is discharged from the hospital discredits the
applicant's contention that the respondent confirmed that she cannot pay her
debt and therefore performed an act of insolvency.
28. The Court cannot ignore the respondent’s assertion that she has been harassed
and subjected to pressure to sell her property. While such personal
circumstances are not determinative of the insolvency question, they raise
concerns about the good faith of the applicant’s approach and the conduct of
its legal representatives . The fact that she explains her financial challenges
since the default court was awarded, including the torment by the applicant with
litigation that attracted legal costs even though she challenged the plaintiff’s
claims for arrears levied in her answering affidavit cannot be inferred that she
claims for arrears levied in her answering affidavit cannot be inferred that she
3 See Saber Motors (Pty) Ltd v Moropane, Natalse Landboukoöperasie Bpk v Moolman, and Abell v Strauss
was admitting that she cannot pay her debts or that her liabilities exceeds his
assets.
29. The applicant further relies on a Lightstone Automated Valuation Report
showing the value of the respondent’s property to allege that sequestration
would benefit creditors. This evidence does not take the applicant any further
because the respondent has already disputed that she has no other creditors.
28. The applicant’s failure to demonstrate a factual basis for actual insolvency or
advantage to creditors renders the application fatally defective.
27. The Court is deeply concerned about the conduct of the applicant’s attorneys,
Look du Pisane Inc. The filing of an affidavit containing demonstrably false
statements under oath, and the omission of material financial facts, constitutes
conduct verging on vexatious litigation . Such conduct undermines the
administration of justice and will not be tolerated.
29. This is a frivolous litigation that financially affects the all the members of the
Home Owners Association , including the respondent who might not probably
be aware of the shady litigation against the respondent. For this reason, the
respondent should not contribute to any legal costs and fees due to Look du
Pisane Inc. No interest, no administration costs of fees related the amount in
dispute.
28. The fact that the respondent failed to properly articulate her defence however
that does not relieve the applicant’s onus to prove
CONCLUSION
28. The applicant has failed to make out a case for the sequestration of the
respondent under section 8 of the Insolvency Act.
29. The applicant’s case is further undermined by the lack of candour and accuracy
in its founding papers.
(This judgment is issued by the Judge whose name is reflected herein and
is submitted electronically to the parties/their legal representatives by
email.)
DATE OF THE HEARING: 13 August 2025
DATE OF JUDGEMENT: 01 December 2025
APPEARENCES
FOR THE APPLICANT:
Attorneys Look Du Pisane Inc Attorneys
Contacts 087 802 2182
Email annelize@ldplaw.co.za; ldp5@ldplaw.co.za
Counsel Adv MC Van Ryneveld
FOR THE RESPONDENT: In Person
Anna.siwela@gmail.com