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SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document
in compliance with the law and SAFLII Policy
IN THE HIGH COURT OF SOUTH AFRICA,
GAUTENG LOCAL DIVISION, JOHANNESBURG
Case no: 2023-125823
[1] REPORTABLE: NO
[2] OF INTEREST TO OTHER JUDGES: NO
[3] REVISED: NO
SL Shangisa AJ 08/12/2025
In the matter between
INVESTEC BANK LIMITED Applicant
(Registration Number: 1969/004763/36)
and
MPHARI BOETMAN PAGE WAGNER Respondent
(Identity Number: 8[…])
JUDGMENT
Shangisa AJ
Introduction
1. The present matter concerns an application for the final sequestration of the
respondent. On 21 May 2024 Bhengu AJ granted an order placing the
respondent’s estate under provisional sequestration. Following the granting of
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the provisional sequestration order, Richard Keay Pollock and two others
were appointed as the joint provisional trustees.
2. The respondent opposes the final sequestration and has filed an answering
affidavit and a supplementary affidavit in which he set out his liabilities and
assets. In turn, the applicant filed a replying affidavit which refuted some of
the claims made by the respondent in his supplementary affidavit. There was
some debate between the parties concerning the admissibility of the
respondent’s supplementary affidavit. However, suffice to mention that
nothing turns on the dispute concerning the admissibility of the respondent’s
supplementary affidavit, in my view, I am prepared to admit all affidavits and
consider their contents.
3. At this stage, the factual background to the matter is merited. On 4 February
2022 and at Sandton the respondent applied to Investec for an Investec
Private Bank Account (“PBA”) and credit facility. The application was
successful and the respondent was granted a credit facility with the limit of
R50, 000.00. The terms and conditions as well as the quotation constituted
the “cardholder’s agreement’. The terms of the cardholder’s agreement are
not in dispute.
4. On 28 February 2022 the applicant and respondent concluded the written loan
agreement ( the “loan agreement”). In terms of the loan agreement, the
applicant issued a loan to the respondent in the amount of R3,105,750. 00.
The terms of the loan agreement are not in dispute.
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5. On 12 February 2023 the applicant and respondent concluded the written
instalment sale agreement ( the “instalment sale agreement”) in terms of
which the applicant financed the respondent’s purchase of a 2018 Jaguar XF
2.0D Sport in the amount of R499,950.00. The terms of the instalment sale
agreement are not in dispute.
6. On 13 July 2022 and as security for the respondent’s indebtedness to the
applicant, the respondent registered a mortgage bond over an immovable
property. The respondent declared himself indebted to the applicant in the
amount of R3,2million together with the additional sum of R620,000.00.
Applicant’s Case
7. It is common cause between the parties that the respondent breached the
cardholder’s agreement by failing to make payment of the monthly minimum
instalments and by exceeding the credit facility which resulted in the PBA
being called up and the credit facility being reduced to the nominal R1.00.
8. As at 31 October 2023 the respondent was in excess of his credit limit in the
amount of R57, 421.00. It is also not in dispute that the respondent breached
the terms of the loan agreement by failing to make payment of the monthly
instalments due. On 1 November 2023 the respondent was in arrears in the
amount of R253,939.29
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9. The respondent also breached the terms of the instalment sale agreement by
failing to make payment of the monthly instalments. In that regard, on 1
November 2023 the respondent was in arrears in the amount of R90, 435.37.
10. By 20 November 2023:
10.1 the loan and instalment sale agreements had been in arrears for 8
months;
10.2 the arrears in respect of the loan agreement had accrued to
R253,939.29;
10.3 the arrears in respect of the cardholder’s agreement had accumulated
to R90,435.37; and
10.4 the outstanding balance in respect of the cardholder’s agreement was
R57,421.00.
11. On 20 November 2023 the applicant’s attorney addressed a termination notice
to the respondent in terms of section 123 of the National Credit Act . At the
time the application was launched, the respondent was indebted to the
applicant in the following amounts:
11.1 R57,421.00 together with interest at the rate of 11.75% per annum in
terms of the cardholder’s agreement;
11.2 R3,357,510.72 together with interest at the rate of 11% per annum in
terms of the loan agreement;
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11.3 R532,368.39 together with interest at the rate of 11.4% in terms of the
instalment sale agreement for the purchase of the jaguar XF.
12. The respondent has made minor payments towards the debts owed to the
applicant. In that regard, the respondent has paid the total amount of
R75,512.56. Despite the latter payments, the respondent remains indebted to
the applicant in the following amounts:
12.1 R63,906.48 together with the interest at the rate of prime 11.5% per
annum in respect to the cardholder’s agreement;
12.2 R3,647,797.92 together with interest at the rate of 11.5% per annum in
respect to the loan agreement; and
12.3 R580,202.72 together with interest at the rate of 11.5% per annum in
respect to the instalment sale agreement.
The Respondent’s Defence
13. For its part, the respondent does not dispute that he has committed an act of
insolvency because he wrote to the applicant and informed it that he could not
meet his monthly repayment obligations to the applicant. At the time of his
admission to being insolvent, the respondent had accounts with the applicant
and other third parties.
14. The respondent also challenged the applicant’s authority to institute the
present legal proceedings. He contended that the applicant’s board of
directors had not authorised the issuing of the application.
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The Law
15. In my view, there is no merit in the respondent’s contention. It is common
cause that the respondent failed to challenge the applicant’s authority by
issuing the notice in terms of rule 7 of the Uniform Rules of Court calling upon
the applicant’s attorneys to produce their power of attorney. In Ganes and
Another v Telecom Namibia Ltd 2004 (3) SA 615 (SCA), the SCA made it
plain that a deponent to an affidavit in motion proceedings need not be
authorised by the party concerned to depose to the affidavit. On the contrary,
it is the institution of the proceedings by the applicant’s law firm of attorneys
that be authorised. This is fatal to the respondent’s defence.
16. The fact remains that the respondent readily admits to have committed an act
of insolvency as contemplated in section 8 (e) and section 8 (g) of the
Insolvency Act, 24 of 1936. In my view, the applicant has an undisputed
liquidated claim. Consequently, other than the aforementioned unmeritorious
defences, there are no genuine and bona fide disputes of fact that have the
effect of stopping the applicant from obtaining its claim.
17. In Goldblatt’s Wholesale (Pty) Ltd v Damalis 1953 (3) SA 730 (O) at 732
the court held that a letter such as the one that the respondent wrote and sent
to the applicant amounts to an admission that he cannot pay his debts in the
ordinary course and that he is insolvent. The legal effect of the letter that the
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respondent admits to have written to the applicant is that he committed an act
of insolvency in terms of section 8 (g) of the Act.
Conclusion
18. The applicant has established that it is a creditor of the respondent in an
amount far more than the required R100.00 for the sequestration of the
respondent.
19. The preceding being the case, the provisional sequestration order granted by
Bhengu AJ is consequently confirmed.
20. In the result the following order is granted:
1. The respondent’s estate if finally sequestrated;
2. The costs of the sequestration application are to be costs in the
sequestration.
__________________________
S.L SHANGISA
ACTING JUDGE OF THE HIGH COURT
GAUTENG LOCAL DIVISION OF THE HIGH COURT, JOHANNESBURG
This judgment was handed down electronically by circulation to the parties’ and/or
parties’ representatives by email and by being uploaded to CaseLines. The date and
time for hand-down is deemed to be 10h00 on …………………………………….2025.
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DATE OF HEARING: ………………………2025
DATE OF JUDGMENT: ………………………2025
APPEARANCES:
COUNSEL FOR APPLICANT: Adv. C. Gibson
ATTORNEY FOR APPLICANT: WERKMANS ATTORNEYS
COUNSEL FOR RESPONDENT: Mr D Lebethe
Attorney with a right of appearance