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IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, PRETORIA
Case numbers: 2025-003969 and 2025-202949
Date of hearing: 19 November 2025
Date delivered: 4 December 2025
(1) REPORTABLE: YES/NO
(2) OF INTEREST TO OTHERS JUDGES: YES/NO
(3) REVISED
DATE 4/12/25
SIGNATURE
Case no: 2025-202949
In the application between:
F AND CATAI TRANSPORT SOLUTIONS
(PTY) LTD (IN LIQUIDATION) First Applicant
KAREN FORTEIN N.O. Second Applicant
CLIFFORD THABANG MAREDI N.O. Third Applicant
RICHARD MASOANGANE N.O. Fourth Applicant
and
LEBOGANG GRACE MPAKATI Respondent
Case no. 2025-003969
In the application between:
F AND R CATAI TRANSPORT SOLUTIONS
(PTY) LTD (IN LIQUIDATION) First Applicant
KAREN FORTEIN N.O. Second Applicant
CLIFFORD THABANG MAREDI N.O. Third Applicant
RICHARD MASOANGANE N.O. Fourth Applicant
and
INDALO BUSINESS CONSULTING CC Respondent
(Reg. no. 2011/037334/23)
This judgment is handed down electronically by the Judge whose
name is reflected herein, and is submitted to the parties or their
legal representative by email. This order is further uploaded to the
electronic file of CaseLines by the Judge or his Registrar. The date
of this order is deemed to be 4 December 2025.
__________________________________________________________
JUDGMENT
SWANEPOEL J:
[1] The second, third and fourth applicants are the joint liquidators of
the first applicant (“Catai”), a company currently in liquidation. They
urgently seek both the winding up of the respondent (“Indalo”) under
case number 003969 -2025 and the sequestration of the respondent
(Ms. Mpakati) under case number 202949 -2025. Both applications were
heard simultaneously by agreement between the parties.
[2] I shall set out the facts relevant to both applications, and I will
then deal with each application separately, as the elements of each
application differ.
[3] Catai was placed under business rescue by order of the High
Court on 7 August 2018. Ms. Mpakati was appointed as business
rescue practitioner. During the period between August 2018 and
January 2019, Ms. Mpakati received business rescue fees in the sum of
R 3 633 736.65 for her work in the Catai business rescue. The fees of a
business recue practitioner are prescribed in the Companies Act, 2008.
Applying the tariffs, it is clear that Ms. Mpakati received R 2 341 311.85
more than she was entitled to. These mo nies were paid to the account
of Indalo, and were monies that were due to Catai.
[4] On 18 February 2020 Catai was wound up, and during March
2023 the applicants launched an application against both Ms. Mpakati
and Indalo for the repayment of the R 2 341 311.85. In the application
Indalo was described as a company registered in terms of the
Companies Act, 2008 (“the Companies Act”) , whilst in fact it is a close
corporation under the Close Corporations Act (“the Close Corporations
Act”), 1984. On 11 December 2024 , despite not having filed opposing
papers, both Indalo and Ms. Mpakati were represented, and
notwithstanding their opposition to the application, the disposition to Ms.
Mpakati and Indalo (as a company) was set aside, and judgment was
granted against them jointly and severally.
[5] On 12 December 2024 a notice of demand in terms of section 69
of the Act was sent to Indalo, demanding payment of the judgment debt
within 21 days. The debt remained unpaid, and on 15 January 2025 the
applicants applied for Indalo’s winding up. That application became
opposed on 6 August 2025.
THE SEQUESTRATION APPLICATION AGAINST MS. MPAKATI
[6] On 12 August 2025 a writ of execution was issued against Ms.
Mpakati, Upon attempting to execute the writ at Indalo’s business
premises on 25 August 2025 , Ms. Mpakati confirmed to the Sheriff
telephonically that she had no disposable assets with which to satisfy
the writ at Indalo’s premises. On 16 October 2025 the Sheriff again
attempted to execute the writ at Ms. Mpakati’s home address. She again
declared that she had no money, moveable or disposable property to
satisfy the writ. Ms. Mpakati did state that she owned a bonded
immovable property. The result was that the Sheriff rendered a nulla
bona return.
[7] Ms. Mpakati says that the order in terms of which judgment was
granted against her is the subject of an application for leave to appeal.
The application for leave to appeal is dated 21 January 2025. The
application was due to be filed within 15 days, and was thus delivered
out of time. On 18 March 2025 Ms. Mpakati delivered a request for
reasons for the judgment. The reasons were provided in early April
2025.
[8] Ms. Mpakati contends that the matter is still under appeal. That is
not so. The time for filing an application for leave to appeal lapsed on 7
January 2005. No condonation has been sought for its late filing. Ms.
Mpakati cannot deliver a request for reasons weeks later, and argue
that the request extended the time for filing the application. If that were
so, then a party can deliver a request for reasons years later and rely
thereon to argue that the application for leave to appeal is not out of
time. In my view the appeal has thus lapsed.
[9] It is also significant that after receiving the reasons in April 2025
Ms. Mpakati did not amend her application for leave to appeal , nor has
she pursued the appeal. The argument that the matter is under appeal
is, in my view, a red herring. Ms. Mpakati’s counsel argued that the fact
that the judgment was rendered jointly and severally with an entity that
that the judgment was rendered jointly and severally with an entity that
doesn’t exist renders the judgment void as far as Ms. Mpakati is
concerned, because she would be unable to recover any monies from
her co-debtor. I reject the argument. The fact is that the Court granted
judgment against Ms. Mpakati, and she can be held liable for the entire
debt. There is thus a judgment ordering Ms. Mpakati to repay the
monies, and when the Sheriff demanded payment she was unable to
satisfy the writ. Consequently, Ms. Mpakati has committed an act of
insolvency by virtue of the provisions of section 8 (b) of the Insolvency
Act, 1936.
[10] Of some significance is Ms. Mpakati ’s explanation for receiving
the monies in the first place. She does not deny that the amount that
she appropriated for fees far exceeds the tariff laid down in the
Companies Act. Ms. Mpakati’s explanation is that she was paid for work
done as agreed with the board of the Industrial Development
Corporation (“IDC”), which then paid the fees to her by agreement as
post-commencement finance. Ms. Mpakati does not provide any
evidence of the so-called agreement, and she does not attach the draw -
down applications.
[11] The agreement between the IDC and Catai does not mention that
Ms. Mpakati was entitled to additional fees . On the contrary, the
agreement says that the loan was intended to purchase raw materials,
labour, and to pay overheads related to the Transnet RRV Project,
recapitalizing its branches and payment of outstanding creditors. There
is thus not a shred of evidence that such an agreement ever existed.
Had there been, one would have expected Ms. Mpakati to provide
evidence thereof. In my view the inescapable conclusion is that Ms.
Mpakati was not entitled to the monies that she paid into Indalo’s
account. I say so in full recognition of the test in Plascon -Evans1. In my
view, Ms. Mpakati’s version can be rejected on the papers as clearly
untenable.
1 Plascon Evans Paints Ltd v Van Riebeeck Paints (Pty) Ltd 1984 (3) SA 623 (A)
[12] Ms. Mpakati says that she is not insolvent, and that she owns two
immovable properties, the values of which exceed the claimed amount.
Further of significance is that Ms. Mpakati told the Sheriff that one of the
properties is bonded, and she never mentioned the second. In these
papers Ms. Mpakati put up a valuation and a bond statement in respect
of Erf 2[...] E[...] which show that there is likely sufficient equity in the
property to satisfy the debt . However, there is no indication what other
debts there may be. The averment that Ms. Mkapati is not insolvent is
not borne out by the papers, and must be seen against her statement
that she has no disposable assets to satisfy the debt.
[13] As the applicant a rgued, in Absa Bank Ltd v Rhebokskloof and
Others2 the Court said:
“Even, however, where a debtor has not committed an act of insolvency
and it is incumbent on his unpaid creditors seeking to sequestrate the
former’s estate to establish actual insolvency on the requisite balance
of probabilities, it is not essential that in order to discharge the onus
resting on the creditor if he is to achieve this purpose that he set out
chapter and verse (and indeed figures) listing the assets (and their
values) and the liabilities (and their values) for which he may establish
the debtor’s insolvency inferentially. There is no exhaustive list of facts
from which an inference of insolvency may be drawn, as for example
an oral admission of a debt and failure to discharge it may, in
appropriate circumstances, which are sufficiently set out, be enough to
establish insolvency for the purpose of the prima facie case which the
creditor is required to make out. It is then for the debtor to rebut this
prima facie case and show that his assets have a value exceeding the
sum total of his liabilities.”
[14] Two principles from the above passage are applicable in this
case. Firstly, even if I were to disregard the judgment against Ms.
case. Firstly, even if I were to disregard the judgment against Ms.
Mpakati, the fact is that the applicants have proven a liquidated debt in
excess of R 100. They thus have locus standi in terms of the
Insolvency Act. The second principle is that where an applicant proves a
2 1993 (4) SA 436 (c) at 443D
debt, and in circumstances in which Ms. Mpakati has on two occasions
stated that she is unable to satisfy the debt, there is an evidentiary
burden on Ms. Mpakati to show that she is not insolvent. She has failed
to do so. Ms. Mpakati should thus be sequestrated.
WINDING UP OF INDALO
[15] I accept that there is no enforceable judgment against Indalo. For
the reasons set out in paragraphs 10 and 11 above, I accept, however,
that the applicants have proven the underlying debt that Indalo owes to
the first applicant.
[16] In terms of section 69 (1) (c) of the Close Corporations Act, 69 of
1984 a close corporation is deemed to be unable to pay its debt if it is
proven to the satisfaction of the Court that the corporation is unable to
pay its debts. Section 69 is essentially identical to section 345 (1) (c) of
the Companies Act, 61 of 1973, and the same principles apply to both
companies and close corporations that stand to be wound up.
[17] In Koekemoer v Taylor and Steyn NNO and Another 3 the Court
held that a company is unable to pay its debts if it is “unable to meet its
current liabilities, including contingent and prospective liabilities as they
become due.” The same principle was applied in Rhebokskloof (supra)4:
“The primary question which a Court is called upon to answer in
deciding whether or not a company carrying on business should
be wound up as commercially insolvent is whether or not it has
liquid assets or readily realizable assets available to meet its
liabilities as they fall due to be met in the ordinary course of
business and thereafter to be in a position to carry on normal
trading- in other words, can the company meet current demands
on it and remain buoyant?”
3 1981 (1) SA 267 (W) at 271 B
4 At 440 F
[18] I accept that service of the writ, and the resultant nulla bona
return did not trigger the deeming provision in section 69 (1) (b).
However, I see no reason why Ms. Mpakati’s statement, that there were
no disposable assets available to satisfy the debt, cannot be considered
to be evidence of Indalo’s inability to pay its debts as they fall due. As
was pointed out in Rhebokskloof (supra) the clearest indication that a
company or close corporation is able to meets its debts is that it actually
does pay. Consequently, it is my view that Indalo should be wound up
as it is unable to pay its debts as they fall due.
URGENCY
[19] Although I have dealt with the merits above, it is necessary to say
something on urgency. Counsel for Ms. Mpakati and Indalo argued that
both applications were not urgent. He says that there is no indication
that Ms. Mpakati avoided service of the writ, as applicants allege, nor
that she has tried to move assets. Therefore, it is argued, the applicants
would receive substantial redress were the applications to be brought in
the normal course.
[20] Counsel is correct, that there is no evidence that Ms. Mpakati is
hiding assets. I also do not believe that she was avoiding the Sheriff.
However, applications for winding up and sequestrations have a
measure of urgency inherent in their nature. It is often important to
establish a concursus creditorum as soon as possible. I must, however,
not be understood to say that all winding up and sequestration
applications are urgent. There must be something more than the mere
fact that the application is for winding up or sequestration.
[21] In this case, not only is there prima facie evidence that Ms.
Mpakati appropriated Catai funds to her close corporation , she has also
put up flimsy explanations for her conduct. Ms. Mpakati also admits that
in another business rescue matter, that of Seratime, she caused the
sum of R 2 806 800, belonging to Seratime , to be paid into Indalo’s
sum of R 2 806 800, belonging to Seratime , to be paid into Indalo’s
account. Even if one were to accept that the monies were subsequently
repaid to Seratime, as Ms. Mpakati suggests, the fact is that Ms.
Mpakati made an irregular payment of Seratime monies to her own
close corporation, instead of holding the monies separate from her own
funds. That is a serious breach of her fiduciary duties.
[22] I find Ms. Mpakati’s explanation in the case of Seratime to be as
dubious as her explanation for appropriating Catai funds. For that
reason it is, in my view, a matter of urgency that the affairs of both Ms.
Mpakati and Indalo be investigated.
[23] Consequently, I make the following order:
IN CASE NO: 2025-202949:
[23.1] The estate of the respondent is provisionally
sequestrated, and her assets are placed in the hands of the
Master of the High Court.
[23.2] A rule nisi is issued in terms of which the
respondent, and any affected party, is called upon to show
cause, if any, on 20 February 2026 why the order should not
be made final.
[23.3] Costs of the application shall be costs in the
administration of the respondent’s insolvent estate on Scale
C.
IN CASE NO. 2025-003969
[23.4] The respondent is placed under provisional
liquidation.
[23.5] A rule nisi is issued in terms of which the
respondent, and any affected party, is called upon to show
cause, if any, on 20 February 2026 why the order should not
be made final.
[23.6] Costs of the application shall be costs in the
administration of the respondent’s estate on Scale C.
SWANEPOEL J
JUDGE OF THE HIGH COURT
GAUTENG DIVISION, PRETORIA
Counsel for the Applicants: Adv. MP Van der Merwe SC
Instructed by: Jaco Roos
Counsel for the respondents: Adv. H Smith SC
Instructed by: MAA Inc
Heard on: 19 November 2025
Judgment on: 4 December 2025