IN THE HIGH COURT OF SOUTH AFRICA
FREE STATE DIVISION, BLOEMFONTEIN
In the matter between
DEON CORNELIUS MAREE
DEON CORNELIUS MAREE JR
and
PHATSHOANE HENNEY INC BLOEMFONTEIN
ELRICH RUWA YNE SMIT N.O.
DONOVAN THEODORE MAJIEDT N.O.
ELIZNA LOUWRENS N.O.
THEA CHRISTINA LOUWRENS N.O.
SONWABILE MABUSELA N.O.
LUKE TIMOTHY FORTEIN N.O.
THE MASTER OF THE HIGH COURT
BLOEMFONTEIN
THE REGISRAR OF .DEEDS
BLOEMFONTEIN
THE DEPARTMENT OF RURAL
DEVELOPMENT AND LAND REFORM
Not Reportable
Case no: 3935/2025
FIRST APPLICANT
SECOND APPLICANT
FIRST RESPONDENT
SECOND RESPONDENT
THIRD RESPONDENT
FOURTH RESPONDENT
FIFTH RESPONDENT
SIXTH RESPONDENT
SEVENTH RESPONDENT
EIGHTH RESPONDENT
NINTH RESPONDENT
TENTH RESPONDENT
2
Neutral Citation: D C Maree and Another v Phatshoane Henney and Others
(3935/2025) [2025] ZAFSHC 22 (22 January 2026)
Coram: Van Rhyn J
Heard: 23 October 2025
Delivered: 22 January 2026
Summary: Application for interim interdict to prevent first to seventh respondents from
proceeding with transfer of immovable properties pending investigation by the Master of
the High Court. Master granted trustees permission - in terms of provisions of s 18(3)
read with s B0(bis) of Insolvency Act 24 of 1936 to dispose of immovable property prior
to second meeting of creditors. Clear right not established.
3
ORDER
1 The application is dismissed with costs.
2 The applicants shall pay the costs, jointly and severally, which costs shall include
the costs of counsel on Scale C.
JUDGMENT
Van Rhyn J
[1] The first and second applicants launched this application on an urgent basis
seeking an in interim interdict to restrain the transfer of various immovable properties
pending a formal investigation in terms of the provisions of s 152 of the Insolvency Act 24
of 1936 (the Insolvency Act). The applicants furthermore sought a final interdict to compel
the trustees/liquidators to furnish certain information and documents to the applicants'
attorney of record. The application is opposed by the trustees/liquidators.
[2] The first applicant is Deon Cornelius Maree, an unrehabilitated insolvent, "Yho has
in persona, together with Deon Conelius Maree Junior, his son, cited as the second
applicant in his capacity as beneficiary of the D C Maree Trust (in sequestration), issued
an urgent application on 29 July 2025 for the matter to be heard on the 7th of August 2025.
In their notice of motion, the applicants sought orders: (i) interdicting the transfer of five
farms situated in the district of Harrismith as described in the notice of motion (the
properties) pending a formal enquiry in terms of Insolvency Act by the Master of the High
Court, Bloemfontein, (the Master); (ii) an order that the Registrar of Deeds, Bloemfontein
be ordered to endorse the interim interdict against the title deeds of the respective
properties; and (iii) to interdict the trustees/liquidators by compelling them to provide
information required to facilitate a s 152 enquiry by the Master, together with costs.
[3] The first applicant previously served as a trustee of the DC Maree Trust, which is
currently under sequestration and the control of the second, third and fifth respondents
4
who had been appointed as trustees by the Master. The first applicant also served as a
member with an interest in Goldensands 31 Trading CC, which close corporation has
been placed under liquidation and the control of the second, third and fourth respondents
as appointed liquidators. The first applicant and his wife have been sequestrated in their
personal capacities and their insolvent estate is being managed by the second, sixth and
seventh respondents as the appointed trustees.
[4] The first respondent is Phatshoane Henney Inc, a firm of attorneys in
Bloemfontein; it is not opposing the application. The first respondent represents Standard
Bank of South Africa (Standard Bank), a major creditor and bondholder in the amount of
approximately R60 million against the combined estates. The first respondent furthermore
represents Standard Bank in a pending damages claim instituted by the applicants, the
first applicant's wife, the trustees of the D C Maree Trust and Goldensands 31 Trading
CC in the Pretoria High Court. The first respondent, through Mr H Otto (Mr Otto), a director
of the first respondent also represents the trustees/liquidators of the insolvent estates as
legal advisor and as the first respondent tasked to effect the transfer of the properties,
which form the subject of this application.
[5] The trustees/liquidators were appointed by the Master in the insolvent estate of
the first applicant and his wife, D C and J G Maree (8103/2023), the trustees in the
administration of the DC Maree Trust and the liquidators in the matter of Goldensands 31
Trading CC (862/2024). The trustees in the insolvent estate of both DC Maree Trust and
the first applicant and his wife will be referred to as the 'Trustees' and the liquidators of
Goldensands 31 Trading CC as the 'Liquidators' individually and collectively as the
trustees/liquidators . The eighth respondent is the Master of the High Court, Bloemfontein
as represented by Mr Strauss while the ninth respondent is the Registrar of Deeds,
as represented by Mr Strauss while the ninth respondent is the Registrar of Deeds,
Bloemfontein. The Master is not opposing the application and filed two reports, one dated
6 August 2025 and the second report dated the 101h of October 2025. The Registrar of
Deeds filed a report dated 5 August 2025. The tenth respondent is the Department of
Rural Development and Land Reform cited as an interested party who made an offer to
purchase the properties. The tenth respondent filed a notice to abide by the decision of
the court.
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[6] The trustees/liquidators opposed the urgent application and filed their answering
affidavit on the 4th of August 2025. The matter did not proceed on the 7th of August 2025
and was rolled over for hearing on the 81h of August 2025. However, on the 8th of August
2025 the trustees/liquidators provided the applicants with an undertaking that transfer of
the properties will not be effected which caused the matter to be postponed to the
opposed roll of 4 September 2025. On the 4th of September 2025 the undertaking not to
proceed with the transfer of the properties was extended and by agreement between the
parties, the matter was postponed to the 23rd of October 2025. The Master was directed
to file a further report on or before the 10th of October 2025 which was duly filed. The
parties were authorised to supplement their papers after receipt of the Master's report
and to file further affidavits on or before the dates as specified in the order of court dated
4 September 2025. At the hearing of the matter, both Mr Naude SC (appearing with Mr
Muller) for the applicants as well as Mr Zietsman SC for the trustees/liquidators, were in
agreement that the issue of urgency has become moot. Accordingly, the issue of urgency
will not be dealt with in this judgment.
[7] The background to the urgent application is as follows: the first applicant and his
wife's estate was provisionally sequestrated on 2 August 2024 and made final on 28
November 2024. The D C Maree Trust was provisionally sequestrated on 15 August 2024
and confirmation of the provisional order was issued on 2 December 2024. Goldensands
31 Trading CC was placed under liquidation on the 151h of August 2024 and the order was
made final on 2 December 2024. It is contended that the first applicant's interest lies in
the fact that he has a reversionary interest in the relief sought and that the second
applicant's interest in the matter is in and because of the fact that he is a beneficiary of
applicant's interest in the matter is in and because of the fact that he is a beneficiary of
the sequestrated D C Maree Trust, of which the first applicant is one of the trustees.
Goldensands 31 Trading CC (in liquidation) and the DC Maree Trust (in sequestration)
are the registered owners of the respective properties.
[8] The first applicant contends that since 6 August 2024 he has been negotiating with
the tenth respondent to purchase the properties, five farms as described in the notice of
motion and which form the subject of this application. However, no written agreement of
sale had been concluded with the tenth respondent prior to the public auction which was
held on the 20th and the 21st of May 2025 at the behest of the trustees/liquidators. It is
common cause that the properties were put up for public auction to be held by Park Village
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Auctions at the Farm Werda, the property of Goldensands 31 Trading CC (in liquidation).
At the auction, certain bidders placed bids on the properties and it is common cause that
a 14-day confirmation period was attached to the sale in auction within which period
higher offers could still be submitted to the trustees/liquidators for consideration. The
applicants' attorney, Mr Visser, attended the auction when the respective bidders made
a combined offer of R43 542 907.40 for the properties.
[9] On the 5th of June 2025, having regard to the fact that the confirmation period of
14 days expires on the 9th of June 2025, Mr Visser addressed a letter via email to the
trustees/liquidators informing them that he holds instructions to submit a further offer to
purchase the properties in the amount of R64 037 897. On 6 June 2025, the auctioneer,
on instructions of the second respondent, replied to Mr Visser's email and provided Mr
Visser with fully prepared deeds of sale in respect of the properties and, in terms of the
rules of auction and the conditions applicable to the auction, informed Mr Visser that the
deposit payable is not refundable in the event of failure to deliver the necessary bank
guarantee(s) and that the deposit is to reflect in the auctioneer's bank account at the latest
on Monday, the 9th of June 2025. Confirmation of the auctioneer's banking details was
appended to the said email. Mr Visser was furthermore requested to submit the signed
deeds of sale by 13h00 on Monday the 9th of June 2025 to provide enough time for
reaction from the highest bidders of the respective properties.
[1 O] On Monday, 9 June 2025 at 07h08, Mr Visser was alerted to the fact that the offers
received at the auction have not yet been confirmed and that the anticipated offer is to be
completed on the auctioneer's conditions of sale and that same must be submitted before
13h00 on even date. The higher offer submitted by Mr Visser will be presented to the
13h00 on even date. The higher offer submitted by Mr Visser will be presented to the
highest bidders for consideration. Once more Mr Visser was informed that the signed
offer and proof of payment into the auctioneer's trust account of the deposit is required
as per the conditions of sale. At 12h38 on the 9th of June 2025, Mr Visser sent an email
to the trustees/liquidators to which he appended two offers to purchase the properties.
The tenth respondent, represented by Luleka Nonyonga, the Chief Director, Free State:
Department Rural Development and Land Reform is reflected as the purchaser of the
properties.
7
[11] After receiving the higher offer from Mr Visser, Mr Otto, on the 9th of June 2025 at
15h19 requested Mr Visser, to provide proof that the Chief Director of the tenth
respondent was authorised to make the offer to purchase the properties on behalf of the
tenth respondent. Again, Mr Visser was informed that any higher offer received within the
confirmation period must comply with the same terms and conditions of the auction
notwithstanding the fact that the offer was made subsequent to the date of the auction.
Due to the fact that the offers received did not comply with the same terms and conditions
applicable to the auction, failure to make payment of the deposit and commission payable
and due to the failure to provide the necessary proof of authorisation to make the offer on
behalf of the tenth respondent, the further offers to purchase_ the properties submitted by
the tenth respondent could not be considered by the trustees/liquidators. Mr Visser was
duly notified.
[12] At 16h54 on the 9th of June 2025 Mr Visser replied to Mr Otto's email and indicated
that he has requested the required authorisation from the Department of Rural
Development and Land Reform and that he will forward the same as soon as possible.
He furthermore indicated that the two offers to purchase the properties are substantially
in accordance with the terms and conditions provided by the auctioneers and that his
client is not bound by the rules of auction as it has not registered to purchase at the
auction. He also argued that' . .. the seller or auctioneer may not charge or receive any
money in respect of the sale of immovable property until the purchaser and seller have
signed the written agreement. This is obviously applicable to both the auctioneer and the
agent who introduced the purchaser.'
[13] On the same day at 18h02, Mr Otto responded to the aforesaid email that no
authorisation has been provided from the tenth respondent as requested and that the
authorisation has been provided from the tenth respondent as requested and that the
trustees/liquidators , his clients, are compelled to follow the correct procedure in instances
of a public auction. Therefore, no undertaking can be provided that the offers received at
the auction from the highest bidders will not be confirmed. On the basis that the higher
offer made by the tenth respondent would have benefited not only the insolvent estates,
the trustees/liquidators (as far as their remuneration is concerned) and also the
auctioneer, confirmation of the highest bidders' offers was kept in abeyance for as long
as possible by the trustees/liquidators. Only at 21 h43 on the 9th of June 2025, the
trustees/liquidators confirmed the highest bidders' offers subsequent to receiving the
8
secured creditor's (Standard Bank) permission. On 10 June 2025, Mr Visser was duly
informed that the highest offers made at the auction were indeed confirmed.
[14] Mr Visser responded and indicated that according to his calculations and having
regard to the substantial higher offer of approximately R20 million more than the highest
bidders at the auction, it is likely that the first applicant and his wife as well as the D C
Maree Trust are not insolvent and that an estimated surplus of R29 700 000 may be
available. Mr Visser opined that the trustees/liquidators acted hastily in accepting the
lower offers made at the auction and thus harming the first applicant and his wife as well
as the beneficiaries of the D C Maree Trust. He requested cogent reasons why the offers
made by the tenth respondent were not acceptable and why accepting the lower offers
made at the auction would benefit the estates. He informed the trustees/liquidators that
he received instructions to seek damages from them as well as their attorneys in the event
of the sale of the properties at the prices offered at the auction.
[15] On the 13th of June 2025, Mr Visser again voiced his concerns regarding, inter alia,
the fiduciary duty resting upon the trustees/liquidators to act impartially and to maximise
the estate's value. He requested an undertaking from the trustees/liquidators that no
steps will be taken to finalise or approve the lower offers until the Master intervenes to
investigate the rejection of the higher offer for the properties. Should no satisfactory
response be received by the 17th of June 2025, urgent judicial intervention will be sought,
including an application to compel transparency, the setting aside of the rejection of the
tenth respondent's offer, and an interdict to stay the transfer of the properties (amongst
other relief). In response, Mr Otto reiterated that no authorisation has been provided by
the tenth respondent to authorise the signatory to make the offer to purchase. The offers
the tenth respondent to authorise the signatory to make the offer to purchase. The offers
received from the successful bidders at the auction complied with and were made in terms
of the rules of auction and according to the applicable terms and conditions of sale. As a
result, the trustees/ liquidators are compelled to follow the correct procedure in instances
of a public auction held and therefore an undertaking to keep the matter in abeyance
cannot be provided as requested.
[16] On 17 June 2025, eight days after confirmation of the offers made by the highest
bidders at the auction, confirmation of Ms Nonyongo as employee and Chief Director of
the tenth respondent (being the only senior manager in the Free State Province to present
9
or accept an offer to purchase immovable property on behalf of the tenth respondent) was
provided to Mr Otto. On the 19th of June 2025 Mr Visser again requested a formal
undertaking not to proceed with the transfer of the various properties sold at the auction
and that the request is made pending the Master's investigation of the rejected higher
offer for the properties. The trustees/liquidators were informed that the relevant
correspondence has been submitted to Mr Strauss at the Master's office, who
telephonically confirmed that he is addressing the matter. In_ the event that the required
undertaking is not provided, an urgent court application to obtain an interim interdict to
prevent the transfer of the various properties will be sought. Mr Otto was furthermore
informed that if a report from the Master is not received, an order of court will be sought
directing the Master to investigate the issues raised and to provide a report to the court
regarding the Master's findings.
[17) On 2 July 2025, Mr Visser addressed a letter to the Master, trustees/liquidators of
the insolvent estates and to Mr Otto 'demanding' that the Master invoke both s 71 and s
152 of the Insolvency Act to address the maladministration of the insolvent estates, to
prevent prejudice and a hastened sale and transfer of the properties. In addition the
Master was called upon to demand delivery, by no later than the 81h of July 2025, in terms
of s 152(1) of the Insolvency Act, of numerous documents and records including, inter
alia, the bidders record, vendors roll, offers on all assets, confirmation or acceptance of
offers, records of creditors paid in full or partially and a list of all the creditors who have
proved claims against the various estates as well as communications between Mr Otto,
trustees/liquidators, Standard Bank and the auctioneer relating to the sale of the
properties. A demand was contained in the said letter that summonses/notices be issued
properties. A demand was contained in the said letter that summonses/notices be issued
for the trustees/liquidators, Mr Otto (as the attorney acting on behalf of Standard Bank
and the trustees/liquidators) and the auctioneer to address the rejection of the tenth
respondent's offer, Standard Bank's influence in the sale of the properties and Mr Otto's
dual representation of both Standard Bank and the trustees/liquidators.
[18) The Master was informed that -Mr Otto provided evasive responses and the
trustees/liquidators failed to provide a detailed debatement, substantive reasons for
rejecting the offer from the tenth respondent or clarity on the damages claim in the amount
of R35 million instituted against Standard Bank. A further demand was made that:
10
(a) in terms of the provisions of s 152(4) of the Insolvency Act, the legal team acting on
behalf of Mr Visser's clients participate in the interrogation to probe the issues mentioned
in the letter. The Master was tasked to provide direction for an interim undertaking by the
8th of July 2025 from the trustees/liquidators not to transfer the properties pending
finalisation of the interrogation and investigations;
(b) an investigation in terms of the provisions of s 60(b) and (e) into the conduct of the
trustees/liquidators for failing to perform their duties, their unsuitability as well as Mr Otto's
conflict of interest with reference to rule 58.8 of the Legal Practice Council's Code of
Conduct; and
(c) clarification of the status of the damages claim instituted against Standard Bank, with
a directive to pursue or release it from the relevant estate.
[19] On 8 July 2025, the Master requested Mr Visser to provide him with complete sets
of applications for interrogations in the three insolvent estates to enable him to consider
permission to investigate the affairs of the estates. The liquidators were requested not to
proceed with the transfer of the properties until the 1st of August 2025. Unfortunately, Mr
Otto did not perceive the Master's request as a directive but merely as a request not to
proceed with the transfer of the properties and replied that only a court of law may interdict
the transfer of the properties. On 23 July 2025, Mr Otto indicated that the estate records
will be made available to the Master upon confirmation of the entitlement of the first
applicant and his wife thereof and such a directive being issued by the Master. On behalf
of the trustees/liquidators, Mr Otto however, confirmed that full cooperation will be
provided to the Master and that no need exists for a s 152 enquiry into the actions taken
by the trustees/liquidators or himself in respect of the estates. Neither the
trustees/liquidators nor Mr Otto will subject themselves to a formal interrogation on the
trustees/liquidators nor Mr Otto will subject themselves to a formal interrogation on the
basis that all the issues have been addressed and that the allegations of
maladministration and breach of fiduciary duty are without legal basis or substance and
are rejected by the trustees/liquidators. Thereafter the urgent application was issued on
the 291h of July 2025.
[20] The applicants argue that up-front payments are not required under the regulations
of the Consumer Protection Act 68 of 2008 and are, in fact, prohibited. There are no
provisions in any agreements or terms and conditions that require authority to act before
offers may be considered. In any event, none of the grievances raised by Mr Otto were
11
so substantial as to warrant an outright rejection of the offers made by the tenth
respondent. The applicants contend that the difference between the offers for the
properties amount to R20 494 989.60 and, notwithstanding the tenth respondent's written
confirmation that it remains willing and able to proceed with its offer to purchase the
properties, the trustees/liquidators of the insolvent estates have advised that the lower of
the two offers was accepted.
[21] The applicants contend that the Master will establish the facts pertaining to the
proposed s 152 enquiry and that it is not necessary for the court to investigate the alleged
maladministration pertaining to the three estates. The applicants contend that they have
a prima facie right to the fair administration of the estates which includes the safeguards
provided by the Master's oversigh~ over the administration process. The beneficiaries of
the D C Maree Trust have a vested and reversionary right which may be prejudiced due
to the ma/a fide actions and dealings of the trustees/liquidators. Taking cognisance also
of the free residue that might be realised, as a result of the higher offer received from the
tenth respondent, it is contended that the applicants have a prima facie right to prevent·
the transfer of the properties and a clear right of access to the information requested in
terms of s 71 of the Insolvency Act.
[22] A formal request in terms of s 71 of the Insolvency Act was submitted to provide
the book of all receipts, including monies, goods, books, accounts and other documents
received by the trustees on behalf of the three estates. Notwithstanding the Masters email
dated 9 July 2025 requesting the trustees/liquidators to provide the applicants with the
record book of each of the respective estates in terms of s 71 of the Insolvency Act and
s 393 of the Companies Act 61 of 1973 (the Companies Act) for inspection on or before
12h00 on the 23rd of July 2025, no such information had been made available when the
12h00 on the 23rd of July 2025, no such information had been made available when the
founding affidavit was deposed to on the 29th of July 2025.
[23) The applicants argue that they will suffer irreparable harm on the basis that the
Master issued a directive not to proceed with the transfer of the properties. However, the
stance of the trustees/liquidators is that they will take the necessary steps too effect
transfer of the properties. No other remedy is available to the applicants to bar the
trustees/liquidators from transferring the properties. It is furthermore argued that the
constitutional rights of the applicants will be infringed if the interdict is not granted. No
12
inconvenience is alleged by the bidders of the properties. The inconvenience caused in
the event of finalising the investigation pertaining to the maladministration of the estates
by the trustees/liquidators is tolerable having regard to the duties of such officials.
[24] The following points in limine were raised by the trustees/liquidators:
(a) The non-joinder of the highest bidders at the auction with whom contracts were
concluded between the trustees/liquidators regarding the properties. This issue was
addressed on the basis that the trustees'/liquidators' attorney gave notice of the
application to the purchasers at the auction and had informed them that they have a right
to join in the application if they so wished. None of the purchasers gave notice of their
intention to join in the application and this point has therefore become moot.
(b) The relief sought by the applicants is untenable. Firstly, in respect of the interim
interdict, the same cannot be granted pending some or other investigation by an
administrative body. An interim interdict can only be granted pending a decision by a court
of law. Secondly, with reference to the final interdict, what the applicants move for falls
within the four corners of the jurisdiction of the Master :- it is only the Master who can
convene a s 152 interrogation in terms of the Insolvency Act and only the Master may
decide upon providing the requested information/documentation to the insolvent(s)
attorney.
(c) concerning locus standi, the trustees/liquidators contend that the first applicant has a
reversionary interest in his own insolvent estate, but so too does his wife who has not
been cited as a party in this application. It is denied that any of the beneficiaries of the D
C Maree Family Trust have any reversionary right in the sequestration of the said trust.
The only persons that have such an interest are the trustees (or former trustees). Both
the first applicant and his wife have been sequestrated and Mr Piet Uys is an independent
the first applicant and his wife have been sequestrated and Mr Piet Uys is an independent
trustee who has not been cited as an applicant in this urgent application. The said Mr Piet
Uys is thus the only trustee vested with a reversionary interest in the insolvency of the
said trust.
[25] Subsequent to the request made on behalf of the applicants to be provided with
information pertaining to the records of the three estates, the trustees/liquidators denied
the insolvents' entitlement to the information requested. Subsequent to the issuing of the
urgent application, the trustees/liquidators, most probably on advice from and with the
assistance of Mr Zietsman SC, provided a full set of all the records in the three insolvent
13
estates to the Master, as requested by Mr Strauss, and therefore the relief claimed in this
regard has become moot. On behalf of the trustees/liquidators, Mr Zietsman SC argued
that the relief sought by the applicants in respect of the interim interdictto prohibit the
transfer of the properties pending an investigation by the Master, as set out in prayer 2 of
the notice of motion, is untenable. The applicants have not applied for the amendment of
the notice of motion and have merely handed up a draft order at the hearing of the matter
in an endeavour to address the shortcomings in the relief sought, which had already been
pointed out by the trustees/liquidators in their answering affidavit filed on 5 August 2025.
[26] The trustees/liquidators contend that no case has been made out by the applicants
that the properties were sold wrongly. In terms of the provisions of the Consumer
Protection Act and the regulations thereto, the trustees/liquidators were legally obliged to
request the further information from Mr Visser regarding the offer made by the tenth
respondent and due to the non-compliance with the requirements, they proceeded to
confirm the offers received from the highest bidders at the auction. If the Master intended
to proceed with an enquiry, as proposed by the applicants, the Master had ample time to
indicate such intention to the parties. As to the order sought to provide the insolvents with
the information requested, the Master may decide to provide the applicants with the
requested information and there is no obligation on the trustees/liquidators to provide the
applicants with such information. No clear right has been made out in this regard and as
a result, the trustees/liquidators move for the dismissal of the application with costs.
[27] At the hearing, the applicants sought a rule nisi and an interim interdict returnable
on 5 February 2026 following the Master's investigation in terms of s 152 of the Insolvency
on 5 February 2026 following the Master's investigation in terms of s 152 of the Insolvency
Act in terms whereof the trustees/liquidators are interdicted and restrained from
proceeding with the transfer or registration of the properties. The relief sought by the
applicants is set out in a draft order handed up by Mr Naude SC. Mr Naude SC conceded
that the relief sought by the applicants, as formulated in the notice of motion, is untenable
and therefore seeks the relief as per the draft order.
[28] Apart from the interlocutory interdict pertaining to the transfer of the properties and
investigation and report by the Master, the applicants furthermore seek an order in terms
whereof the ninth respondent is ordered to endorse the interim interdict against the title
deeds of the properties prohibiting any transfer or registration thereof pending the return
14
date. An interlocutory interdict is one which is granted pendente lite - there must be legal
proceedings pending between the parties.1 It is a provisional order designed to protect
the rights of the complaining party pending an action or application to be brought by him
to establish the respective rights of the parties. The requirements which an applicant for
an interlocutory interdict has to satisfy are the following:2
(a) a prima facie right;
(b) a well-grounded apprehension of irreparable harm if the interim relief is not granted
and the ultimate relief is eventually granted;
(c) a balance of convenience in favour of the granting of the interim relief; and
(d) the absence of any other satisfactory remedy.
[29] Section 152 of the Insolvency Act provides as follows:
'The Master may direct trustee to deliver documents or property or call upon. any person to
furnish certain information:
(1) The Master may at any time direct a trustee to deliver to him any book or document relating
or any property belonging to the insolvent estate of which he is trustee.
(2) If at any time after the sequestration of the estate of a debtor and before his rehabilitation,
the Master is of the opinion that the insolvent or the trustee of that estate or any other person is
able to give any information which the Master considers desirable to obtain, concerning the
insolvent, or concerning his estate or the administration of the estate or concerning any claim or
demand made against the estate, he may by notice in writing delivered to the insolvent or the
trustee or such other person summon him to appear before the Master or before a magistrate or
an officer in the public service mentioned in such notice, at the place and on the date and hour
stated in such notice, and· to furnish the Master or other officer before whom he is summoned to
appear with all the information within his knowledge concerning the insolvent or concerning the
insolvent's estate or the administration of the estate.'
insolvent's estate or the administration of the estate.'
[30] Whether an applicant has a right is a matter of substantive law. An interim interdict
will be granted if the court is satisfied that the applicant has a right established upon a
balance of probabilities and that the respondent has invaded it or threatens to do so. It is
common cause that the offers to purchase the properties submitted by Mr Visser on behalf
of the tenth respondent were not contained in the pro forma offers sent by the auctioneer
1 Botha v Maree 1964 (1) SA 168 (0).
2 Setloge/o v Setlogelo 1914 AD 221 at 227.
15
to Mr Visser, notwithstanding the fact that it was made clear to him that the conditions of
sale and rules of auction require that offers received within the confirmation period are
required to comply with the same terms and conditions of auction. Although Mr Visser
was advised,_ on numerous occasions, that a deposit and/or commission were payable to
the auctioneers in terms of the rules of auction, no payment of the required deposit and
commission had been received within the confirmation period. In fact, it was specifically
denied that the auctioneer is entitled to any payment in this regard. The authorisation to
purchase the properties on behalf of the tenth respondent was not provided to Mr Otto
within the confirmation period.
[31] Section 82 of the Insolvency Act provides as follows:
'82. Sale of property after second meeting and manner of sale
(1) Subject to the provisions of sections eighty-three and ninety the trustee of an insolvent
estate shall, as soon as he is authorised to do so at the second meeting of the creditors of that
estate, sell all the property in that estate in such manner·and upon such conditions as the creditors
may direct: Provided that if any rights acquired from the State under a lease, licence, purchase,
or allotment of land is an asset in that estate, the trustee shall, in his administration of the estate,
act in accordance with those provisions (if any) which by the law under which the rights were
acquired, are expressed to apply in the event of the sequestration of the estate of the person who
acquired those rights: Provided that if the creditors have not prior to the final closing of the second
meeting of creditors of that estate given any directions the trustee shall sell the property by public
auction or public tender. A sale by public auction or public tender shall be after notice in the
Gazette and after such other notices as the Master may direct and in the absence of directions
Gazette and after such other notices as the Master may direct and in the absence of directions
from creditors as to the conditions of upon such conditions as the Master may direct.'
[32] In the Master's report dated 6 August 2025 9 (the first report) it is, inter a/ia, noted
as follows:
'1. the Applicants' Notice of Motion (Urgent Application) , founding affidavit and annexures were
served on me.
2. I am not going to oppose the relief sought.
3. I have requested the liquidators on 8 July 2025 not to go ahead with the transfer of the farms
by 1 August 2025. I considered a request and a directive as the same.
4. Section 152 of the Insolvency Act, Act 24 of 1936, as amended, is necessary to address
complaints of maladministration and to investigate the administration of the estates.
16
5. The trustees submitted the first liquidation and distribution account in the insolvent estate of D
C Maree and J G Maree 8103/2023 on 1 August 2025. The account is not examined and
approved yet. The trustees scheduled the second meeting of creditors for 31 July 2025 at
Magistrate Harrismith, just one day before submission of the first account. I am not sure whether
the creditors adopted the resolutions. I will therefore not be able to approve the liquidation and
distribution account. The minutes of the second meeting of creditors and the accompanying
trustees' report and resolutions are not submitted to me yet. I received an application in terms of
section 80(bis) of the Insolvency Act Act 24 of 1936, as amended, to dispose of the immovable
property and the movable property, which application I granted on the on 20 March 2025. The
Trustees went ahead to advertise the liquidation and distribution account to lie for inspection on
1 August 2025 before the Mater could examine and approve the account. No query sheet is issued
yet.
6. The trustees scheduled the second meeting of creditors in the matter of D C Maree Trust IT
1195/95 at the Magistrate Harrismith on 31 July 2025 at 1 0h00. The minutes of the second
meeting of creditors with the trustees' report and resolutions were not yet submitted to me. I am
not sure whether the creditors adopted the resolutions. . . . I granted the trustees permission
per second application on 12 December 2024 in terms of section18(3) read with section 80(bis)
of the said Act to dispose of the immovable property prior to the second meeting of creditors.'
And further:
'I received the first liquidation and distribution account on 4 August 2025. The liquidatic_m and
distribution account was advertised to lie open for inspection on 1 August 2025 before the Master
could examine and approve the liquidation and distribution account and before the minutes of the
second meeting of creditors and the trustees' report with resolutions were submitted. Therefore,
no query sheet is issued.
7. I have received a recommendation from the liquidators in terms of section 386(2A) of the
Companies Act, Act 61 or 1973, as amended, read with s 66(1) of the Close Corporations Act,
Act 69 of 1984, as amended, on 12 December 2024 in the matter of Goldensands 31 Trading
CC 862/2024 to sell immovable property by private treaty. I granted permission on 12 December
2025 in terms of section 386(28) of the Companies Act, Act 61 of 1973, as amended, read with
section 66 of the Close Corporations Act, Act 69 of 1984, as amended, to sell the immovable
property by private treaty. On 18 March 2025 I granted permission to sell the immovable property
with a second recommendation from the liquidators dated 11 February 2025. The two permissions
were granted before the first and second meeting of creditors. The Liquidators' report was
accepted, and the creditors adopted the resolutions . No Liquidation and distribution was received
in the matter of Goldensands CC in liquidation.
17
8. I confirm that I have requested the trustees and liquidators, respectively, to comply with section
71 of the Insolvency Act, Act 24 of 1936, as amended and section 393 of the companies Act, act
61 of 1973, as amended, by 23 July 2025 at 12h00.'
[33] The Master, inter alia, reported the following aspects in the supplementary report
dated 10 October 2025:
'2. Mrs JG Maree, with whom the first Applicant is married in community of property, is not cited
as second Applicant.
3.1 confirm that access to section 80(bis) applications by the trustees was allowed by email to Mr
Visser , the Applicants' attorney, on 5 August 2025.
4. I cannot confirm that financial misconduct exists and therefore I could not report the trustees
and liquidators to the authorities as required in terms of section 34(1) of the Prevention and
Combating of Corrupt Activities Act, 12 of 2024 (Precca), as amended. The trustees and
liquidators did not reflect the proceeds of the farms in any liquidation and distribution account yet
but only movable assets.'
And further:
'There is no first liquidation and distribution account submitted in Goldensands 31 Trading CC.
The first liquidation and distribution account is due. The liquidators did not file an application for
extension of time to submit the first account and a final reminder to collect the first account is
ready to be issued.
5. The trustees and liquidators complied with section 71 of the said Insolvency Act and section
393 of the Companies Act, Act 63 of 1971, as amended, on 18 August 2025. Mr Visser had access
to those records.'
[34] From the contents of the second report and with reference to case law, the Master
raised the issue that he became aware of the fact that the trustees advertised the first
liquidation and distribution accounts to lie open for inspection before the Master was
afforded the opportunity to examine and approve the accounts. According to the Master,
afforded the opportunity to examine and approve the accounts. According to the Master,
the trustees advertised two liquidation and distribution accounts to lie open for inspection
without authority. No objections were received pertaining to these accounts and the
Master continued to confirm the two accounts in terms of s 112 of the Insolvency Act.
Reference is made to the fact that the first and second creditors' meetings in all three of
the entities were held before the Magistrate at Harrismith and the said magistrate
therefore considered the meetings as being valid. According to the Master the
trustees/liquidators provided sufficient information about the details of the first and second
18
meetings to the parties interested in the 'liti~:::":tion papers'. The liquidators scheduled the
first and second meeting of creditor:, in Goldensands 31 Trading CC in the Government
Gazette. The trustees/liquidators sc~,edu,ed a second meeting of creditors in terms of the
provisions of s 40(3)(a) and (b) of the insolvency Act and all the trustees'/liquidators'
reports were accepted and resolutions adopted at the second meeting of creditors. The
Master reported that:
'The liquidators scheduled the first and second meeting of creditors in Goldensands 31 Trading
CC in the Government Gazette. The Master issued a notice having the details of the first meeting
in terms of ttie Master's codes of estates and sent it to the trustees and the Magistrate's offices
for their attention. The trustees and liquidators scheduled a second meeting of creditors in terms
of section 40(3)(a) and (b) of the said lnso\vency Act. All the trustees' reports and liquidators'
reports were accepted and the resolutions were adopted at the second meeting of creditors
conducted by Magistrate Harrismith.'
[35] For purposes of this application it is necessary to consider the auction rules, read
with the advertisement of the auction, the auction conditions of sale and the requirements
under the Consumer Protection 'Act read witti' the .. relevant regulations. 3. The auction was
advertised in the Landbouweekblad: the Farmers' ·weekly and various other social media
. .
forums. The advertisements pertaining to the auction held on 20 and 21 May 2025
specifically provided for a R10 000 refundable registration deposit payable and R50 000
refundable registration deposit . payable··whe·n bidding on immovable property. Buyers
commission at 6% plus VAT is payable on immovable property and a 13% deposit
- . ' .
payable on the fall of the hammer. For the balance of the purchase price, the purchaser
must provide a ·bank guarantee 30 days after confirmation. A further condition was that
must provide a ·bank guarantee 30 days after confirmation. A further condition was that
all a rear rates, taxes and levies were payable by the buyer. Occupation of the properties
would be on registration in the name of the purchaser. A 14-day confirmation period is
applicable on the sale of immovable . property. The same conditions of auction were
advertised in the Government Gazette.
[36] In terms of clause 12 of the rules of auction, all prospective bidders must register
his or her identity in the bidders record prior to the commencement of the auction. The
rules of auction specifically provide that a bid taken from an unregistered person is invalid.
Copies of the rules of auction provided by Park Village Auctions and the pro forma terms
3 Government Gazette No 34180, 1 April 2011.
19
and conditions of sale of immovable properties by public auction is attached to the
answering affidavit. These rules were read out at the commencement of the auction.
Paragraph 23 of the rules of auction provides as follows: 'The purchaser's bid/offer shall
remain open for acceptance by the seller or by the auctioneer on behalf of the seller until expiry
of the confirmation period. The purchaser and the auctioneer acknowledge and agree that this
provision is for the benefit of the seller. Negotiations between the highest bidder and the seller
may arise during such confirmation period and should any subsequent bid be received during
such confirmation period, the new bidder will be required to register in terms of these rules of
auction and will have one opportunity lo .submit a higher bid and the highest bidder of the first
instance shall have the right to equal or better such subsequent bid.'
[37] . Regulation 24(b) issued in terms of the Consumer Protection Act, determines that
an auctioneer may not charge or receive any fee or commission in respect of the sale of
immovable property until the purchaser and the seller have signed a written agreement
in respect of the sale of such immovable property. Regulation 24(c) provides that an
auctioneer may not charge or receive any fee or commission from the purchaser if the
seller defaults or where such fee or commission has aiready been paid by the purchaser
to the auctioneer, the auctioneer shall immediately refund the purchaser the amount paid,
including deposit. Regulation 24(d) provides that the auctioneer may not charge or
receive any fee or commission from the purchaser, if the purchaser defaults , exceeding
10% of the purchase price or the total costs of advertising and conducting an auction and
such additional costs as may be been reasonably incurred in accordance with regulation
21 (2)(/J, whichever is the lesser.
[38] The applicants place reliance upon the existence of the 14-day confirmation period
[38] The applicants place reliance upon the existence of the 14-day confirmation period
as provided for in the rules of auction in the sense that it is contended that Mr Visser
submitted the offer per email on the last day of the confirmation period being the. 9th of
June 2025. However, it appears as if the other conditions and rules should not be
applicable on the basis that the tenth respondent did not attend the auction. On behalf of
the applicants, it is argued that there is no obligation upon the trustees/liquidators to
accept any offer made at the auction or, for that.matter subsequent to the auction, on the
basis that a trustee or liquidator occupies a position of trust not only towards creditors but
also towards the insolvent estates. The trustees/liquidators must therefore have regard
to the best interest of the insolvent estates where these interests are not in conflict with
20
the interests of creditors.4 On betiaif of the applicants it is contended that the
trustees/liquidators acted hastily, and without consideration of what would be to the
benefit of the estates, pushing for the saie of the properties in an endeavour to finalise
the process to enable them to obtain payment of their fees.
[39) It is competent for the Master, on receiving a recommendation and reasons from
the trustees/liquidators that any immovable property should be sold prior to the second
meeting of creditors,5 to authorise the sale thereof, which in fact occurred in casu. After
consideration of the trustees'/liquidators' reports and documents submitted therewith, it
is competent for creditors to give directions to the trustees/liquidators as to the future
administration of the estates.6 If no directions have been given by the creditors and there
is no proposed resolution or direction for the Master to approve, the· Master may give
directions relating to any matter as to the administration or realisation of the estate(s}, as
he thinks fit.7 A direction given by the Master and any proposed resolution or direction
thus approved, is binding on the trustees/liquidators. 8 Subject to all the provisions referred
to, every resolution of creditors -as declared and recorded in the minutes of the meeting
is binding upon the trustees/liquidators in as far as it is a direction to such
trustee/liquidator9 and a trustee/liquidator.who acts contrary to any such resolution may
be interdicted from so doing unless it is illegal by reasons of being in conflict with either
the letter or spirit of the insolvency laws.
[40) The realisation of the estate assets is one of the most important duties of a trustee.
After the second meeting of creditors all such assets must be sold by him/her (or as
required) and the obligation imposed upon a trustee in terms of the provisions of s 82 of
the Insolvency Act presupposes that the sale of the estate property is not unlawful or
the Insolvency Act presupposes that the sale of the estate property is not unlawful or
prohibited.10 It is not the case of the applicants that the sale of the properties by the
trustees/liquidators occurred unlawfully or not in terms of the directions of creditors or
contra the authorisation of the Master. In this regard the argument raised on behalf of the
4 Dippenaar N.O. and Others v Noordman N.O. [2922) ZAFSHC 181 para 25; Jacobs v Hessels 1984
(3) SA 601 (T) at 605G.
5 Section 80(bis) of the Insolvency Act 24 of 1936.
6 Section 81 (3)(a) of the Insolvency Act.
7 Section 81 (3)(c) of the Insolvency Act.
8 Section 81 (3)(d) of the Insolvency Act 24 of 1936
9 Section 53(3) of the Insolvency Act 24 of 1936; Thorne v The Master 1964 (3) SA 38 (N).
10 Oertel NO v Director of Local Government 1981 (4) SA 491 (T) at 508H.
21
applicants is merely that Mr Otto obviously only obtained the permission of Standard Bank
to confirm the sale of the properties to the highest bidders subsequent to the expiry of the
confirmation period as is evident from the emails appended to the answering affidavit,
and did not consult with any of the other creditors who are being bypassed.
[41] Section 53(5) of the Insolvency Act provides that the majority of creditors (reckoned
in number and in value) may direct the trustee to employ or not to employ a particular
attorney or auctioneer in connection with the administration of the estate and if the trustee
has reason to believe that it will not be in the interests of the estate to carry out such
direction, he may submit the matter to the Master, whose decision, after considering any
representations in writing by the trustee and the creditors, shall be final. To sell or abandon
the assets of the estate, the creditors may also give directions as to the time, place,
manner of sale and the conditions of sale. The scheme of the Insolvency Act is that
creditors are ultimately in charge of the winding-up of an insolvent debtor' estate. In
Mookrey v Smith NO and Another11 the court held as follows:
'It seems to me that no-matter how sincerely ·a purchaser _believes that a sale to him by the trustee
is to the benefit of the estate, that belief cannot save a transaction which, to the knowledge of the
buyer, the trustee had no authority to conclude. I find fortification for this view in the provisions of
s 82(7) of the Act. '12
A sale out of hand is not ipso facto invalid in that creditors may authorise such a sale. In
the absence of such authority, however, the trustee should sell by public auction otherwise
he will be liable for any damages caused to the estate of the insolvent by the fact that the
sale was underhand.13
[42] The decision as to the realisation of assets rests with creditors and not with the
[42] The decision as to the realisation of assets rests with creditors and not with the
insolvent.14 In Kruger v Symington N. 0. en Andere 15 it was held that no objection can be
made to the sale of assets in an _insolvent estate in good faith and in the prescribed
manner merely on the ground that it-has been sold below its real value unless reliance
can be placed on some impropriety or irregularity in connection with the sale. Mr Naude
SC contended that the trustees/liquidators failed to have regard to the fact that the
11 Mookrey v Smith NO and Another 1989 (2) SA 707 (CPD).
12 Ibid at 714E.
13 Mears v Pretoria Estate & Market Co. Ltd 1906 (5) TS 291.
1 ◄ Jordaan v Richter 1981 (1) SA 490 (0) at 496E-F.
15 Kruger v Symington N. 0. en Andere 1958 (2) SA (OPD).
22
valuations obtained in respect of the properties were approximately R2 million more that
the highest offers received at the auction and that the offer made by the tenth respondent
would have been to the benefit of the estate~.
[43] In this regard it is noteworthy that the first applicant had been negotiating with the
tenth respondent for a prolonged period of time regarding the purchase of the properties,
yet no offer was received prior to the 9th of June 2025. l_t is also of significance that a
representative of the tenth respondent attended the auction where this person introduced
herself/himself to Mr Visser who was also in attendance. It is stated by the applicants that
the representative however left the auction prior to its commencement. No explanation
was however provided by the applicants, nor by the tenth respondent why, if the tenth
respondent seriously contemplated purchasing the properties, failed to take the
necessary precautions and steps to make an offer to purchase the properties while
attending the auction. If the tenth respondent had indeed resolved to purchase the
properties, no reasonable explanation has been given why it failed to register as a bidder,
pay the commission and registration fee and .make a bid to purchase the properties in
accordance with the rules of auction and the applicable legislation.
[44] It appears as if the tenth respondent's representative who went to the farm where
the auction was to be held did not have the necessary authorisation to make an offer
because such authorisation was only made available on the 17th of July 2025, subsequent
to numerous requests made to Mr Visser to provide the trustees/liquidators with the
required authorisation. In any event, the representative, if he/she took the time to stay at
the auction, would have gained knowledge of the highest offers made in respect of the
respective properties and would have been able to provide these facts to the financial
respective properties and would have been able to provide these facts to the financial
decision makers of the tenth respondent. Even though Mr Naude SC argued that the fact
that the tenth respondent is willing to pay R20 million more than the highest offers
received at the auction for the properties is indicative of its determination to obtain
ownership of these properties, the obvious question remain: 'Nny would . the tenth
respondent be prepared to pay R20 million more but decline to register as a bidder, pay
a deposit and commission and comply with the rules of auction?
[45] The tenth respondent is furthermore unwilling to pay the outstanding municipal
taxes, rates and levies in respect of the properties in accordance with one of the special
23
conditions of sale at the auction. In the matter at hand, the auctioneers agreed in writing
that the commissions and fees payable will be refunded if the offer is not accepted by the
seller. Furthermore , the offer to purchase received from Mr Visser included a clause that
commission on the transaction was payable to a different person/entity than what was
stipulated in the rules of auction, read with the conditions of sale, namely the commission
payable to the auctioneers. A price which would be to the benefit of the creditors and the
insolvent estates, remain prejudicial to all involved if it is not paid. As Mr Zietsman SC
quite correctly contends, the trustees/liquidators would have undoubtedly preferred to
conclude sale agreements in respect of the properties with the tenth respondent and in
accordance with the offer submitted by Mr Visser as it would have benefitted the estates,
the creditors and the trustees/liquidators .
[46] The Master authorised the sale of the immovable properties subsequent to the
application(s) made by the trustees/liquidators and the auction proceeded as advertised
and in terms of the rules of auction and applicable conditions. However, the offer made
by the tenth respondent did not comply with the _rules of auction. It therefore appears as
• • • i ~
if validly concluded deeds of sale, to which the _trustees are bound in law, had indeed
been concluded with the highest bidders at the auction.
[4 7] On behalf of the applicants it is argued that numerous irregularities have occurred
regarding the conduct of the trustees/liquidators in that, inter a/ia, the first and second
meeting of creditors in the Goldensands 31 Trading CC estate was held some seven
months after the final liquidation order was granted, Mr Otto's association with Standard
Bank creates a conflict of interest and the best interest of the estates have not been taken
into account as it is evident that 'Standard Bank's interest ultimately drive the decisions'.
into account as it is evident that 'Standard Bank's interest ultimately drive the decisions'.
A claim has been instituted against Standard Bank and the trustees/liquidators have failed
to proceed with such claim. In this regard, Mr Visser has ascertained that no further steps
have been taken to diligently advance the said action. It is furthermore contended that if
there is a free residue, that would negatively affect the claim against Standard Bank,
however, if there is no free residue then the applicants claim against Standard Bank
becomes increasingly difficult. Therefore, so the argument goes, Standard Bank does not
seem to prioriti;;e the best interest of the estates and would simply be content if it obtained
its claim. The trustees/liquidators did not mention the action by the estates against
Standard Bank, as required in terms of s 81 (1 )(g) of the Insolvency Act at the creditors'
24
meetings. Furthermore, Standard Bcmk i:: also providing expert valuations pertaining to
the properties.
[48] In respect of Goldensands 31 Trad111g CC, as to the failure of the liquidators to
comply with the piOvisions of s 78 of the Close Corporations Act 69 of 1984, it is argued
that the liquidators arranged for a first meeting of creditors to take place as soon as they
were able to do so. On 19 March 2025, the Master enquired from the liquidators when
the first meeting of creditors will be convened. Jt was reported to the Master that the first
meeting of creditors in the said estate will be held on the 9th of June 2025, a date arranged
according to the availability of the Magistrate from Harrismith. The liquidators contend
that in practice, and if the Master did net consent to the arrangement of the first meeting
of creditors, they would have been informed that such arrangement is not acceptable and
that consent to hold the meeting as arranged with the Magistrate of Harrismith is denied,
which did not happen. In any event the issue regarding the date arranged for the first
meeting of creditors was only raised in reply and no relief is sought pertaining to this
issue. Even if the issue of the first meet[ng of creditors and other complaints are raised to
bolster the applicant's arguments regarding possible maladministration of the estates, it
remains within the discretion of the Master to investigate these aspects. The Master has
an unfettered di~cretion to order an enquiry in-terms of s 152 of the Insolvency Act and
the parties are ad, idem that it is ·not necessary. for the court to decide upon any of these
issues because t~e f\llaster will establish the facts.
[49] Rule 58.8 ofth~ Legal Practice council's Code of conduct provides as follows:
'A legal practitioner who h~s accepted a brief from a liquidator or from a trustee of an insolvent
estate shall not at any time accept a brief to act in any capacity for any interested party in
estate shall not at any time accept a brief to act in any capacity for any interested party in
subsequent proce~dings in the liquidatipn ~r insolvency'.
Subsequent to the issue of a conflict of interest being raised by Mr Visser, Mr Otto, on 17
June 2025 indicated that no such conflict of interest exists and should a conflict of interest
arise going forward, he will reco~sider his position. Mr Otto confirmed that the current
instructions are limited to the issue relating to the sale of the immovable assets and . . . .
nothing else .. Attorneys and th~ir counsel are subject to ethical rules and professional
. . .
conduct guidelines_ that explicitly address conflict of interest for them to identify and
manage conflicts. lt_is clear from the contents of the numerous emails that Mr Otto was
25
made aware of a possible conflict of interest in ::3Cting on behalf of the trustees/liquidators
and that he engaged with Mr Visser in this regard.
[50] In Kellerman v Legal Practice Council Western Cape and Others16 the court held
that the clause is not a blanket prohibition on a legal practitioner accepting a second or
further brief from a liquidator or insolvency trustee. Instead, it is a prohibition that
regulates the acceptance of a further brief that is one in subsequent proceedings, giving
rise to a conflict of interest. There is no prohibition against a legal practitioner accepting
a second or further brief from the liquidator or trustee or any interested party in other
proceedings, because the practitioner then acts for and is paid by a different client (the
liquidator or trustee). A conflict of interest is a situation in which a person has competing
interests or loyalties that could compromise their ability to act impartially or in the best
interest of their clients. Legal practitioners have a fiduciary duty to act in the best interest
of their clients and to avoid any conflict that could compromise their ability to do so. Due
to role as legal advisor, a conflict of interest may readily arise when acting on behalf of
liquidators or trustees. Mr Otto was not instructed by the trustees/liquidators to act on
their behalf relating to the action instituted in the Gauteng Division of the High Court
against Standard Bank. I agree with the contention by the trl!stees/liquidators that the
only instance at this stage where Mr Otto may have a conflict of interest is if he acts for
Standard Bank against the trustees or for the trustees against Standard Bank.
[51) On behalf of the trustees/liquidators it is furthermore argued that the first applicant
as insolvent himself failed to furnish the trustees/liquidators with a statement of affairs or
a CM100 in the case of a close corporation, failed to attend meetings of creditors
a CM100 in the case of a close corporation, failed to attend meetings of creditors
(notwithstanding proper advertisement in the Government Gazette) and failed to give
his/their co-operation in any way whatsoever regarding the administration of the estates.
After the sequestration of his/her estate it is the duty of the insolvent to keep the trustee
informed of his/her address for delivery of notices if necessary. The insolvent must, under
pain of punishment in criminal proceedings, within seven days of service of the final order
of sequestration lodge with the Master a statement of affairs as at the date of the
16 Kellerman v Legal Practice Council Western Cape and Others [2024] ZAWCHC 81.
26
sequestration order.17 As in the matt(;, at hand, when the insolvent is married in
community of property it is incumbent upon both spouses to file such a statement.16
[52) The insolvent should ascertain from an inspection from the Government Gazette
or from inquiry at the Master's office the respective dates on which the first and second
meeting of creditors in his/her estate will be ·held. The first applicant and his wife are
bound to attend such meetings and any and every adjournment thereof, unless he/she
has previously obtained written permission from the presiding officer thereat to absent
himself/herself.19 If the insolvent fails to attend a meeting when legally obliged to do so,
the presiding magistrate/officer may grant a warrant authorising his/her arrest and bring
the insolvent before such presiding officer, who may commit him/her to prison until the
next meeting of creditors. Within 14 days of the trustee's appointment the insolvent should
inform the latter of the existence and whereabouts of any assets not under his/her control
which are not fully disclosed in the statement of affairs and which are not already in the
trustees' possession, as well as of the existence or whereabouts of any book or
document, paper or writing not already jn the trustee's possession.
[53) Appended to the answering affidavit is a letter dispatched per email by the second
respondent (dated 1 October 2024) addressed to the first applicant explaining the
obligation upon the first applicant and his wife to provide the certain information, inter
alia, completed statement of affairs, copies of identity documents and information
pertaining to their assets, list of creditors, and other information (set out in the letter) to
the .second respondent within a period of seven days. The first applicant and his wife were
advised as to the procedures to be followed with regards to the insolvency ' . . . and what
they should do or not do.' Notwithstanding the meticulous way in which the provisions of
they should do or not do.' Notwithstanding the meticulous way in which the provisions of
the Insolvency Act and procedures were explained to the first applicant, the first applicant
did not comply with the requirements.
[54) During argument Mr Naude SC initially argued that the Master has clearly indicated
in his first report that he intends proceeding with a s 152 enquiry. However, when asked
why he interprets the contents of the first report by the Master as being indicative that
17 Section 16(2) of the Insolvency Act.
18 Greub v The Master 1999 (1) SA 746 (C).
19 Section 64(1) of the Insolvency Act 24 of 1936.
27
such an enquiry will certainly follow, he responded that the failure of the Master to commit
to the requested enquiry has caused some frustration on the part of the applicants' legal
representatives. Notwithstanding numerous enquiries by Mr Visser as to specific date$
for the said enquiry, no response from Master has been forthcoming. In this regard I agree
with the contention by Mr Zietsman SC that the mere reference as to the purpose of a s
152 enquiry, as quoted from the Master's first report, cannot be understood or construed
as a clear indication that the Master had definitely decided that such a process will be
embarked upon. In any event, the Master has the prerogative to proceed with a s 152
enquiry whenever such a need exists.
[55] Having been informed of the numerous ·and extensive complaints raised by the
applicants during June/July 2025 regarding the alleged misconduct and
maladministration by the trustees/liquidators, the Master requested an opportunity until
the 1st of August 2025 to investigate the sale of the properties and indicated that the
transfer of the properties should not be registered prior to the said date. Up until the
hearing of this matter on the 23rd . of October 2025, no enquiry by the Master has
commenced as yet. I am of the view that if the Master decided to commence with such
investigation and enquiry, it would have been clear from either the first or the second
report filed by the Master or the court would had have been advised by counsel that such
an enquiry has been embarked upon. This does not mean that such an enquiry may still
follow, even subsequent to the delivery of this judgment.
[56] Regarding the contention by the trustees/liquidators that the first applicant does
not have locus standi to bring the application, the first applicant only has locus standi
insofar as his own insolvent estate is concerned with reference to his reversionary right
thereto. The first applicant does not have a reversionary interest in the estate of D C
thereto. The first applicant does not have a reversionary interest in the estate of D C
Maree Trust, nor does he have a reversionary right in the estate of Goldensands Trading
31 CC (in liquidation). As far as the last two estates are concerned, what reversionary
interest the first applicant has in those two estates, falls within his and his wife's personal
insolvent estates. Thus, in the hands of the trustees of his personal insolvent estate. The
first applicant's wife has not been cited as an applicant. In light of the order made, I do
not deem it necessary to go into detail about the lack of locus standi of the first applicant,
the second applicant and the failure to cite the first applicant's wife and the remaining
trustee as applicants in this application.
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[57] A further aspect raised on behalf of the trustees/liquidators is the filing of further
affidavits by the applicants in contravention of the court order dated 4 September 2025,
in terms whereof the parties were afforded ieave to supplement their papers and to
respond to the second report of the Master. Where an affidavit is tendered in motion
proceedings both late and out of its ordinary sequence, the party tendering it is seeking,
not a right, but an indulgence from the court. The applicants did not apply for leave to file
further affidavits anp did not advance any explanation why, having regard to the
circumstances of the matter, same nevertheless be received by the court. It is in the
interest of administration of justice that the well-established rules regarding the number
of sets and proper sequence of affidavits in motion proceedings and, as in.this matter, as
provided for by the court, be observed.20 Therefore the further affidavits filed by the
applicants are regarded as pro non scripto.
[58] As to the degree of proof required in an application for an interim interdict, the
applicant's right need r:iot be shown by a balance of probabilities. It is sufficient if such
right is prima facie . established, though open . tq some doubt. The proper manner of
approach, as set out in Goo/ v Minister of Justic$ and Another,21 is to take the facts as set
out by the applicant together with any facts set out by the respondent, which the applicant
cannot dispute, and to consider whether, having regard to the inherent probabilities, the
applicant should (not could) on those facts obtain final relief at a trial. The facts set up in
contradiction by the respondent should _then be considered, and if serious doubt is thrown
upon the case of the applicant, he could not succeed. In exercising its discretion, a court
weighs, inter alia, the prejudice to the applicant if the interdict is withheld against the
prejudice to the respondent if it is granted (the balance of convenience). Having
prejudice to the respondent if it is granted (the balance of convenience). Having
considered the contents of the-affidavits as a whole and the applicable considerations, I
conclude that the applicants have not illustrated any legal right to any of the relief sought
in the notice of motion, or for that matter,-in the draft order: It follows that the application
must fail. There is no reason to deviate from the normal principle that costs follow the
result.
20 James Brown & Harne,· (Ply) Ltd v Sim.mons N. 0. 1963 (4) SA (AD) at 660D-H .
21 Goo/ v Minister of Justice and Another 1955 (2) SA 682 (CPD) at 688D-E.
.29
[59) In the result the following order is issued:
1 The application is dismissed.
2 The applicants shall pay the costs of the application, jointly and severally, such
costs to include the costs of counsel on scale C.
I VAN RHYN
JUDGE OF THE HIGH COURT
Appearances
For the applicants:
Instructed by:
For the first respondent
For the second to seventh respondents:
For the eight to tenth respondents :
Instructed by:
G Naude SC
!·~ Muller
Visser Attorneys
Bloemfontein
No appearance
P Zietsman SC
No appearance
Phatshoane Henney Attorneys
Bloemfontein
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