1
REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, JOHANNESBURG
CASE NUMBER:2022/039556
In the matter between:
BODY CORPORATE OF CHARLEMAGNE APPLICANT
And
LEE- ANNE PATRICIA DRYSDALE RESPONDENT
Heard: 28 October 2025
Delivered: 4 February 2026
Headnote: Insolvency law –provisional sequestration – non-compliance with stat utory
requirements – abuse of process – application dismissed
(1) REPORTABLE: YES / NO
(2) OF INTEREST TO OTHER JUDGES: YES / NO
(3) REVISED: YES / NO
4 February 2026 __________________________
DATE SIGNATURE
2
JUDGMENT
WINDELL J:
Introduction
[1] The applicant, the Body Corporate of Charlemagne, approaches this court
seeking the sequestration of the respondent’s estate in terms of sections 8, 9 and 12 of
the Insolvency Act 24 of 1936 (“the Act”). Although the notice of motion is framed as one
seeking a provisional order, the applicant’s founding papers and heads of argument make
it plain that final sequestration is sought.
[2] That approach is misconceived. The Act provides for a two -stage process. First,
the court may grant a provisional sequestration order together with a rule nisi calling upon
the respondent and other interested parties to show cause on a return date why a final
order should not be made. Second, only on the return date, and if the jurisdictional
requirements are then shown to be satisfied, may a final sequestration order be granted.
Final sequestration cannot be granted at first instance without the intervening provisional
stage.
[3] The mischaracterisation of the relief sought is not merely a matter of form. It
reflects a failure to appreciate the statutory scheme and the safeguards built into the Act
for debtors, creditors, employees and other affected parties. Sequestration orders h ave
far-reaching consequences: upon the grant of such an order, a debtor is divested of his
or her estate, which vests in the Master until a trustee is appointed and thereafter in the
3
trustee. The application must therefore be assessed strictly against the requirements for
a provisional sequestration order, failing which it cannot succeed.1
Condonation
[4] The application was launched in October 2022. Both parties delivered affidavits
outside the time periods prescribed by Rule 6(5). The delays are comparable, both parties
seek the indulgence of the court, and no material prejudice has been demonstrated.
Applying the interests -of-justice approach articu lated in Grootboom v National
Prosecuting Authority,2 it is appropriate to admit all the affidavits and determine the matter
on its merits.
Background
[5] The respondent is the registered owner of a unit (“the immovable property”) within
the applicant’s sectional title scheme. It is common cause that she has failed to pay levies
and related charges for several years. The respondent does not contend that levies are,
in principle, not payable. Her explanation for non-payment, as set out in the pleadings, is
that a dispute between the parties regarding the levies has persisted since at least 2011,
when the matter was referred to arbitration. The arbitration award obliged the respondent
to pay levies, but expressly contemplated that the precise amount payable could only be
determined once the applicant furnished the arbitrator with an accepted budget and
audited financial statements so as to e nable a proper debatement and recalculation of
the account. The respondent’s case is that the applicant failed to comply with these
1 Rent a Tank JHB (Pty) Ltd v FuelGiants (Pty) Ltd and several other matters . Case no:2025 -012156.
Gauteng Division Johannesburg. Delivered on 19 May 2025 by Gilbert AJ.
2 2014 (2) SA 68 (CC).
4
requirements and continued to levy charges without implementing the award. On that
basis, she withheld payment, making only limited payments totalling R53 068.90 over a
period exceeding five years, while disputing the correctness and escalation of the
amounts claimed.
[6] The applicant has pursued various enforcement measures. In 2016, the applicant
sued the respondent for arrear levies and related charges.3 On 17 June 2017 the parties
concluded a written settlement agreement, made an order of court, in terms of which the
respondent acknowledged indebtedness to the applicant in the amount of R379 084.24
and undertook to pay that amount from the net proceeds of the sale of her immovable
property. The respondent breached that agreement.
[7] Two attempts were made to execute against the respondent’s movable property
without success. On 1 November 2019 the applicant obtained judgment against the
respondent in terms of Rule 46A of the Uniform Rules of Court and the immovable
property was declared executable and a warrant of execution was authorised. A reserve
price of R1 900 000.00 was fixed in respect of the property . At the time it was recorded
by the court that the respondent owed the applicant an amount of R565 799.26. At that
time, the court recorded that the respondent was indebted to the applicant in the amount
of R565 799.26. Notwithstanding that order, the property has not been sold in execution
and the applicant has received no payment.
3 Case No: 2016/30340
5
The nature of the relief sought
[8] The statutory requirements set out in the Act must be strictly complied with before
an application for sequestration of a person’s estate can be considered. Section 9
prescribes peremptory formal and substantive requirements for the bringing of a
sequestration application. These include, inter alia, the disclosure of the debtor’s marital
status and the full particulars of any spouse; service of the application on the Master,
SARS, and, where applicable, the debtor’s employees and any registered trade unions;
and the furnishing of a valid and timeous certificate by the Master confirming that
adequate security has been lodged. In addition, section 9(4A)(b), requires the filing of an
affidavit by the person who effected service, setting out the manner in which compliance
with the service requirements was achieved.
[9] The applicant has failed to demonstrate compliance with these requirements. The
papers do not disclose whether the respondent is married or identify any spouse. There
is no indication whether the respondent employs a domestic worker or any other
employee,4 nor is there proof of service on SARS and the Master as contemplated in
section 9(4) and 9(4A) of the Act. No affidavit has been filed setting out the manner in
which compliance with the service requirements was effected, as required by section
9(4A)(b).
[10] Compliance with section 9 is not a matter of form. These requirements serve
important protective and informational functions and must be strictly observed. The
4 In Stratford and others v Investec Bank Ltd and Others 2015 (3) SA 1 (CC) para 37 the Constitutional
Court found that employees for purposes of section 9(4A) includes domestic employees. See also Rent a
Tank JHB (Pty) Ltd v FuelGiants (Pty) Ltd and several other matters para [78] supra.
6
absence of proof of compliance is, in itself, sufficient to preclude the granting of a
sequestration order.5
Advantage to creditors
[11] Even if statutory compliance were assumed in the applicant’s favour, the
application falls short on the requirement of advantage to creditors. Section 10 (c) of the
Act requires the court to be satisfied that there is reason to believe that sequestration will
be to the advantage of creditors. This is a jurisdictional prerequisite.
[12] On the applicant’s own version, its claim amounts to R1 453 567.35. The value of
the respondent’s immovable property is estimated at between R1 900 000 and R2 500
000. The papers, however, are silent on whether the property is bonded, the amount
outstanding to any bondholder, or the ranking of secured claims. In the absence of this
information, the court is unable to determine whether any proceeds would remain after
the satisfaction of secured debts and the costs of realisation and administration so as to
yield a dividend to concurrent creditors.
[13] A further difficulty arises from the passage of time. The application was launched
in 2022 but was only prosecuted some three years later, in 2025. No explanation is
furnished for this delay, nor has the applicant placed updated information before the court
regarding the respondent’s current financial position, the status of the immovable
property, or the position of any secured or concurrent creditors at the time the matter was
5 See Rent a Tank JHB (Pty) Ltd v FuelGiants (Pty) Ltd and several other matters supra.
7
argued. In the absence of such contemporaneous evidence, the court is unable to assess
whether sequestration would presently serve the collective interests of creditors.
[14] The applicant has not identified any other creditors who would benefit from
sequestration, nor has it demonstrated that the general body of creditors would receive a
dividend. On the applicant’s own showing, it is equally plausible that sequestration would
yield no benefit beyond advancing the applicant’s individual recovery. That does not
satisfy the statutory requirement.
Abuse of process
[15] The context in which the application is brought gives rise to a further difficulty. The
applicant already holds two court orders against the respondent: the 2017 settlement
agreement made an order of court, and the 2019 judgment declaring the property
specially executable. Those orders afford the applicant clear and established execution
remedies.
[16] Sequestration proceedings are not designed to serve as an alternative or
supplementary debt-collection mechanism where execution remains available.6 They are
instituted not for the purpose of enforcing payment of a debt, but to set in motion the
statutory machinery for the declaration of insolvency in the interests of creditors as a
whole. As explained in Naidoo v Absa Bank Ltd 7 a sequestration order affects not only
the rights of the immediate litigants, but also those of third parties: it brings about the
6 Investec Bank Ltd v Mutemeri and Another 2010 (1) SA 265 (GSJ) at 274-275; Collier v Priest 1931 AD
290 at 299.
7 2010 (4) SA 597 (SCA) para 4.
8
distribution of the debtor’s estate among creditors, restricts their ordinary remedies, and
imposes significant disabilities on the insolvent. It is therefore not akin to an ordinary
judgment entitling a creditor to execute against a debtor.
[17] In circumstances where the applicant has not demonstrated that those remedies
are ineffective or exhausted, and where no advantage to creditors has been shown, the
inference that sequestration is being invoked primarily to enforce payment of a debt
cannot be excluded.
[18] Viewed cumulatively, the applicant’s failure to comply with the peremptory
requirements of section 9 of the Act, to establish as required by section 10(c) that
sequestration would serve the collective interests of creditors, and the availability of
existing execution remedies compel the conclusion that the application constitutes an
abuse of the process of court and that no basis exists upon which even a provisional
sequestration order could be granted.
[19] In the result the following order is made:
1. Application is dismissed with costs.
_______________________________
L WINDELL
JUDGE OF THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, JOHANNESBURG
9
Delivered: This judg ment was prepared and authored by the Judge whose name is
reflected and is handed down electronically by circulation to the Parties/their legal
representatives by email and by uploading it to the electronic file of this matter on
CaseLines. The date for hand down is deemed to be 4 February 2026.
Appearances
For the applicant: IT Allis
Instructed by: Allis Attorneys.
For the respondent: BSW Marais
Instructed by: Oosthuizen Caine INC.
Date of Hearing: 28 October 2025
Date of Judgment: 4 February 2026