About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: South Gauteng High Court, Johannesburg
SAFLII
>>
Databases
>>
South Africa: South Gauteng High Court, Johannesburg
>>
2026
>>
[2026] ZAGPJHC 76
|
|
Farber and Another v Van Den Heever N.O. and Others (2025/076862) [2026] ZAGPJHC 76 (2 February 2026)
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, JOHANNESBURG
Case
Number:2025-076862
(1)
REPORTABLE:NO
(2)
OF INTEREST TO OTHER JUDGES:NO
(3)
REVISED:NO
In
the matter between:
MARK
MORRIS FARBER
1
st
Applicant
HCI
INNER CITY PROPERTIES (PTY) LTD
2
nd
Applicant
and
THEODOR
WILHELM VAN DEN HEEVER N.O.
1
st
Respondent
THE
TRUSTEES OF THE INSOLVENT ESTATE OF MARK
FARBER
2
nd
Respondent
THE
MASTER OF THE HIGH COURT OF SOUTH AFRICA
3
rd
Respondent
10
FIFE AVE BEREA (PTY) LTD
(reg
No: 2013/086974/07)
4
th
Respondent
D&T
TRUST (PTY) LTD LIQUIDATORS AND TRUSTEES
(Reg
No: 79/03034/07)
5
th
Respondent
TAKE
SHAPE PROPERTY MANAGEMENT (PTY) LTD
6
th
Respondent
JUDGMENT
BOTHMA,
AJ
1.
The first applicant is Mr Mark Morris Farber. Mr Farber is an
unrehabilitated insolvent who was finally sequestered
on 14 January
2025. Mr Farber was previously a director of the second
applicant and he currently describes himself as being
the second
applicant’s general manager.
2.
The second respondent is a property management company and manages
the collection of rentals, management of staff, building
maintenance
and resident relations of Malvin Court.
3.
The first and second respondents are the trustees of Mr Farber’s
insolvent estate. The Master is joined as
the third respondent
in this matter. 10 Fife Avenue Berea (Pty) Limited is joined as the
fourth respondent and D&T Trust (Pty)
Limited Liquidators &
Trustees are joined as the fifth respondent.
4.
The applicants, in broad terms, seek the removal of the first
respondent as the provisional trustee of Mr Farber’s
estate, a
mandament van spolie combined with an interdict and certain further
relief in terms of the
Protection of Personal Information Act 4 of
2013
.
5.
The first issue that needs to be decided is whether the second
applicant is properly before the court. The respondents
submit
that the second applicant is not properly before the court and that
Mr Farber has no standing to bring the application on
its behalf.
6.
Before the sequestration of Mr Farber’s estate on the 15
th
of January 2025, he was the sole director of the second applicant.
Mr Farber’s spouse was the sole shareholder. As
a fact, the
first respondent is now the director of the second respondent and the
records of the Companies & Intellectual Property
Commission
(CIPC) reflect this.
7.
Mr Farber complains that within hours after the final sequestration
order was granted against him on 15 January 2025, the
first
respondent lodged a COR39, notice of change of directors’ form,
with the CIPC removing him as a director of the fourth
respondent.
Thereafter, the first respondent, in his capacity as trustee of Mr
Farber’s insolvent estate, appointed
himself as director of the
second respondent. Mr Farber alleges that this is without any
authorisation either from the shareholders
of second applicant or the
court.
8.
In terms of section 69(8) of the Companies Act, 71 0f 2008 (“the
Companies Act”) a person is disqualified to
be a director of a
company if that person is an unrehabilitated insolvent.
9.
Upon Mr Farber’s insolvency, and upon the appointment of the
first respondent, all the property of Mr Farber’s
wife as if it
were the property of Mr Farber’s sequestrated estate, vests in
the trustees of the insolvent estate in accordance
with
section 21
of
the
Insolvency Act 24 of 1936
.
10.
As stated above, Mr Farber’s wife held all the shareholding in
the second applicant. Accordingly, the shareholding
in the
second applicant vested in the first respondent by operation of law
when Mr Farber was sequestrated. Mrs Farber accordingly
cannot
have any voting rights and cannot vote on the appointment of a
director.
11.
Mrs Farber purported to pass a resolution to remove the first
respondent as a director of HCI. Mrs Farber, not being
a
shareholder, is not in a position to pass any resolutions and the
proposed resolution is in fact a nullity.
12.
Mr Farber does not have the authority to have launched this
application on behalf of the second applicant. The application,
as far as the second applicant is concerned, is not authorised and
the second applicant is accordingly not before court.
I will
approach the matter on that basis and will now deal with the case
made out by Mr Farber.
REMOVAL
OF THE FIRST RESPONDENT AS A TRUSTEE OF MR FARBER’S INSOLVENT
ESTATE
13.
For purposes of this application and as far as it is necessary, I
grant Mr Farber leave to bring this application for
the removal of
the first respondent. I also accept that he has
locus standi
to do so.
14.
Mr Farber makes allegations of unlawful and improper conduct on the
side of the first respondent. He alleges that
the first
respondent’s conduct has been unlawful and continues to be so.
As examples of the alleged unlawfulness, Mr
Farber alleges that the
first respondent acted in an unlawful manner when he appointed
himself as a director of the fourth respondent
and he appointed
himself without any shareholder’s resolution, any board of
directors’ resolution and/or any court
order.
15.
Mr Farber further alleges that the first respondent violated the
provisions of sections 71 and 76 of the Companies Act
which requires;
16.1
due process, proper notice and an opportunity for representations;
16.2
section 22(1)
of the
Insolvency Act 24 of 1936
which requires a
trustee to be empowered by law or a court order in order to have
authority over corporate directorships;
16.3
section 13 of the Electronic Communications & Transactions
Act;
16.4
the Cyber Crimes Act 19 of 2020; and
16.5
the
Protection of Personal Information Act 4 of 2013
.
17
Mr Farber also alleges that the first respondent failed to
recognise that a trustee does not automatically get appointed
as a
director as a company by virtue of his/her position as a trustee.
Mr Farber alleges that the first respondent needed
to be appointed by
the shareholders and/or the board of directors in accordance with the
Company’s Memorandum of Incorporation.
18
Mr Farber has placed these complaints on record and on 7 May
2025 he reported the alleged unlawful conduct of the first
respondent
to the CIPC and to the Master of this court.
19
The application has been brought in terms of
section 60
of the
Insolvency Act 24 of 1936
. In argument I specifically asked counsel
for the applicants on what section she relies and she very
specifically stated that Mr
Farber relies on
section 60
of the
Insolvency Act. Section
60 of the
Insolvency Act, which
deals
with the removal of a trustee by the Master, makes provision therefor
that the Master may remove a trustee from his office
on certain
specified grounds.
Section 60
cannot find application in this
matter as Mr Farber has chosen to approach the court and not the
Master. Despite this, I
will deal with the matter based upon
the court’s inherent jurisdiction to remove a trustee in an
insolvent estate.
20
Mr Farber has also filed a supplementary affidavit in which he
makes further allegations as to the alleged misconduct
of the first
respondent. I have read the affidavit and for purposes of this
application take cognisance of the contents thereof.
The new
facts that Mr Farber relies on are dealt with in the affidavit and
fall under the headings of the Voluntary Liquidation
of Companies,
Disposal of Properties and Gross Undervalue, Unlawful Sale of
Property in Contravention of the
Insolvency Act, Request
for Legal
Representation, the Trustee’s Conduct and Impact on the Estate
and the Unlawful Liquidation of 39 Van der Merwe
Street Hillbrow CC
and 47 Soper Road Berea CC. I will briefly deal with each of
these grounds.
21
Firstly, Mr Farber alleges that the first respondent placed
the fourth respondent, 39 Van der Merwe Street Hillbrow CC
and 47
Soper Road Berea CC under voluntary liquidation without lawful
authority. This issue is dealt with in an answering
affidavit
by the first respondent countering that the fourth respondent was not
viable, sustainable or generating any significant
income. No income
whatsoever was received by the fourth respondent and the company was
hopelessly insolvent. The first respondent
explanation appears
reasonable and logical and the first applicants’ complaint does
not appear to be justified. These are
complaints which should been
dealt with in the context of the different entities themselves and
not in the context of Mr, Farber’s
insolvent estate.
22
The second point is Disposal of Properties at Gross
Undervalue. Mr Farber alleges that the first respondent has
permitted the sale of properties owned by juristic entities which Mr
Farber’s estate holds at drastically undervalued amounts.
The first respondent denies that he played any role in the sale of
these properties and further states that he had no power to
prevent
the sale in execution of these properties. A company called
TUHF obtained judgments against juristic entities who
owned the
properties referred to which were then sold in execution pursuant to
valid judgments. The first respondent’s explanation
appears to
be plausible and reasonable and the conduct does warrant any censure.
23
The third issue dealt with is the alleged Unlawful Sale of
Property and Contravention of the
Insolvency Act. What
Mr
Farber argues in this regard is that he and his wife have not been
properly served with the final order of sequestration and
that
therefore the sale of the properties without Mr Farber and his wife’s
consent is a violation of the Constitution and
the
Insolvency Act.
The
first respondent deals with this issue by stating that not a
single one of the properties referred to belong to the insolvent or
fall within Mr. Farber’s estate. The first respondent provides
proof that both the provisional as well as the final order
were
served upon the first applicant.
24
The third issue relates to the Request for Legal
Representation where Mr Farber alleges that when attorneys have
approached
the first respondent seeking his cooperation to represent
in matters against him, he has refused. Mr Farber alleges that
this refusal is unfair. The first respondent denies the allegations
and further states that the matters referred to are not matters
against Mr. Farber.
25
Mr Farber then further alleges that there is conduct on the
part of the first respondent which has materially contributed
to the
mismanagement and dissipation of assets of his insolvent estate. The
first respondent denies the allegations and states
that none of the
complaints relate to properties in the insolvent estate.
26
Lastly, Mr Farber alleges that the first respondent unlawfully
liquidated 39 Van der Merwe Hillbrow CC and 47 Soper Road
Berea CC.
It is alleged that the first respondent’s actions are governed
by the doctrine of
lis pendens
and that his conduct is
consistent with his broader pattern of mismanagement, unilateral
decision making and facilitating creditor
advantage at the expense of
Mr. Farber. These allegations are denied by the first respondent.
27
I have considered all the allegations contained in both the
founding affidavit and the supplementary affidavit. In my
view the
conduct of the first respondent seems to be consistent with that of a
reasonable and prudent trustee or liquidator.
The first
respondent is seeking out assets in Mr Farber’s estate and
liquidating them. The first respondent is under
an obligation
to do so and to act in the best interests of all the creditors of Mr.
Farber’s insolvent estate. There is nothing
improper or
unlawful in any of his actions and I see no merit in any of the
complaints.
28
In considering whether to remove a trustee or a liquidator, it
is of cardinal importance that the court must be satisfied
that the
removal of the liquidator or trustee is to the general advantage of
all persons concerned, see
MA-Afrika Groepbelange (Pty) Ltd &
another v Millman & Powell NNO & another
1997 (1) SA 547
(C). I am not satisfied in this matter that it is to the
general advantage and benefit of all persons that the first
respondent
be removed as trustee in the insolvent estate of Mr
Farber. To the contrary, it appears to me that such a removal will be
prejudicial
to the finalisation of the insolvent estate.
29
The general position is that the court does not lightly remove
a liquidator or trustee and will only do so by having due
regard,
among other considerations, to the impact of the removal on the
trustee’s professional standing and reputation.
The court
must be satisfied that a proper and clear case is made out for the
removal of the trustee, see
Hudson & Others NNO v Wilkins NO &
others
2003 (6) SA 234
(T). Applying these principles, I do
not believe that any of these factors have been shown. In my
view, no case is
made out for the removal of the first respondent as
trustee of Mr Farber’s estate.
30
The prayers dealing with the Protection of Personal
Information Act, 3 of 2023 were not persisted with before me and I
make no order in this regard.
31
As far as the spoliation application is concerned, such an
application was brought by the second applicant and as I have
already
found, the second applicant is not properly before court.
32
I accordingly make the following order:
32.1 The
application is dismissed;
32.2 the
applicants are ordered to pay the respondents’ costs on scale
C.
H
C BOTHMA
ACTING
JUDGE OF THE HIGH COURT
Matter
heard on 10 September 2025
Judgment
given on 2 February 2026
COUNSEL
FOR THE APPLICANTS:
K
PAMA-SHINU
COUNSEL
FOR THE RESPONDENTS:
P VAN
DER BERGH SC