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REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG LOCAL DIVISION, JOHANNESBURG
Case Number: 2023/046741
In the matter between:
In the matter between:
ATLANTA SUGAR SA (PTY) LTD Applicant
and
SIYABONGA(SIYABULELA) PRINCE NTUTELA Respondent
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JUDGMENT
WANLESS J
Introduction
(1) REPORTABLE: NO
(2) OF INTEREST TO OTHER JUDGES: NO
(3) REVISED: YES
11 February 2026 _________________________
DATE SIGNATURE
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[1] This is an application by Atlanta Sugar (Pty) Limited (“the Applicant”) in
terms of section 12 of the Insolvency Act 24 of 1936 (“the Act”) for an
order placing the estate of Siyabonga (Siyabulela) Prince Ntutela (“the
Respondent”) under final sequestration. The Applicant obtained a
provisional sequestration order on 10 October 2023. A rule nisi was
issued by this Court on that date, placing the Respondent's estate under
provisional sequestration. Since 10 October 2023 the said rule nisi has
been extended from time to time. The Respondent opposes the
confirmation of that rule nisi.
Background
[2] On 25 February 2022 , this Court granted summary judgment against the
Respondent, as surety and co- principal debtor for Zande Africa (Pty) Ltd
(”the principal debtor”) , in the amount of R 439 530.00 (“the capital
sum”)together with interest and costs (“the judgment debt”). Subsequent
attempts by the Sheriff to execute writs against the Respondent’s movable
property at his residential and business addresses were unsuccessful.
The facts
[3] The following facts are either common cause or cannot be seriously
disputed by the parties, namely:
3.1 The judgment debt remains extant and has not been settled in full.
3.2 Pursuant to the issuing of a writ of execution the Sheriff attempted to
execute at the Respondent’s gated residence on 30 July, 6 August and 13
August 2022. On each occasion, access -control personnel, acting on the
Respondent’s instructions, refused the Sheriff entry.
3.3 A second writ was issued and the Sheriff attempted execution at the
Respondent’s business premises (“The Bakery”), in Waltloo on 4, 7 and 9
November 2022 and again on 2 December 2022. On 7 November 2022,
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employees of the aforesaid business were present but the Respondent was
allegedly absent. On 9 November and 2 December 2022, the said premises
were locked, with a notice on the latter date stating that the business was
closed for “restructuring”.
3.4 On 9 November 2022, the same day as the Sheriff’s third attempt to
execute the writ at these business premises, the Respondent resigned as a
director of the operating company and a 20 -year-old proxy was appointed as
sole director.
3.5 Between May 2024 and May 2025 the Respondent made ten (10) irregular
payments totalling R 140 000.00 towards the judgment debt.
3.6 As at 22 June 2025 the outstanding balance of the judgment debt, inclusive
of interest, amounted to approximately R 550 047.05. The payments made by
the Respondent have been absorbed by accruing interest and the capital sum
remains the same.
Issues
[4] The issues for determination, as per the requirements of section 12 of the
Act, are whether:
4.1 the Applicant has established a liquidated claim against the Respondent for
not less than R100.00 (subsection 9(1) read with subsection 12(1)(a) of the
Act);
4.2 the Respondent has committed an act of insolvency or is insolvent
(subsection 12(1)(b) of the Act); and
4.3 there is reason to believe that it will be to the advantage of the
Respondent’s creditors if his estate is finally sequestrated (subsection 12(1)(c)
of the Act).
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The Law
[5] As held in the matter of Courier -IT SA (Pty) Ltd v Van Staden & Another 1
a judgment debt constitutes a liquidated claim for the purposes of
subsection 9(1) of the Act.
[6] With regard to acts of insolvency in terms of section 8 of the Act, a debtor
commits an act of insolvency by departing from his dwelling or absenting
himself with intent to evade or delay payment. Deliberate conduct
preventing the Sheriff from gaining entry to execute a writ of attachment,
constitutes such an act .2 An act of insolvency is committed if a debtor
removes or attempts to remove property with the intent to prejudice
creditors.3 In the opinion of this Court, a concerted effort to place assets
beyond the reach of creditors, such as through resignation from a
company and closure of a business contemporaneous with execution
attempts, falls within this provision.
[7] With regard to “ advantage to creditors ”
4 the court need not be satisfied
that there will be an advantage, only that there is reason to believe there
will be . This belief must be rational and based on sufficient facts .5 The
advantage need not be immediate financial benefit; it is sufficient if the
investigation and enquiry under the Act might unearth assets for
creditors.
6 The principle as set out in Ex parte Anthony en 'n Ander 7 that
the advantage must be real and practical , does not require certainty of a
dividend but rather a reasonable prospect based on the evidence.
[8] Whilst it is correct that a court has a discretion in terms of section 12 of
the Act , this discretion must be exercised judicially. Sporadic payments
1 [2022] ZAGPJHC 94 at paragraphs [49] to [53].
2 AR v HR, GJ Case No. 3565/2018, (17 Sept 2019).
3 Subsection 8(d) of the Act.
4 Subsection 12(1)(c) of the Act.
5 Firstrand Bank Ltd v Nel (022940/2022) [2025] ZAGPJHC 617
6 Meskin & Co v Friedman 1948 (2) SA 555 (W).
7 2000 (4) SA 116 (C).
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towards a rapidly accruing debt do not, without more, negate the statutory
requirements or the need for a formal sequestration where acts of
insolvency are present and assets may be concealed.
8 Sequestration is
not a punitive measure but a collective remedy for creditors.9
The Applicant’s case
[9] In very broad summary the Applicant submits that:
9.1 It holds an established liquidated claim in excess of R 100.00. based on the
judgment debt.
9.2 The Respondent has committed acts of insolvency by instructing estat e
security to refuse the Sheriff entry and by resigning as director , together with
orchestrating the closure of his bakery to frustrate execution and remove assets
from creditors' reach.
9.3 There is reason to believe sequestration will be to the advantage of
creditors. The Respondent is a director of multiple active companies and The
Bakery ha s significant assets. Unexplained financial flows and the use of
undisclosed bank accounts suggest hidden assets which a trustee, armed with
powers under the Act, would be best placed to investigate and realise.
The Respondent’s case
[10] The Respondent opposes the final sequestration of his estate on the
grounds that:
10.1 He has made substantial payments (R 140 000.00) demonstrating good
faith and a willingness to pay.
10.2 Sequestration would yield no dividend as he has no attachable assets .
The Bakery has failed and its equipment was surrendered to the landlord.
8 Investec Bank Ltd v Mutemeri 2010 (1) SA 265 (GSJ) distinguished on facts
9 Meskin at footnote 6 ibid.
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10.3 The debt arose during the C ovid-19 pandemic and sequestration would
cripple his recent economic recovery.
10.4 He did not obstruct the Sheriff and the changes at The Bakery were due to
commercial failure, not an intent to prejudice creditors.
Discussion
[11] This Court finds the Applicant’s arguments compelling for the following
reasons:
11.1. The judgment debt for R 439 530.00, plus interest, constitutes an
undisputed liquidated claim well in excess of the statutory threshold.
11.2. Respondent’s explicit instructions to refuse the Sheriff entry at his
residence on three consecutive occasions has to be accepted as a classic
example of evading execution. The pattern of being “absent” during attempted
executions at the business premises , coupled with the aforesaid refusals to
refuse the Sheriff entry to the residential premises , establishes the requisite
intent. Moreover, the timing of the Respondent’s resignation as director on 9
November 2022 (the very day of the Sheriff’s visit) followed swiftly by the
physical closure of the business, reveals a clear pattern. These were not
ordinary commercial events but deliberate steps likely intended to distance the
Respondent from the business and shield its assets from creditors. This
constitutes an attempt to remove property from the reach of creditors.
11.3 With regard to “advantage to creditors ” the Respondent’s assertion of
having no assets is contradicted by the evidence. He is linked to 16 active
companies. A promotional video depicted T he Bakery as a substantial
operation with valuable equipment. There are unexplained deposits and
evidence of financial transactions through undisclosed banking accounts.
These facts and the evidence of possible hidden assets , provide a rational
basis to believe that a trustee’s investigative powers may uncover realisable
value for creditors. This satisfies the standard as set out in Firstrand Bank v
Nel and Meskin. Ex parte Anthony , relied upon by the Respondent , is
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distinguishable from the present matter since in the application before this
Court, there is tangible evidence warranting investigation.
11.4 With regard to the Respondent’s opposition to the relief sought the
payments made, whilst not insignificant, have been irregular and have failed to
prevent the relentless growth of the judgment debt due to interest. They have
not reduced the capital sum. The Respondent’s case is further undermined by
the obstructive conduct towards the Sheriff and the lack of full financial
transparency. Whilst the submissions made by the Respondent in the context
of the Covid – 19 pandemic may give rise to some sympathy and the somewhat
vague references to new business ventures may be cause for some hope, they
do not override the commission of acts of insolvency and the reasonable
prospect of advantage to creditors through the mechanisms of the
sequestration process.
Conclusion
[12] In the premises, this Court is satisfied that the Applicant has met all the
requirements of section 12 of the Act, namely:
12.1 A liquidated claim exceeding R 100.00 has been established.
12.2 The Respondent has committed acts of insolvency as contemplated in
subsections 8(a) and 8(d) of the Act.
12.3 There is reason to believe that sequestration of the Respondent’s estate
will be to the advantage of his creditors.
Costs
[13] The general rule is that costs in sequestration applications should be costs in
the sequestration of the debtor‘s estate. There is no reason for this Court to
depart therefrom.
[14] This Court makes the following order:
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1. The provisional sequestration order granted against the estate of the
Respondent on 10 October 2023 is confirmed and the Respondent’s estate is
placed under final sequestration.
2. The costs of this application shall be costs in the sequestration of the
Respondent’s estate.
___________________________
BC WANLESS
JUDGE OF THE HIGH COURT
JOHANNESBURG
Date of Hearing: 29 July 2025
Date of Judgment: 11 February 2026
Appearances
On behalf of the Applicant: Percy Mokoena (Attorney)
Instructed by: Percy Mokoena Attorneys
Email: percy@ppmattorney.co.za
On behalf of the Respondent: In person
Email: Sibusiso@lusengainc.co.za / talentm@lusnegainc.co.za