IN THE HIGH COURT OF SOUTH AFRICA
(GAUTENG DIVISION, PRETORIA)
( 1) REPORTABLE: ~ / NO
(2) OF INTEREST TO OTHER JUDGES:
~/NO
(3) REVISED: NO
20 February 2026
DATE
Case number: 2025/136970
In the matter between:
JACOBUS PETRUS FOURIE N.O. First Applicant
SAFIYAH EBRAHIM COOK N.O. Second Applicant
and
CHRISTOFFEL HENDRIK ROOTMAN Respondent
JUDGMENT
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GREYLINGAJ
INTRODUCTION
[1] This matter served before me on 4 February 2026, being the return date of a
provisional sequestration order granted against the Respondent. The Applicants seek
confirmation of the rule nisi on an unopposed basis. Sequestration proceedings affect
the civil status of the Respondent and engage matters of public interest. The Court is
accordingly obliged to satisfy itself independently that the jurisdictional
requirements prescribed by sections 9 and 12 of the Insolvency Act, 1936 (the Act)
have been met.
[2] From the outset, the court enquired from counsel for the Applicants whether, on the
papers before me, a "claim" exists for purposes of sections 9(1) and 12(1)(a) of the
Act The alleged indebtedness of the Respondent arose from payments characterised
as impeachable dispositions, which have not yet been set aside by judicial order as
provided for in the Act. The matter stood down and, upon request, counsel provided
the court with heads of argument for which the court is grateful.
[3] The First and Second Applicants are the duly appointed liquidators of Protectour
CC(in liquidation). The Respondent, an adult male and at all material times the sole
member of Protectour CC, is married out of community of property. Protectour CC
was placed into liquidation by the Respondent pursuant to the registration of a
special resolution registered with the Companies and Intellectual Property
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Commission. The Applicants were appointed as liquidators in July 2025 and assumed
control of the affairs of the close corporation.
[ 4] Performing their statutory duties, the Applicants investigated the financial affairs of
Protectour CC, including reference to its banking records. The investigations revealed
that numerous payments were made from the bank account of Protectour CC, over an
extended period preceding liquidation.
[5) The Applicants compiled a schedule of payments allegedly made to, or for the benefit
of the Respondent, totalling R99 018.39. The payments, ex facie the affidavits
submitted, can be summarized as fuel and petrol purchases, groceries and household
consumables, medical and pharmaceutical expenses, restaurant and entertainment
expenses, utilities and municipal services and direct electronic transfers to the
Respondent for, what has been descr ibed as, miscellaneous retail purchases.
[6] The payments were made either directly to the Respondent by the Close Corporation,
or to third parties for his benefit (so the ostensible argument goes). Having identified
objectionable transactions and having formed the view that the underlying causa of
the payments are to be set aside as impeachable disposit ions, the Applicants, in their
capacities as liquidators, demanded payment from the Respondent.
The Respondent acknowledged the receipt of the transfers and payments as alleged by the
Applicants. He stated however that these payments ought not to have been made and
indicated that he lacked the means to repay it On the pleadings before me, the
Respondent has proferred no explanation for the payments he received. He has not
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alleged the existence of a loan agreement, a contractual obligation to repay in terms
thereof nor any other legally enforceable debt or claim.
THE BASIS OF THE APPLICATION
[7] Based on the aforementioned facts the Applicants allege that Protectour CC (in
liquidation) is a creditor of the Respondent in the amount of R99 018.39. I am
constrained by the facts as pleaded and, as such, I have a difficulty to determine
whether the Respondent's alleged liability is founded upon a claim ex contractu, ex
delicto, ex variis causarum figuris (from various types of causes) or, as stated by the
Applicants, that the payments were "voidable preferences and dispositions without
value notwithstanding Protectour CC being factually insolvent, for his own benefit"[sic]
[8] The founding affidavit deposed to by the Applicants does not engage any of the initial
three categories mentioned above as the basis for the Respondent's indebtedness. To
the contrary, the Applicants rely solely upon the construct of the relief catered for as
impeachable dispositions as provided in terms of the Insolvency Act. I find this to be
the only factual basis upon which, according to their testimony, the Applicants allege
to be a creditor of the Respondent. This alleged indebtedness is not specifically
pleaded with reference to any of the relevant sections of the Act but referred to in
general.
An argument was advanced that, if any of the sections find Application, the sought
relief is competent as the amount claimed is liquid and undisputed and therefore falls
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within the ambit of either one of sections 26, 29, 30 or 31 of the Act. That argument
is misplaced insofar as it does not address the Applicants' core issue being that,
insofar as the evidence present ed before me, the Applicants have not satisfied the
Court that they (nomin e officio or otherwise) are a creditor with the requisite locus
standi to brin g the current application ..
[9] I raised with the Applicants' counsel whether, on thei r own pleaded version, the
Applicants' claim, with the view of establishing its locus stand i as a creditor,
constituted a claim or debt absent a court orde r in terms of section 32 of the Act.
[10] The Applicants advanced the argument that it is not necessary to set aside such
dispositions and that a liquidated claim req uires certainty of amount only and, so they
proceed ed to contend, sequestration proceedings are not proc eedi ngs for the
enforcemen t of a debt The Applicants argued that, with the Respondent's admissions,
the deb t has been established and that , accordingly, ther e was no need for them to
furthe r prove their locus stand i qua creditor. The court was referred to autho rity, in
suppor t of the argument referencing the reported matter s of Kleynhans v Van der
Westhuizen NO; 1 Hassan and Others v Berrange N0;2 Investec Bank Ltd v Mutemeri 3
and Van Wyk Van Heerden Attorneys v Gore N.O. 4
STATUTORY FRAMEWORK
[11] Section 9(1 ) of the Act permits a creditor with a liquidated claim of not less than the
prescribed amount to apply for sequestration. The section reads:
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"{1) A creditor (or his agent) who has a liquidated claim/or not less than 50 pounds,
or two or more creditors ( or their agent) who in the aggregate have liquidated
claims for not less than 100 pounds against a debtor who has committed an act
of insolvency, or is insolvent, may petition the Court/or the sequestration of the
estate of the debtor."
[12] Section 12(1) requires the Court, on the return date of a provisional order, to be
satisfied that the Applicant has established a liquidated claim as contempl ated in
section 9(1), an act of insolvency or factual insolvency and reason to believe that
sequestration will be to the advantage of creditors.
[13] Sections 26, 29 and 30 of the Act regu late dispositions without value, voidable
preferences and collusive dealings respectiv ely, each providing that a court fil2Y set
aside such dispositions. Section 31 regulates the consequences of certain
impeachable transactions. Ultimately Section 32(3) provides that:
"When the Court sets aside any disposition of property under any of the said sections, it
shall declare the trustee entitled to recover any property alienated under the said
disposition or in default of such property the value thereof at the date of the disposition
or at the date on which the disposition is set aside, whichever is the higher."
ANALYSIS
[14] It is correct tha t a liquidated claim refers to certainty of amount rather than certainty
of legal basis. The authorities relied upon by the Applicants establish no more than
that. The au thorities presented in argument presuppose the existence of a legally
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enforceab le claim, the amount of which is liquidated, i.e capable of determination
without reference, or being subject to further process. The Applicants do not address
the anterior que stio n raised by the court, being whether a debt exists at all where
liability is dependent upon the outcome of proceedings to set aside impeachable
dispositions.
[15] An impeachable disposition under sections 26, 29 or 30 of the Act is not void ab initio.
The aggrieved transaction remains valid and effective until set aside by a court. Until
such time, the liquidator holds a statutory right of action . The recipient of the
disposition does not stand in a debtor-creditor relationship with the insolvent estate.
Section 32 makes plain that the obligation to restore property or to pay compensat ion
arises only once the court has exercised its powers to set aside the disposition and to
grant consequentia l relief. This position applies across all categories of impeachabl e
dispositions relied upon by the Applicants .
[16] In seeking their relief, i.e the sequestrat ion of the Respondent, it is trite that the
Applicants must satisfy this court that, at a bare minimum, they are a creditor of the
Respondent having the necessary locus standi as envisaged in terms of the Insolvency
Act If they fail to do so, the application must fail.
It may well be that the Respondent is indebted to the Applicants, the causae of which
may be established by further evidence not presented in casu.
In the present matter however the Applicants rely, to establish their locus standi,
solely upon their alleged claim against the Respondent as founded in the relief they
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contend they are entitled to in terms of sections 26 to 32 of the Insolvency Act of 1936 .
They do so absent an order of this court setting aside the dispositions and,
concomitantly, absent a claim capable of being execute d upon.
Properly understood, Van Wyk Van Heerden supra confirms the supervisory role of
the court in insolvency matters and does not support the propo sition that a liquida ted
claim arises automatically upon identification of an impeachable transaction. While
sequestratio n proceed ings are not proceedings for the enforcement ofa debt, creditor
status remains a jurisdictional prerequi site. Sequestration cannot be used to crea te a
debt where none yet exists.
CONCLUSION
(17] On the Applicants' own plead ed case, the alleged claim arises from payment s
characterised as impeachab le disposition s. Vagueness as to which section might be
relied upon is irrelevant as the right of action of the Applicants have, has not been
converted into a claim in terms of section 32 of the Act. In the absence of such an
order no claim exists for purposes of sections 9(1) and 12(1)(a) of the Act. The
Applicants have accordingly failed to establish a valid claim and therefore, have failed
to establish their locus sta ndi to bring these proceedings ..
ORDER
[18] In the result, the rule nisi is discharged and the application for the final sequestration
of the Respondent's estate is dismissed.
REPRESENTATION FOR PARTIES:
FOR THE APPLICANTS:
Adv .. __________ _
Instructed by ______ _
AUTHORITIES
PJ GREYLING
ACTING JUDGE OF THE HIGH COURT
GAUTENG DIVISION, PRETORIA
FOR THE RESPONDENT
Adv .. _ _________ _
Instructed by ___ ___ _
1 Kleynhans v Van der Westhuizen NO 1970, (2) SA 742 (A) at 749E-750B.
2 Hassan and Others v Berrange NO, 2012 (6) SA 329 (SCA) at para 35.
3 Investec Bank Ltd and Another v Mutemeri and Another, 2010 (1) SA 265 (GSJ) at
paras 27-31.
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4 Van Wyk van Heerden Attorneys v Gore N.0, 2023 (1) SA 80 (SCA)