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[2026] ZAGPJHC 402
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Body Corporate Oshivelo v Mtimkulu (2023/067739) [2026] ZAGPJHC 402 (20 March 2026)
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REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBURG
Case Number: 2023-067739
(1)
REPORTABLE: No
(2)
OF INTEREST TO OTHER JUDGES: Yes
(3)
REVISED: Yes
In
the matter between:
BODY
CORPORATE
OSHIVELO
Applicant
and
NOMAHLUBI
CHRISTINE NOMALIZO
Respondent
MTIMKULU
Heard:
17 March 2026
Delivered:
20 March 2026
JUDGEMENT
NOTSHE
A.J
.
[1]
This is an application for the provisional liquidation of the
respondent.
[2]
It is now trite law that winding-up proceedings should not be
resorted to as a means of enforcing payment of a debt, the
existence
of which is bona fide disputed on reasonable grounds. This is part of
the broader principle that the court's processes
should not be
abused. The decisions are legion.
[3]
An applicant for winding up has to satisfy the following
requirements:
3.1 that it is a creditor
of the respondent and therefore has
locus standi
to institute
the proceedings;
3.2 that the respondent
is the debtor because it owes the amount claimed;
3.3 that the respondent
falls within one or more of the grounds laid down in section of the
Insolvency Act, 1936 (Act No. 24 of
1936). (“
the
Act
”)
[1]
[4]
In terms of section 10 of the Act the Court will grant a provisional
sequestration order if it is of the opinion that
prima facie:
(a)
the petitioning creditor has established against the debtor a claim
such as is mentioned in subsection
(1) of section nine; and
(b)
the debtor has committed an act of insolvency or is insolvent; and
(c)
there is reason to believe that it will be to the advantage of
creditors of the debtor if his
estate is sequestrated.
[5]
In this case the applicant alleges that the respondent has committed
an act of insolvency as set out in section 8(a) of
the Act.
[6]
Section 8(a) of the Act provides that a debtor commits an act of
insolvency
if “… [she] departs from [her] dwelling or
otherwise absents [herself], with intent by so doing to evade or
delay the
payment of [her] debts.”
[7]
In this case, the applicant alleges that the respondent absented
herself from her dwelling with the intention to evade
or delay the
payments of her debts.
[8]
The onus of proving an act of insolvency rests on the applicant.
At this stage, the applicant is required to lead
merely
prima
facie
evidence. It is, however, not sufficient for the applicant
merely to adopt the words of the relevant sections of the Act. The
applicant
must state the facts which constitute the alleged act of
insolvency. It must always be remembered that the founding affidavit
in
the insolvency application, like any other application, should
contain both the pleadings and the evidence. Rule 6(1) of the Uniform
Rules provides that every application shall be brought on notice of
motion supported by an affidavit as to facts upon which the
applicant
relies for the relief.
[9]
In this case, the applicant merely avers that “
The
Respondent has committed the following act of insolvency as envisaged
by
Section 8
of the
Insolvency Act 24 of 1936
. In terms of
Section 8(a)
of the Act as the Respondent has departed herself from
the property with the intention to avoid or delay paying her debt.”
[10]
This is a mere conclusion, but there are no facts that support this
conclusion.
[11]
An allegation to the effect that the respondent has departed from the
property with the intention to avoid or delay paying
the debt has two
components that must be proved. They are the objective fact of
departing and the subjective element; the departure
is intended to
evade or delay the payment of debts. These must not only be alleged
but must also be proved.
[12]
The first element is easy to prove: that the respondent departed from
the premises. The second element is proved by the
express words of
the respondent or the facts from which the intention of the
respondent can be inferred.
[13]
In
Hassan
v Berrange
[2]
the Court said the following:
“
Both ss 8(a)
and 8(d), in setting out acts of insolvency, refer to an intent on
the part of the debtor. In the case of s 8(a) the
intent is one to
evade or delay the payment of debts, while in s 8(d) the intent on
the part of the debtor is to prejudice his
creditors or to prefer one
creditor above another. The test of intention on the part of the
debtor is a subjective one (cf De Villiers
NO v Maursen Properties
(Pty) Ltd). Intention is established by a process of inferential
reasoning and is not dependent upon the
mere ipse dixit of the debtor
who may well deny that he has any such intention. A court, in
considering whether there was such
an intention, is required to weigh
up all the relevant facts and circumstances in order to determine
what, on the probabilities,
was the 'dominant, operative or effectual
intention in substance and in truth' of the debtor.
”
[14]
In this case, the applicant failed in both regards. There is no proof
that the respondent departed from the premises.
In the first place,
on 04 August 2022, the respondent sent an email to the applicant
giving her residential address. Thereafter,
the applicant received a
return of service of the sheriff dated 12 October 2022. The return of
service merely reads that “…
the warrant of execution
against the property could not be executed as the execution Debtor is
unknown at the given address as informed
by Mr Jimmy Sepondo Head of
security of Vukani consisting of 119 units.
”
[15]
There is no follow-up by the applicant informing the respondent that
she could not be found at the address she had given.
[16]
The next attempt to serve the writ of execution is at a different
address. Not surprisingly, the return of service reads
that the
whereabouts of the debtor were unknown.
[17]
It is clear from the foregoing that this cannot be proof that the
respondent departed from the premises, let alone with
the intention
to delay or evade paying her debts.
[18]
The applicant has failed dismally to prove that the respondent
committed an act of insolvency that is alleged.
[19]
I therefore make the following order:
(a) The application for a
provisional sequestration of the respondent is dismissed.
(b) The applicant is to
pay the costs of the application.
V.
S NOTSHE
Acting
Judge of the High Court
APPEARANCES:
For
the Applicant: Messrs Alan Levy Attorneys Inc
For
the Respondent: In Person
[1]
Section 8 provides that:
“
A
debtor commits an act of insolvency-
(a)
if he leaves the Republic or being out of the
Republic remains
absent therefrom, or departs from his dwelling or otherwise absents
himself, with intent by so doing to evade
or delay the payment of
his debts;
(b)
if a court has given judgment against him and he fails,
upon the
demand of the officer whose duty it is to execute that judgment, to
satisfy it or to indicate to that officer disposable
property
sufficient to satisfy it, or if it appears from the return made by
that officer that he has not found sufficient disposable
property to
satisfy the judgment;
(c)
if he makes or attempts to make any disposition
of any of his
property which has or would have the effect of prejudicing his
creditors or of preferring one creditor above another;
(d)
if he removes or attempts to remove any of his property
with intent
to prejudice his creditors or to prefer one creditor above another;
(e)
if he makes or offers to make any arrangement
with any of his
creditors for releasing him wholly or partially from his debts;
(f)
if, after having published a notice of surrender
of his estate which
has not lapsed or been withdrawn in terms of section six or seven,
he fails to comply with the requirements
of subsection (3) of
section four or lodges, in terms of that subsection, a statement
which is incorrect or incomplete in any
material respect or fails to
apply for the acceptance of the surrender of his estate on the date
mentioned in the aforesaid notice
as the date on which such
application is to be made;
(g)
if he gives notice in writing to any one of his
creditors that he is
unable to pay any of his debts;
(h)
if, being a trader, he gives notice in the Gazette
in terms of
subsection (1) of section thirty-four, and is thereafter unable to
pay all his debts.”
[2]
2012
(6) SA 329
(SCA).