IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, PRETORIA
CASE NO: 2025-161004
In the ex parte application of:
CLIVE GERARD DINSDALE First Applicant
and
NATASJA DINSDALE Second Applicant
CASE NO: 2025-185019
In the ex parte application of:
SUSARAH MAGDALENA ALETTA PRINSLOO Applicant
CASE NO: 2025-178555
In the ex parte application of:
HENDRIK JACOBUS DU PREEZ Applicant
CASE NO: 2025-178553
In the ex parte application of:
ASHLEIGH EVELYN SCHOULTZ Applicant
(1) REPORTABLE: YES
(2) OF INTEREST TO OTHER JUDGES: YES
(3) REVISED.
9 April 2026
Date K. La M Manamela
2
SUMMARY: Insolvency law - voluntary surrender – four applications in which monies
(amounts not disclosed to the Court ) were paid to the attorney in advance and to be
retained as fees - section 6(1) of the Insolvency Act 24 of 1936 (‘the Act’) requires existence
of enough free residue to defray all costs of sequestration – voluntary surrender requires
utmost good faith and full and frank disclosure of an applicant’s financial position – -
non-disclosure of the monies paid to the attorney jeopardises the oversight function of the
Court, the trustees, creditors and the Master - the attorney filed explanatory affidavit
upon request - source of funds paid as fees or costs on behalf of the applicants irrelevant,
as the funds received form part of the estate for purposes of the Act and not a private
contractual issue - section 97 of the Act envisages taxation of legal fees , as costs of
sequestration - formalities for surrender met, but determining sufficiency of the free
residue and advantage to creditors depends on the inclusion of the monies as part of the
estate -applications postponed for disclosure by the att orney and the applicants of the
amounts paid.
DATE OF JUDGMENT: This judgment is issued by the Judge whose name is reflected herein
and is submitted electronically to the parties/their legal representatives by email. The judgment
is further uploaded to the electronic file of this matter on CaseLines by the Judge’s secr etary.
The date of the judgment is deemed to be 9 April 2026.
JUDGMENT
Manamela, J
Introduction
[1] In these four applications or petitions1 for voluntary surrender, no provision is made for
attorneys’ fees or costs in the costs of sequestration .2 This appears to be contrary to s ection
6(1) of the Insolvency Act 24 of 1936 (‘Act’) requiring that an applicant for acceptance of the
surrender of her estate, as a debtor, among others, establishes in her application that there will
be enough free residue 3 to defray all costs of sequestration . It is stated in these applications
1 The petition procedure was abolished and replaced - as a mode to institute proceedings - with notice of
motion in terms of Petition Proceedings Replacement Act 35 of 1976 with effect from 1 July 1976. See
DE van Loggerenberg, Erasmus: Superior Court Practice (Revision Service 24, 2024, Jutastat e -
publications October 2024) RS 24, 2024, D1 Rule 6- 60.
2 Section 6(1) of the Act. See also s 97 of the Act on costs of sequestration.
3 Section 2 of the Act defines ‘ free residue’ with regard to an insolvent estate as ‘that portion of the estate
which is not subject to any right of preference by reason of any special mortgage, legal hypoth ec, pledge
or right of retention’. See also RD Sharrock, ‘Insolvency’ in The Law of South Africa (LAWSA) (LexisNexis
2008) (‘Sharrock LAWSA’) at 317.
3
that the attorneys’ costs or fees (‘legal fees’) have already been paid, prior to the launch of the
applications. The amount s reportedly paid as legal fees are not even disclosed in the
applications and an explanatory affidavit by the attorney subsequently filed upon request of the
Court. Therefore, the Court is expected to accept the surrender of the respective estates, despite
the fact that some of the costs of sequestration – in the form of the legal fees in the unknown
amounts – have been paid out of the estate s and will not be subjected to the oversight of the
trustees to be appointed; the Master of the High Court (‘the Master’); the taxing master and
this Court. All these applications reflect that there will be a dividend payable to the concurrent
creditors, after payment of the specified costs of sequestration, excluding legal fees. Assuming
for a moment that the issue of legal fees has no bearing on the other substantive requirements,
the applications appear to have met all requirements for the voluntary surrender of the estates.
[2] The pre-application payment of the legal fees and exclusion of th ose fees from other
costs of sequestration did not seem to me to comport with the provisions of the Act and,
generally, with the principles and objectives of our insolvency law . The principal purpose of
the Act is to provide a method for collective debt-collection resulting in an orderly and fair
distribution of the insufficient assets of an insolvent debtor to satisfy all claims of the creditors.4
The general acceptance is that a concursus creditorum5 arises from the moment an order for
the sequestration of a debtor’s estate is granted.6 Although this concept is focussed on the
rights of creditors and, to the extent possible, the satisfaction of their claims, it does not exclude
the orderly and fair calculation and payment of costs of sequestration including legal fees ,
4 Eberhard Bertelsmann and others, Mars: The Law of Insolvency 10th Ed, 2019 (‘ Mars: The Law of
Insolvency’) par 1.1 at p 2.
5 The literal meaning of concursus creditorum is ‘a rush (concourse) of creditors') simultaneous claim by
several creditors; simultaneity of creditors' claims’ . See VG Hiemstra and HL Gonin, Trilingual Legal
Dictionary (3rd edn, Juta 1992). The concept is considered one of the key concepts of the law of insolvency
in South Africa. See also Mars: The Law of Insolvency par 1.1 at pp 3-4; Walker v Syfret NO 1911 AD 141
at 166.
6 Walker v Syfret NO 1911 AD 141 at 166. See also Mars: The Law of Insolvency par 1.1 at p 3.
4
which precede the payment of the concurrent claims of creditors.7 When the applications came
before me in the Insolvency Motion Court during the week of 9 to 13 February 2026 , I stood
them down to later in the week to allow counsel to take further instructions and, possibly,
prepare to make further submissions, on the issue of the impugned legal fees.
[3] Mr B Lee appeared as counsel in all four applications on brief from Michael Senekal
Attorney. When he finally appeared on Friday, 13 February 2026, he drew my attention to an
affidavit deposed to by the attorney, Mr Senekal, the previous day in one of these matters
explaining the position regarding the legal fees. He passed an opportunity to file written
submissions on the issue for full reliance on the affidavit filed by his instructing attorney.
Judgment was reserved in these applications.
[4] The applications are based on distinct sets of facts, as applications of this nature always
are, but what requires to be determined for purposes of the disposal of the applications is the
crisp issue of the implications of the exclusion of the legal fees from all other costs of
sequestration. I am, generally, satisfied that the other substantive and procedural requirements
for relief have been met.8 But a final view on the outcome of the four applications hinges on
finality on the issue of legal fees, which issue has a bearing on the determination of whether
sequestration of the respective estates will be to the advantage of the creditors. For these
reasons, I decided that a joint judgment is appropriate for all four applications. But , the areas
7 Section 97, read with s 103, of the Act.
8 Section 6(1) of the Act provides that an applicant debtor for voluntary surrender ought to meet both
substantive and procedural requirements for relief. The substantive requirements are those relating to: (a)
the debtor’s insolvency; (b) her ownership of ‘realisable property’ of sufficient value to yield the free
residue to defray all costs of the sequestration, and (c) sequestration being (‘will be’) to the advantage of
the debtor’s creditors. The procedural requirements are those under s 4 of the Act in the form of a notice
of surrender and statement of the debtor’s affairs. See also s 3 of the Act. See, generally, André Boraine,
Jennifer A Kunst and David A Burdette (eds), Meskin’s Insolvency Law (LexisNexis, November 2025)
(‘Meskin’s Insolvency Law)’ pars 3.2 and 3.3.
5
of divergence in the facts of the matters appear in the specific summaries of the matters, I deal
with first.
Ex parte Clive Gerard Dinsdale and Another, Case Number : 2025-161004 (‘Ex parte
Dinsdale’)
[5] The voluntary surrender application of Ex parte Dinsdale, brought by Mr Clive Gerard
Dinsdale and Mrs Natasja Dinsdale, came before me on 11 February 2026 and was stood down
to 13 February 2026.
[6] The Dinsdales are married to each other in community of property. They are both
unemployed and reside in East Lynne, Pretoria. Mr Dinsdale, deposed to the founding affidavit.
He stated that he was declared medically unfit in 2024 and, thereafter, lost his employment. He
is currently a beneficiary of the unemployment insurance fund (‘UIF’). His net monthly income
is in the region of R7000. Mrs Dinsdale, deposed to a confirmatory affidavit. She confirmed
that she is unemployed and that t hey currently stay for free with other f amily members. They
contribute towards utilities in the amount of R1 500. Their total monthly expenses are in the
amount of R16 126.
[7] The Dinsdales say that their debts or liabilities arose from loans and credit facilities .
They are now unable to repay these debts. They also relied on their children and other members
of their extended family in payment of these debts, but this has proven unsustainable. They do
not own any immovable property. And their movable assets comprise household furniture and
appliances with estimated value of R22 800. Their list of creditors reflects financial institutions
and credit retailers with concurrent claims in the total amount of R81 008, 57. They state that
the creditors would receive about 23 cents in the rand from a free residue amount of
R18 882.05. The costs of sequestration – excluding the impugned legal fees – are stated as the
6
amount of R3 917.95. The legal fees are simply stated as ‘Nil’ and accompanied by the words
‘already paid’ in the founding affidavit.9
[8] As already indicated, the attorney, Mr Senekal deposed to an affidavit on 12 February
2026 in which he explained the situation regard ing the legal fees paid to his law firm . It is
necessary to quote extensively from Mr Senekal’s affidavit as follows:
2.
PURPOSE OF THIS AFFIDAVIT
This affidavit is delivered at the request of the above Honourable Court in order to
clarify the arrangement relating to the legal fees incurred in bringing this application.
3.
PAYMENT OF ATTORNEY’S FEES
3.1 Prior to the launching of this application, my firm rendered a quotation to the
Applicants in respect of the professional fees and disbursements associated
with the preparation and prosecution of this application.
3.2 The Applicants’ family elected to pay such fees personally and in advance.
3.3 Payment of the agreed professional fees was made to my firm before the
application was instituted.
3.4 The funds received in payment of such fees were not received from the
insolvent estate, nor from any asset which would otherwise form part of the
free residue of the estate.
4.
NO CLAIM AGAINST THE ESTATE
4.1 I confirm unequivocally that:
4.1.1 My firm will not submit any bill of costs for taxation in respect of the work
performed in bringing this application;
4.1.2 No claim will be lodged against the insolvent estate for legal fees in respect of
this application;
4.1.3 The fees already paid will not form part of the costs of administration of the
estate;
4.1.4 No further legal costs in respect of this application will be sought from the
estate.
4.2 The arrangement between myself and the Applicants is a private contractual
arrangement which does not affect the concursus creditorum and does not
diminish the assets available to the creditors.
5.
LEGAL POSITION
5.1 It is respectfully submitted that there is no prohibition in the Insolvency Act
5.1 It is respectfully submitted that there is no prohibition in the Insolvency Act
24 of 1936 against an applicant funding litigation personally prior to
sequestration or rehabilitation proceedings.
5.2 Where legal fees are paid from independent funds and no claim is made against
the estate, such payment does not constitute a cost of administration.
5.3 As no claim will be made against the estate and no taxation will follow,
creditors suffer no prejudice.
6.
CONCLUSION
9 Founding Affidavit (‘FA’) par 14, CaseLines (‘CL’) 005-6.
7
6.1 I confirm that the fees relating to this application have been fully discharged
and that no portion thereof will be recovered from the insolvent estate.
6.2 This affidavit is furnished to assist the Court in determining that the
administration costs of the estate remain unaffected by the private funding of
this application.10
[9] Mr B Lee, appearing for the applicant in this matter and the three other matters,
informed the Court that the explanatory affidavit filed in this matter should be considered in
all other three matters. The affidavit is not uploaded on the electronic files for the other matters
on CaseLines. This does seem proper and the other matters have their own unique facts. I deal
with each of the matters, next.
Ex Parte Susarah Magdalena Aletta Prinsloo, Case Number: 2025 -185019 (‘Ex parte
Prinsloo’)
[10] Ex parte Prinsloo came before me on 12 February 2026 and was also stood down to the
next day. It concerns Ms Susarah Magdalena Aletta Prinsloo, a 68 year old applicant-debtor,
who earns a living as a manager of an old age home (i.e. retirement village’). She takes home
an amount of R12 000 monthly. This is insufficient to cover her living expenses in the amount
of R22 045 per month. She is married out of community of property and resides in Eloffsdal,
Pretoria with her husband, who is a pensioner.
[11] The applicant stated the cause of her insolvency to be the closure of her own retirement
village she previously operated until it closed down , due to financial constraints. She ,
thereafter, had to make ends meet through the use of credit facilities. As in Ex parte Dinsdale,
Ms Prinsloo also states that she is financially reliant on family and friends to survive. The
applicant stated that she is unable to pay her debts in the region of R100 045, 23. Her assets
are valued in the amount of R24 400. She says that creditors would receive a dividend of 21
cents in the rand from the amount of R21 072 which would be available from the proceeds of
cents in the rand from the amount of R21 072 which would be available from the proceeds of
10 CL 020-2 to 020-4.
8
sale of her assets, after costs of sequestration in the amount of R3 328 is deducted. Similarly to
Ex parte Dinsdale the applicant stated in her founding affidavit that the legal fees have already
been paid, without disclosing the amount the reof. Therefore, this cost element does not form
part of the calculation made on the costs of sequestration. Mr Lee, as stated above, informed
the Court that the explanation on legal fees filed in Ex parte Dinsdale should be considered for
purposes of the same issue in this matter.
Ex parte Hendrik Jacobus du Preez, Case Number: 2025-178555 (‘Ex parte du Preez’)
[12] The voluntary surrender of Mr Hendrik Jacobus du Preez (i.e. ‘Ex parte du Preez’) was
heard on 12 February 2026. It was stood down to 13 February 2026. Mr Du Preez is divorced.
He is employed as a mobile plant administration trainee and resides in Pinehaven Estate,
Krugersdorp.
[13] Mr Du Preez attributed the cause of his insolvency to be his previous bout of
unemployment for a period of more than three years. This led to him being unable to pay for
his house, household furniture and motor vehicle. He lost everything , save for the household
furniture now valued at R15 000. His current employment pays him a net income of R20 376,
07, which he says is much less tha n what he earned from the lost job. He, thus, is unable to
provide for his bare necessities and repayment of his debts in the amount of R24 720.
[14] According to Mr Du Preez there is no way out of his financial situation, but to apply
for the surrender of his estate. In addition to the amount of R15 000 to be derived from the sale
of his household furniture , he says there is an amount of R10 000 stated as ‘cash in
hand/financial institution’ .11 This, he asserts, would be sufficient to pay for costs of
sequestration in the amount of R3 328. The balance of R21 672 would be shared amongst his
creditors to yield to them a dividend of 21 cents in the rand in satisfaction of their claims. The
11 FA par 14, CL 05-6.
9
claims ag ainst his estate are in the total amount of R102 369.25. As with the other two
applications above the costs of administration do not include legal fees, as the legal fees have
already been paid prior to the launch of this application for the same reasons given in Ex parte
Dinsdale. But, i nterestingly, for the paramount issue in this judgment the applicant in this
matter (i.e. Ex parte du Preez ’) stated that his parents assisted him financially to bring this
application. In the other applications this averment came from the affidavit deposed to by the
attorney.
Ex parte Ashleigh Evelyn Schoultz, Case Number: 2025-178553 (‘Ex parte Schoultz’)
[15] Ex parte Schoultz was heard on Friday, 13 February 2026. Unlike the other three, there
was no opportunity for it to be stood down to another date, but counsel once more referred the
Court to the affidavit filed in Ex parte Dinsdale to pass an opportunity (for a specific
explanation or submissions in this matter) of the pre -application payment of legal fees of
Michael Senekal Attorney.
[16] This application concerns the insolvent estate of Ms Ashleigh Evelyn Schoultz of
Mayville, Pretoria. She is divorced and works as an accounts manager for an undisclosed
employer. She states that she has been struggling financially since her divorce. She is unable
to make ends meet from her income and small amount she receives as maintenance from her
former spouse. Her net monthly income is R21 796. She is unable to pay her debts on a monthly
basis, despite gratuities from family and friends. Her monthly expenses are in the amount of
R24 766. Therefore, she sees the voluntary surrender of her estate as the only viable solution
to her situation.
[17] Ms Schoultz does not own any fixed property and the movable assets to her name are
valued at R22 000. Her liabilities are in the amount of R90 586, 48. From the remaining
R18672 after payment of costs of sequestration (in amount of R3 328), the applicant is of the
10
view that sequestration would benefit the creditors in her estate, as they would derive at least
21 cents in the rand. As with the other applications, discussed above, the costs of administration
in this matter do not include legal fees. They have been already paid in an amount both the
applicant and her attorney, Mr Senekal, have not bothered to disclose to the Court. I turn to the
explanation given by Mr Senekal for this approach in all four matters before the Court.
Payment of the legal fees before the hearing of the applications (in general)
[18] A court seized with a surrender of an estate of a debtor may accept such surrender and
make an order for sequestration of the estate if it is satisfied that the formalities or procedural
requirements in section 4 of the Act and the substantive requirements in section 6(1) of the Act
have been met.12 The latter requirements include that there is sufficient free residue (i.e. value
of the debtor’s realisable property not subject to any security) to defray all costs of
sequestration.13
[19] I am satisfied that the formalities have been complied with in all four matters. Equally,
I am convinced that the respective estates of the applicants in the se matters are insolvent. I
cannot determine the requirement whether there is sufficient free residue to defray all costs of
sequestration, when not all costs have been accounted for. The issue of the payment (or
retention of ) the legal fees by the attorney ought to be settled pri or to a ruling that this
requirement has been satisfied. And before such ruling is made I cannot accept the so -called
‘dividends’ put forward in these matter s to bolster the contention that s equestration of the
respective estates will be to the advantage of the creditors in the estates.
[20] At face value the issue – novel as it may seem – appears inconsequential. But its
shrouding by the palpable level of secrecy also drew my attention. Voluntary surrenders belong
shrouding by the palpable level of secrecy also drew my attention. Voluntary surrenders belong
12 Footnote 8 above.
13 Ibid.
11
to the realm of utmost good faith and full and frank disclosure on the part of the applicant -
debtor of all facts relating to her financial position. 14 An intense interrogat ion of the issue
against the aspects of the explanation given by the attorney would reveal the hallmarks of
improper and unfair conduct which cannot be countenanced by this Court. I look into the
attempt by the applicants’ attorney, Mr Senekal, to explain the situation in the four matters and
have, largely, adopted his choice of words, as subheadings.
Pre-litigation quotation of legal fees by the attorneys
[21] The applicants’ attorney, Mr Senekal, explained to the Court that prior to the launch of
the application, his firm provided the applicants with quotations on the fees to be charged and,
ostensibly, disbursements to be recovered in ‘ the preparation and prosecution ’ of th eir
applications.
[22] So far nothing seems improper. An attorney providing his client, a prospective client,
with a quotation or estimation as to fees is proper . In fact, it may be a regulatory requirement
by the Legal Practice Council of which Mr Senekal, no doubt, is a member.
[23] But, a quotation is only an estimate or projection of the fees which may be charged on
the basis of the activities which are ordinarily expected from the matter. A quotation does not
reflect the work actually done, but a postulation of what may be the activities in the matter and
the associated costs, such as counsel’s fees. Its purpose is to provide the client with an idea of
the fees or costs that may be charged. Once the actual work is done or part thereof, the attorney
would have to send an account or a bill of costs, drafted on the basis of the actual work done
in the matter. Mr Senekal could not have presented an account or a bill of costs because at the
14 Fesi and Another v ABSA Bank Ltd [1999] JOL 5634 (C); 2000 1 SA 499 (C) 502 at 502 -503; Ex parte
Arntzen (Nedbank Ltd as Intervening Creditor) 2013 (1) SA 49 ( KZP) [5]-[6], [12]; Ex Parte Q.R.E and
Another (55075/2014) [2014] ZAGPPHC 919; 2015 (1) SA 540 (GP) (15 October 2014) [7]-[8]; Ex parte
Oberholzer; Ex parte Nchabeleng and Another; Ex parte Van der Walt and Another (4251/2017) [2017]
ZAGPPHC 566 [39]; Ex parte Mc Bride (2024-003235) [2024] ZAGPPHC 1166 (15 August 2024) . See
also Sharrock LAWSA at 317.
12
material stage he had not yet done any work in the matters. Evidently, these matters are not yet
finalised.
[24] Perhaps, Mr Senekal, is referring to an agreed fee on the work still to be done once a
quotation was given to the applicants, as his clients. The applicants in these four matters would
need to be actually insolvent to require the services of Mr Senekal in the voluntary surrenders.
Meaning the applicants in the matters would have been already insolvent by the time they set
foot on Mr Senekal’s door. For current purposes, I am not commenting on whether an insolvent
may conclude such agreement.
[25] What is rather concerning – so far in the discussion – is the fact that the applicants and
Mr Senekal have decided not to divulge how much was paid to Mr Senekal in these four matters
following his so-called quotations or my ventured ‘agreed fee’ scenario. He did not provide the
Court with a copy of the quotations and proof of payment by the applicants or the third parties
he alleges paid the money on behalf of the applicants . This, notwithstanding, an opportunity
given to him by the Court in standing down the matters (i.e. three of the four matters) for a
hearing later in the week. The quantum and source of the funds paid are crit ical, as would
become clear in the next rubric from Mr Senekal’s explanation, I am now turning to.
Third party or family pa id the legal fees in terms of legitimate p rivate contractual
arrangements
[26] It is stated by Mr Senekal that after the applicants were, ostensibly, satisfied with the
quotation by his law firm, they requested one or more of their family members to pay the quoted
amounts. This was done in advance, Mr Senekal pointed out.
[27] He, further, emphasised that the funds received in payment of such fees were not
received from the applicants’ insolvent estates or from an asset of the estates forming part of
the free residue in the estates. But it really does not matter the origin of the fu nds, once paid
13
for purposes of the surrender applications, the ‘gifted’ funds form part of the estate to be
considered in terms of the provisions of the Act. After all, they were ‘gifted’ for exactly that
purpose. The Practice Manual of this Division appears to have been alive to payments made by
third parties on behalf of applicants, albeit for a different reason, from a reading of this part:
4.4 Where the applicant seeks to establish advantage to creditors by relying on a
sum of money paid into an attorney’s trust account to establish benefit for creditors,
an affidavit by the attorney must be attached to the application in which he/she
confirms that the money has been paid into his/her trust account and will be retained
until the appointment of a trustee.
The source of the funds paid into the attorney’s trust account must be clearly
disclosed under oath by the person providing the money.15
[underlining added for emphasis]
[28] Mr Senekal, further, considers the payment of the legal fees a private contractual
arrangement between him or his law firm and the individuals involved. The arrangement does
not affect the concursus creditorum and does not diminish the assets available to the creditors,
he explained. He also added – for good measure, I suppose - that there is no prohibition in the
Act against an applicant funding litigation personally prior to sequestration or rehabilitation
proceedings.
[29] Mr Senekal, with respect, cannot blow hot and cold on the issue . If the arrangement is
a private affair the applicants cannot invoke it to motivate that section 6(1) have been met in
that all costs of sequestration would be paid. When this is done the statutory mechanism is
engaged and there is no room to carve out some area in the determination as being out of
bounds. Simply put, legal fees in voluntary surrender are subject to statutory regulation and,
thus, subjected to judicial oversight and even that of the taxing master and the Master . This is
borne by section 97 of the Act, quoted below.16
15 Practice Manual of the Gauteng Division Pretoria Chapter 15 par 15.14.
16 Par [34] below.
14
[30] Therefore, all these assertions by Mr Senekal cannot justify his retention of the
impugned funds, if the applications are to succeed. The fact that the legal fees were paid in
advance to Mr Senekal’s law firm and the payment was made by some benefactor on behalf of
the applicants, does not alter the ultimate identity of the funds (i.e. costs of sequestration as
statutorily defined).17 The same applies to the timing of the payment (i.e. that p ayment made
to the attorney in advance or before the application was instituted ). The funds were paid to
satisfy the Court that all costs of administration required to be paid in terms of the Act would
indeed be paid. This is the reason the applicant relied on this in their quest to convince the
Court that the substantive requirements of the Act have been met. It would have been
unnecessary to involve the Court in a private arrangement.
No claim against the estate, no taxation of bill of costs and, thus, no prejudice to the estates
[31] Mr Senekal assured the Court that there will be no claim lodged against the insolvent
estate for the legal fees in respect of these applications. He will not submit any bill of costs for
taxation in respect of the work performed in bringing these applications, he further explained.
Therefore, the creditors will not suffer any prejudice due to these fee arrangements, he
concluded.
[32] Regarding the assertion that no claim will be lodged against the estate, I immediately
point out that the costs of sequest ration are not claims against the estate. Provided they are
found reasonable (through taxation) costs of sequestration have to be pai d in full. 18 There is
no real risk in this regard. But claims by creditors have to settle for some form of dividend,
17 Ibid.
18 Ex parte Oberholzer; Ex parte Nchabeleng and Another; Ex parte Van der Walt and Another (4251/2017)
[2017] ZAGPPHC 566 [44]-[45].
15
hence the laborious attempt by our Courts to suggest a minimum percentage or cents in the
rand, still standing at 20 cents in the rand (equating to 20% of each claim) for this Division.19
[33] Regarding the view by Mr Senekal that he would not be presenting bills of costs to the
trustees, once appointed, and that no taxation of such bill s of costs would follow, I consider
this view a non-starter. Mr Senekal as a member of the legal profession cannot be proud that
his fees quoted to the applicants in these matters during their most desperate of times (read
insolvency circumstances) would escape the scrutiny of the trustees, the Master and that of the
taxing master. He has also sought to preclude the Court from knowing how much he charged
and for what he charged for. This does not augur well for his membership of the legal profession
and as an officer of this Court.
[34] But legal fees recognised as costs of sequestration in terms of the Act are ‘taxed costs’.
This is provided by section 97(3) (read with section 97(2)(c)) of the Act, as follows in the
material part:
… the expression 'taxed costs of sequestration' means the costs (as taxed by the
registrar of the court) incurred in connection with the petition of the debtor for
acceptance of the surrender of his estate or of a creditor for the sequestration of the
debtor's estate…
[35] The taxed costs of sequestration form part of the free residue from which all costs of
sequestration are paid. 20 Presentation of a bill of costs and taxation thereof are statutory
requirements for recovery of legal fees from voluntary surrenders by Mr Senekal in all four
matters. And there is only one payment model for such costs in sequestrations, namely, by the
trustees in terms of a liquidation and distribution account confirmed by the Master. The novel
arrangements by Mr Senekal and his law firm are not recognised by our law for voluntary
19 Practice Manual par 15.14 , sub-par 4.5.6. See also Ex Parte Q.R.E and Another (55075/2014) [2014]
ZAGPPHC 919; 2015 (1) SA 540 (GP) [5]; Ex parte Slabbert (099263/2024) [2025] ZAGPPHC 286;
[2025] 3 All SA 264 (GP) (20 March 2025).
20 Section 97(1) of Act.
16
surrenders and, therefore, cannot form part of the determination of these applications before
the Court.
[36] To avoid doubt, creditors do not suffer prejudice due to payment of costs of
sequestration. It is a statutory requirement to be complied with prior to the concurrent dividend
being paid to creditors. The refore, the purported favour to creditors from Mr Senekal is not
established.
Costs of sequestration or administration (generally)
[37] In the light of the assertions by Mr Senekal in his quest to explain his retention of the
funds for legal fees, I deem it necessary to state a few principles regarding costs of sequestration
or, as otherwise known, costs of administration generated by our courts and academic
commentators. This should not detain the Court.
[38] It is trite that fees and costs (i.e. expenses incurred) for drawing the application and its
accompanying affidavits, as well as attendances, form part of the costs of sequestration a nd,
thus, are payable out of the estate. 21 These costs form part of the general (or all) costs of
administration.22
[39] An applicant for voluntary surrender is saddled with an onus of establishing the
substantive requirement that there is sufficient realisable property or free residue to cover the
costs of sequestration, failing which the surrender ought to be refused.23 Where there is doubt
as to the sufficiency of the free residue towards this end, a guarantee, satisfactory to the Master,
21 Mars: The Law of Insolvency par 3.2.4.
22 Section 97 of the Act. See also Sharrock LAWSA at 317.
23 Ex parte Steyn [1962] 3 All SA 35 (O); 1962 3 SA 121 (O) 122 ; Ex parte Anthony en 'n Ander en Ses
Soortgelyke Aansoeke 2000 (4) SA 116 (C) [8]; Ex parte Mc Bride (2024-003235) [2024] ZAGPPHC 1166
[11]. See also Sharrock LAWSA at 317; Meskin’s Insolvency Law at 3.2.
17
may be required to be furnished.24 To avoid doubt, the guarantee is not to add to the free
residue, but to eliminate any doubt as to the sufficiency of the free residue.25
Other relevant considerations
[40] The arrangements on the legal fees by Mr Senekal raises other concerns.
[41] First, the non-disclosure of the legal fees improperly places in jeopardy the oversight
jurisdiction of this Court, the trustees, any proven creditor of the estate and the Master. As part
of its jurisdiction the Court need not only be aware of the amount to be charged as legal fees
for the surrender, but the Court is enjoined to satisfy itself of the reasonableness of the amount
charged. Towards fulfilment of this responsibility the Court may even deprive a practitioner of
costs (or part thereof) as a sanction deemed appropriate by the Court to address conduct in
litigation involving voluntary surrender. 26 The trustees may challenge the fees in taxation
before the taxing master of the Court. And, on the other hand, the creditors who have proven
claims against the estate may object to confirmation of a liquidation and distribution account
containing items for such legal fees they are disgruntled about. Overall, the Master may query
or, based on valid cause, disallow such legal fees when a liquidation and distribution account
is lodged for confirmation. The quest by Mr Senekal is to insulate himself or his law firm from
all these control measures. These are unwelcome prying eyes into his private contractual
matters.
[42] Secondly, providing for costs of administration at the application stage is not equivalent
to payment of such costs. This is not to denigrate the quality of the evidence often placed before
the Court and the laudable efforts which, often, go into preparing such evidence. For c osts of
24 Mindel v Shaer 1937 TPD 378 at 380-381. See also Sharrock LAWSA at 317.
24 Mindel v Shaer 1937 TPD 378 at 380-381. See also Sharrock LAWSA at 317.
25 Ex parte McKechnie 1938 WLD 45 at 47. See also Sharrock LAWSA at 317.
26 Practice Manual par 15.14, sub -par 4.5.7. See also Ex Parte Q.R.E and Another (55075/2014) [2014]
ZAGPPHC 919; 2015 (1) SA 540 (GP) [17].
18
sequestration are supposed to reflect a calculation of the relevant costs arrived at with some
level of precision as much as possible and not just rough estimation of the costs payable out of
the free residue of the insolvent estate. 27 But the reality of life remains that, at the application
stage, the quantum of most of what is considered free residue (from which the costs are to be
paid) emanates from the valuations furnished on movable assets. In the real world of willing
buyer and willing seller the impugned assets may not fetch exactly what they are postulated to
fetch. But Mr Senekal does not want such risks, he had already secured his payment in advance.
Conclusion
[43] The attempts by Mr Senekal to place the funds paid as legal fees for these applications
would fail for the reasons set out above. The fees paid cannot be kept a secret and out of reach
of the trustees to be appointed once the surrender of the estates of the respective applicants in
these matters is accepted. I will include in the order to be made a term to this effect.
[44] As for the applicants in these matters before the Court and anyone who is to invoke the
remedy of voluntary surrender, it ought to be borne in mind that the discretion of the Court in
determining this remedy is wide. Even within its restraints requiring that the discretion be
exercised judicially, it still allows the Court to refuse applications not made by the applicant -
debtor in good faith and devoid of a full and frank disclosure of the applicant’s financial
position.28 And, where deemed appropriate, such applications may be postponed on specific
directives of the Court. The primary mischief being guarded against in this regard is risk of
abuse of the process.29
27 Ex parte Anthony 2000 (4) SA 116 (C) [8]. See also Meskin at 3.2. Section 6(1) of the Act.
28 Ex parte Swart 1935 NPD 432; Fesi v ABSA Bank Ltd [1999] JOL 5634 (C); 2000 1 SA 499 (C) 502 at
502-503; Ex parte Arntzen 2013 (1) SA 49 (KZP) [5]-[6], [12]. See also Sharrock LAWSA 317.
29 Ex parte Concato and Similar Cases 2016 (3) SA 549 (WCC) [7]; Ex parte Arntzen 2013 (1) SA 49 (KZP)
[12]. See also Sharrock LAWSA 317.
19
[45] The applications would have to be postponed to allow d isclosure of the amounts paid
as fees to the attorney. The postponement would be to a specific date when I am in the
unopposed motion court in the next term, as my sitting in the insolvency court would come a
bit earlier than the time periods in the order would allow. The attorney would not be allowed
to charge or recover any fees regarding anything done pursuant to the order made below.
Order
[46] In the premises,
[46.1] in the ex parte application of Clive Gerard Dinsdale and Another under Case
Number: 2025-161004, I make the order, that:
1. the application is postponed to 10 June 2026;
2. Mr Michael Senekal of Michael Senekal Attorney shall furnish an affidavit in
which he discloses the amount of money received as attorney’s fees and costs
in respect of this matter within twenty (20) days from the date of this order;
3. Clive Gerard Dinsdale and Natasja Dinsdale shall furnish an affidavit in which
they disclose the amount of money paid to Mr Michael Senekal or Michael
Senekal Attorney as attorney’s fees and costs, either by themselves or on their
behalf by other person(s), in respect of this matter within t hirty (30) days from
the date of this order; and
4. Costs of the activities relating to 2 and 3 hereof shall be borne by Mr Michael
Senekal and/or Michael Senekal Attorney.
[46.2] in the ex parte application of Susarah Magdalena Aletta Prinsloo under Case
Number: 2025-185019, I make the order, that:
20
1. the application is postponed to 10 June 2026;
2. Mr Michael Senekal of Michael Senekal Attorney shall furnish an affidavit in
which he discloses the amount of money received as attorney’s fees and costs
in respect of this matter within twenty (20) days from the date of this order;
3. Susarah Magdalena Al etta Prinsloo shall furnish an affidavit in which she
discloses the amount of money paid to Mr Michael Senekal or Michael Senekal
Attorney as attorney’s fees and costs, either by herself or on her behalf by other
person(s), in respect of this matter within thirty (30) days from the date of this
order; and
4. Costs of the activities relating to 2 and 3 hereof shall be borne by Mr Michael
Senekal and/or Michael Senekal Attorney.
[46.3] in the ex parte application of Hendrik Jacobus du Preez under Case Number: 2025-
178555, I make the order, that:
1. the application is postponed to 10 June 2026;
2. Mr Michael Senekal of Michael Senekal Attorney shall furnish an affidavit in
which he discloses the amount of money received as attorney’s fees and costs
in respect of this matter within twenty (20) days from the date of this order;
3. Hendrik Jacobus du Preez shall furnish an affidavit in which he discloses the
amount of money paid to Mr Michael Senekal or Michael Senekal Attorney as
attorney’s fees and costs, either by himself or on his behalf by other person(s),
in respect of this matter within thirty (30) days from the date of this order; and
21
4. Costs of the activities relating to 2 and 3 hereof shall be borne by Mr Michael
Senekal and/or Michael Senekal Attorney.
[46.4] in the ex parte application of Ashleigh Evelyn Schoultz under Case Number: 2025-
178553, I make the order, that:
1. the application is postponed to 10 June 2026;
2. Mr Michael Senekal of Michael Senekal Attorney shall furnish an affidavit in
which he discloses the amount of money received as attorney’s fees and costs
in respect of this matter within twenty (20) days from the date of this order;
3. Ashleigh Evelyn Schoultz shall furnish an affidavit in which she discloses the
amount of money paid to Mr Michael Senekal or Michael Senekal Attorney as
attorney’s fees and costs, either by herself or on her behalf by other person(s),
in respect of this matter within thirty (30) days from the date of this order; and
4. Costs of the activities relating to 2 and 3 hereof shall be borne by Mr Michael
Senekal and/or Michael Senekal Attorney.
___________________________
Khashane La M. Manamela
Judge of the High Court
Dates of Hearing : 11,12 and 13 February 2026
Date of Judgment : 9 April 2026
Appearances:
For the Applicants (all cases) : Mr B Lee
Instructed by : Michael Senekal Attorney,
Ninapark, Pretoria