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REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, PRETORIA
Case Number: 104325/2023
(1) REPORTABLE: YES / NO
(2) OF INTEREST TO OTHER JUDGES: YES/NO
(3) REVISED: YES/NO
DATE 16/4/2026
SIGNATURE
In the matter between:
THE BODY CORPORATE OF GLENTUI Applicant
and
ELMO HAMILTON DAVIE Respondent
Delivered: This judgment was prepared and authored by the Judge whose name is
reflected and is handed down electronically by circulation to the Parties/their legal
representatives by email and by uploading it to the electronic file of this matter on
CaseLines. The date for hand-down is deemed to be 16 April 2026.
JUDGMENT
MANAMELA, AJ
2
Introduction
[1] This is an application for the final sequestration of the estate of the Respondent.
A provisional sequestration order was granted on 2 April 2024. The rule nisi was
subsequently removed from the roll on 12 August 2025, and the matter now
serves before this Court for determination on the merits of whether a final order
should be granted.
Background
[2] The Applicant, the Body Corporate of Glentui, a sectional title scheme
established under scheme number SS308/1984, seeks an order for the final
sequestration of the estate of the Respondent, Elmo Hamilton Davie, an adult male
and registered owner of Units 6 and 30 in the Glentui sectional title scheme, located
at 7[...] A[...] Street, Arcadia, Pretoria, Gauteng.
[3] The Respondent is a member of the Applicant by virtue of his ownership of
sectional units and is statutorily obliged to contribute to levies raised for the
administration, maintenance, and repair of the scheme. It is common cause that the
Respondent has failed, over an extended period, to comply with these obligations.
[4] At the time of the launch of the sequestration proceedings, the Respondent’s
arrears amounted to R70 224.18. Subsequent to this, the arrears escalated
significantly and now exceed R830 000, excluding ongoing levies, interest, and
costs.
[5] The Applicant obtained multiple judgments against the Respondent for unpaid
levies:
a. Case No. 47235/2015 – 3 November 2015
b. Case No. 24355/2020 – 15 June 2023
c. Case No. 24360/2020 – 15 June 2023
d. Case No. 20/2021 – 15 June 2023
[6] A warrant of execution was issued in respect of case number 47235/2015, and a
nulla bona return was issued by the Sheriff on 13 July 2023.
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[7] Despite attempts to recover the outstanding levies through execution steps,
including the issuance of a warrant of execution and attachment of movables, the
Applicant asserts that these efforts have been fruitless, leaving the Body Corporate
with no alternative but to seek sequestration.
[8] The Applicant further submits that the Respondent has committed acts of
insolvency under section 8(b) of the Insolvency Act, 1 and that the sequestration of
the Respondent’s estate would be to the advantage of creditors, including the Body
Corporate and other members of the sectional title scheme.
[9] This application is supported by the founding affidavit of Jacobus Christoffel
Erasmus, the CEO of Sectional Titles Portfolio Management (Pty) Ltd, who is duly
authorised to act on behalf of the Applicant. The Applicant emphasi ses the
importance of ensuring the financial stability of the Body Corporate to protect the
interests of compliant members and maintain the communal property. Mr Erasmus’
affidavit outlines the Respondent’s obligations, the history of non -compliance, and
the legal basis for the relief sought.
The Applicant has also provided the necessary security for costs and complied with
the statutory requirements under the Insolvency Act. On the return date of the
extended rule nisi, the Applicant seeks the final sequestration of the Respondent’s
estate on the basis of unpaid arrear levies totalling R830 097,67.
Issues of determination
The Court must determine whether the Applicant has established, on a balance of
probabilities, that:
(a) it is a creditor with a liquidated claim;
(b) the Respondent has committed an act of insolvency or is factually insolvent; and
(c) there is reason to believe that sequestration will be to the advantage of creditors.
The Applicant’s case
1 Act 24 of 1936.
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[10] The Applicant contends that the Respondent has committed acts of
insolvency under Section 8(b) of the Insolvency Act, by failing to satisfy the judgment
debts emanating from arrear levies and by failing to provide sufficient disposable
property to satisfy the debts.
[11] The applicant argues that the Respondent’s failure to pay these levies directly
impacts the financial stability of the Body Corporate and places an undue burden on
other compliant members of the sectional scheme, who are required to subsidise the
shortfall caused by the Respo ndent’s non-payment. This statutory obligation is
essential to ensure the proper functioning of the Body Corporate and the upkeep of
the communal property, which protects the interests and investments of all members.
[12] The Applicant further asserts that the sequestration of the Respondent’s
estate would be to the advantage of creditors, as it would enable the Body Corporate
to recover outstanding levies, ensure the proper maintenance of the sectional title
scheme, and alleviate the financial burden on other compliant members.
[13] The Applicant has complied with all statutory requirements under the
Insolvency Act, including the provision of security for costs and service of the
application on relevant parties, and now seeks the Court’s intervention to grant the
relief sought.
[14] The Applicant has demonstrated compliance with the requirements for service
as follows: the Notice of Motion, Founding Affidavit, Annexures, Notice of Set Down,
and Rule 41A Notice , Notice of Opposition to Mediation were served personally on
the Respondent, Mr. Elmo Hamilton Davie, at F arm Boschkloof 896, [...] M[...] Road,
St Francis Bay Road, on 7 March 2024 by the Sheriff , Hankey & Humansdorp, as
evidenced by the Return of Service annexed as Annexure "S 1." Additionally, the
Applicant ensured service of the relevant documents on the Master of the High Court
by hand on 6 March 2024, with proof of service annexed as Annexure "S3."
by hand on 6 March 2024, with proof of service annexed as Annexure "S3."
Furthermore, the Notice of Motion, Founding Affidavit, Annexures, and Notice of Set
Down were served on the Receiver of Revenue via email on 5 March 2024, as per
their stipulated service requirements, with proof of email delivery annexed as
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Annexure "S4." These actions confirm the Applicant's adherence to the procedural
rules governing service in this matter.
Respondent’s basis of opposition
[15] The Respondent, Mr Elmo Hamilton Davie, opposes the granting of a final
sequestration order. He disputes that he has committed an act of insolvency in terms
of section 8(b) of the Insolvency Act and contends that the Applicant has materially
misrepresented the relevant facts relating to service, execution, and his financial
position.
[16] The Respondent states that he formally changed his domicilium address in
October 2011 to his residence at Farm Boschkloof, [...] M[...] Road, St. Francis Bay,
and that this notification was communicated in writing to the Applicant’s then
managing agent, Huurkor Admin. He avers that, since that date, all statements,
invoices and correspondence issued by the Applicant have been consistently
addressed to the new domicilium. He accordingly disputes that the service of
summonses and notices at the sectional units was valid, and asserts that he
remained unaware of the default judgments , save for one judgment , until receipt of
the sequestration application.
[17] The Respondent disputes that the Sheriff executed the writ at the address of
the sectional title unit. He maintains that the execution occurred at his correct
domicilium and residential address.
[18] He further disputes the existence of a lawful nulla bona return. According to
him, when the Sheriff attended, he pointed out scaffolding and other building material
for attachment and advised the Sheriff that additional items were available at various
building sites. He also informed the Sheriff that he owned two immovable properties.
The Sheriff, he states, declined to proceed further, indicated that he did not have
time to inspect other locations, took the Respondent’s contact details, and left
without reverting.
[19] The Respondent avers that he never received notice of the release of any
[19] The Respondent avers that he never received notice of the release of any
attached items, nor any indication that the goods identified were insufficient to satisfy
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the writ. He thus disputes that the execution process produced a nulla bona return or
established an act of insolvency.
[20] The Respondent asserts that he is not factually insolvent. He owns two
sectional title units with significant equity based on valuations obtained by his legal
representatives. He further holds a matured annuity valued at approximately
R675 000. He contends that his assets exceed his liabilities and that the Applicant,
as a secured creditor in respect of levies, improperly seeks to use sequestration
proceedings as a debt-collection mechanism.
[21] He submits that the Applicant has failed to demonstrate the absence of
realisable property and argues that the sequestration application is neither
necessary nor appropriate.
[22] In addition, t he Respondent claims that the sequestration proceedings have
been launched for an ulterior purpose. He highlights the involvement of Mr Danie
Muller, chairperson of the body corporate and the individual who signed the
sequestration resolution. The Respondent refers to a failed transaction in which Mr
Muller allegedly attempted to purchase a property linked to the Respondent, which
ended acrimoniously. He contends that this history underlies the current proceedings
and is aimed at acquiring his immovable property through a sequestration process
rather than execution.
[23] The Respondent seeks condonation for the late filing of his answering
affidavit. He explains that he relied on his erstwhile attorneys, appointed through a
legal insurance provider, and that they failed to act timeously despite repeated
follow-ups. He describes numerous unsuccessful attempts to obtain updates,
culminating in his unrepresented attendance at court on the return date. He
terminated their mandate thereafter and sought immediate legal assistance.
[24] He submits that the delay was neither deliberate nor reckless, that he has
reasonable prospects of success on the merits, and that no prejudice will accrue to
reasonable prospects of success on the merits, and that no prejudice will accrue to
the Applicant or creditors should condonation be granted.
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Legal framework
[25] For a final sequestration order, an applicant must satisfy the Court on a
balance of probabilities, as opposed to the prima facie standard applicable to
provisional sequestration proceedings. This distinction was articulated in
Mercantile Bank (a division of Capitec Bank Limited) v Ross [2021] ZAGPJHC
149 at paragraph 41.
[26] It is trite law that t o be granted a final sequestration order under the
Insolvency Act, the Applicant must prove legal standing , a liquidated claim, the
existence of a valid and enforceable claim, an act of insolvency or factual insolvency
and an advantage to creditors. For compulsory sequestration of a debtor’s estate,
the applicant must show that: (a) The applicant has established a claim which
entitles the applicant to apply for the sequestration of the debtor’s estate. (b) The
Respondent debtor is actually/factually insolvent, i.e., his/her liabilities, fairly
estimated, exceed his/her assets, fairly valued; or the debtor has committed an act of
Insolvency. (c) There is reason to believe that it will be to the advantage of creditors
if the debtor’s estate is sequestrated.
Legal standing and liquidated claim
[27] The Applicant must show that it is a creditor with a liquidated claim of not less
than R100.This principle is affirmed in De Waard v Andrew & Thienhaus Ltd 2 and
reinforced in Investec Bank Ltd v Mutemeri .3 The Applicant has produced proof of
four unsatisfied judgments arising from unpaid levies. These judgments constitute
liquidated claims well in excess of the statutory minimum. The Applicant therefore
clearly has standing to seek sequestration.
Existence of a valid and enforceable claim
[28] The Applicant must demonstrate the existence of a liquidated claim, ordinarily
by producing a judgment debt or other unequivocal proof of indebtedness.
Default judgments for unpaid sectional title levies constitute such liquidated
claims and ordinarily suffice to establish standing in sequestration proceedings.
claims and ordinarily suffice to establish standing in sequestration proceedings.
This requirement has been articulated in cases such as Kalil v Decotex (Pty) Ltd
and Another , subject to the well -established principle that sequestration
2 1907 TS 727.
3 [2009] ZAGPJHC 64; 2010 (1) SA 265 (GSJ) at para 31.
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proceedings must not be permitted to be used as a mere debt -collection
mechanism, as cautioned by the Constitutional Court in Stratford and Others v
Investec Bank Ltd and Others 2015 (3) SA 1 (CC).
Act of insolvency or factual insolvency
[29] The Applicant must prove, on a balance of probabilities, that the Respondent
has committed an act of insolvency as contemplated in section 8(b) of the
Insolvency Act 24 of 1936, including a failure to satisfy a judgment or to point out
sufficient disposable property to satisfy such judgment4.
Advantage to creditors
[30] The Applicant must satisfy the Court that sequestration will be to the
advantage of creditors. It is settled law that even a modest advantage will suffice,
provided that such advantage is real and not speculative, as explained in Meskin
& Co v Friedman . That principle, however, does not operate in the abstract. In
Body Corporate of Old Trafford v Muronzi , the Court refused to grant a final
sequestration order and emphasised that, where the applicant is a sole or
dominant creditor, it must demonstrate a tangible advantage arising from
sequestration which would not be achieved through ordinary execution
proceedings. In considering advantage, the Court must therefore examine the
particular facts of each case, including the nature of the debt, the history of
non-payment, the efficacy of execution, and the broader impact on other
creditors. More recently, in Body Corporate Acubens v Foforane , the Court
recognised that in the context of a sectional title scheme, persistent non -payment
of levies and failed execution attempts may render sequestration advantageous,
not only to the body corporate but also to the concursus creditorum, provided the
statutory requirements are satisfied.
Analysis
[31] This Court is required to determine whether the Applicant has discharged the
onus of proving, on a balance of probabilities, that ( a) it holds a liquidated claim
onus of proving, on a balance of probabilities, that ( a) it holds a liquidated claim
against the Respondent; ( b) the Respondent has committed an act of insolvency or
4 See Kalil v Decotex (Pty) Ltd and Another 1988 (1) SA 943 (A) at 979C–E; Mars: The Law of Insolvency in
South Africa 10 ed at 121–123.
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is actually/factually insolvent; and (c) there is reason to believe that the sequestration
of the Respondent’s estate will be to the advantage of creditors.
[32] The Court has considered the Founding Affidavit, the Respondent’s
Answering Affidavit, and the Applicant’s detailed Replying Affidavit. The replying
papers directly challenge the core allegations made by the Respondent and place
material evidence before the Court regarding service, indebtedness, arrear levies,
the nulla bona return, and alleged solvency.
[33] It is common cause that four separate judgments were obtained against the
Respondent between 2015 and 202 3 for arrear levies owed to the Body Corporate.
These judgments remain unsatisfied. In its replying papers, the Applicant further
demonstrates that the levy indebtedness on both units has escalated dramatically
and presently totals more than R830 000.
[34] The Applicant therefore clearly qualifies as a creditor with a liquidated claim.
The Respondent’s vague assertions that the indebtedness is “disputed” are not
supported by either evidence or any explanation for non -payment extending over
several years.
[35] The Respondent alleges that the summonses in respect of the judgments
were served at the sectional title units rather than his domicilium. The replying
affidavit places this allegation firmly in dispute. The Applicant attaches all four
sheriff’s returns of service, demonstrating that each summons was served at the
address chosen by the Respondent: Farm Boschkloof, [...] M[...] Road, St Francis
Bay. One of the summonses was served personally on the Respondent. I find t he
Respondent’s assertions in this regard false and misleading. No objective evidence
was produced to support his contention that the Applicant persisted in using an
outdated address. To the contrary, the returns of service demonstrate substantial
compliance with both rule 4(1) and the management rules applicable under the
Sectional Titles Schemes Management Act.
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[36] In light of the reliable documentary evidence, the Court is satisfied that the
underlying judgments were properly served and that the Respondent was aware or
reasonably ought to have been aware of the debts giving rise to those judgments.
[37] With regards to t he warrant of execution and the nulla bona return, it is
apparent that t he Respondent attempts to dispute the validity of the sheriff’s nulla
bona return, contending that the sheriff did not inspect all assets and failed to return
after a promised follow -up. The replying affidavit, however, clarifies the matter. The
sheriff’s return attached to the founding papers is unequivocal: movable assets with
an estimated value of R7 000 were identified, and these were insufficient to satisfy
the judgment debt.
[38] The Respondent does not dispute that the sheriff personally served him with
the warrant of execution, nor does he explain why no attempt was made to satisfy
the judgment debt , except for a payment of R15,027.00 . His version that the sheriff
declined to perform his duties is uncorroborated and inconsistent with the formal
return. A sheriff’s return of service is prima facie correct and may only be impugned
with clear, convincing evidence. No such evidence has been produced. On the
totality of the evidence, the Court is satisfied that the sheriff’s return constitutes a
valid nulla bona return for purposes of s 8(b) of the Insolvency Act.
[39] The Respondent contends that he is not factually insolvent because he owns
two immovable properties and a matured annuity. The Respondent places reliance
on informal Windeed -generated valuations but presents no sworn valuation,
inspection report, or market appraisal. The Applicant’s reply corrects these
deficiencies and notes that the Respondent also fails to disclose the true condition of
the properties, any other creditors, or any liabilities apart from the Applicant’s claim.
In addition, the Applicant de monstrates that the total arrear levies now exceeding
In addition, the Applicant de monstrates that the total arrear levies now exceeding
R830 000 alone exceed the alleged free residue in the properties even if the
Respondent’s valuations were accepted at face value. The Respondent provides no
credible plan to settle these arrears, does not explain the continued non -payment
despite rental income, and offers no evidence of available cash flow.
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[40] The Court accepts the Applicant’s contention that the Respondent is unable to
pay his debts as they fall due, and that his assertion of solvency is unsubstantiated
and not reasonably supported.
[41] The Respondent’s levy arrears continue to escalate monthly. The replying
affidavit illustrates that the continued non -payment places a burden on other owners
in the scheme. In contrast, sequestration will halt the accumulation of further debt,
allow the properties to be sold by the trustee, and enable creditors to share pro rata
in the proceeds of the estate. In that regard, the Court is satisfied that sequestration
will be to the advantage of creditors.
[42] The Respondent seeks condonation for the late filing of his answering
affidavit, attributing the delay to the failures of his former legal representatives.
Given the serious consequences attendant upon sequestration proceedings and
the importance of allowing disputes of substance to be fully ventilated, the Court
is satisfied that condonation should be granted. The Applicant’s replying affidavit
was likewise delivered out of time, and condonation for the late filing thereof is
granted on the same basis. The granting of condonation in respect of either
affidavit does not, however, cure the substantive deficiencies in the Respondent’s
case.
[43] The Respondent advances allegations concerning the chairperson of the body
corporate that cannot be overlooked . It is evident that t he Applicant categorises
these allegations as irrelevant. The Respondent’s speculation about motive does not
negate the existence of valid judgments, his failure to pay arrear levies, or the
sheriff’s nulla bona return. In that regard t he Court accordingly finds these
allegations immaterial to the statutory requirements for sequestration.
Conclusion
[44] The Applicant has satisfied the statutory requirements for final sequestration.
A final order for the sequestration of the Respondent’s estate is accordingly granted.
IT IS ORDERED THAT
IT IS ORDERED THAT
1. the provisional sequestration order herein is confirmed, and the
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estate of the Respondent, ELMO HAMILTON DAVIE, with Identity Number:
6[...], is placed under final sequestration and
2. the costs of this application be costs in the sequestration.
_________________________
P N MANAMELA
ACTING JUDGE OF THE HIGH COURT
GAUTENG DIVISION, PRETORIA
Date of hearing: 13 October 2025
Judgment delivered: 16 April 2026
APPEARANCES:
Counsel for the Applicant: Adv Z Schoeman
Attorneys for the Applicant: Kleynhans and Swanepoel Attorneys
Counsel for the Respondent: Adv AR van der Merwe (trust account advocate)