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in compliance with the law and SAFLII Policy
REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, JOHANNESBURG
Case No: 59040/2024
1. REPORTABLE: NO
2. OF INTEREST TO OTHER JUDGES: NO
3. REVISED: NO
In the matter between:
ABSA BANK LIMITED
Applicant
And
BHAVANISHA PILLAY N.O First Respondent
KEVIN VALLOO N.O. Second Respondent
KOBILAN PILLAY N.O. Third Respondent
JUDGMENT
This judgment was handed down electronically by circulation to the parties’ legal
representatives by e-mail and uploading it onto the electronic platform. The date and
time of hand-down is deemed to be 10h00 on Tuesday 28 April 2026.
COOKE AJ:
1. The respondents are the trustees of the Valloo Family Trust (“ the Trust”). The
Trust holds the following immovable properties:
1.1. Erf 1[…] H[… ] E[… ] (valued at approximately R 15 million);
1.2. Erf 1[…] H[… ] E[… ] (valued at approximately R 14,5 million);
1.3. Erf 7[…] S[…] H[… ] E[…] (valued at approximately R 6 million);
1.4. Unit […] I[… ] E[… ] (valued at approximately R 5 million)
(“the Properties”).
2. I[…] E[…] is a commercial building, while the Houghton properties are
residential:
2.1. Erf 1 [… ] is inhabited by the second respondent, his partner, three
children, various members of their domestic staff and related persons;
2.2. Erf 1[…] is inhabited by the first respondent and her son; and
2.3. Erf 7[…] is a penthouse property . The papers are not clear on whether
or not it is occupied.
3. The applicant (“the Bank”) holds various mortgage bonds over the Properties,
suretyships by the first and second respondents in their personal capacities
and a guarantee by an entity called GTS Petroleum (of which no mention
whatsoever was made at the hearing before me). There is some justifiable
concern by the Bank of the value of the suretyships, particularly as it is the
Trust’s version that correspondence on which the Bank relies to evidence an
act of insolvency by the Trust was sent in the first respon dent’s personal
capacity.
4. Mr Cohen appeared on behalf of the Trust. He confirmed, as is borne out by
the papers, that there is no real dispute in the following respects:
4.1. the Bank made a suite of financial facilities available to the Trust;
4.2. all told, the Bank had made advanced nearly R 50 million to the Trust in
accordance with the terms of the agreements between them;
4.3. during 2022 the Trust failed to make certain repayments as they
became due to the Bank and, by 2023, was in arrears in respect of
every facility;
4.4. in consequence of the Trust’s default, each of the debts has been
called up by the Bank, the cumulative sum of which is approximately
R 63 million; and
4.5. the Trust cannot repay the debt owed to the Bank.
5. A significant portion of the affidavits are devoted to whether or not the Trust has
committed an act of insolvency. It is not necessary to consider the parties
competing versions in this regard as it is uncontentious that:
5.1. the Trust is unable to repay the debt it owes to the Bank; and
5.2. the Trust has an excess of liabilities over assets by, on a version most
favourable to the Trust, at least R 10 million.
6. In the circumstances, and regardless of whether an act of insolvency has been
committed, the jurisdictional requirement of section 9(1) of the Insolvency Act
24 of 1936 has been met. That is, on any metric, the Trust is insolvent.
7. The Trust’s only real defence is that, in seeking a sequestration, the Bank
seeks to avoid the protective mechanism of Uniform Rule 46A. In support of the
contention, the Trust’s heads of argument refer to two judgments that are
contended to support its position. They are:
7.1. Body Corporate of Old Trafford v Muronzi (016676/2023) [2024]
ZAGPPHC 623 (21 June 2024); and
7.2. Waterkloof Boulevard Homeowners Association (Association
Incorporated under Section 21) v Yusuf and Another (028945/2022)
[2023] ZAGPPHC 737 (28 August 2023).
8. The decision in Waterkloof was referred to, and appears to underpin the finding
in Old Trafford. The facts of both cases are similar: a homeowner faced
sequestration
1 by their lone creditor – in each case the body corporate – over
unpaid levies and like dues which were relatively small, against property values
that were fairly substantial.
9. In finding that the Court’s discretion would be best exercised by refusing to
grant an order for sequestration because there was no advantage to creditors
in the circumstances of those cases, the courts made reference to and relied
on:
9.1. section 15B(3)(a)(i)(aa) of the Sectional Titles Act 95 of 1986 and the
preference it affords to a body corporate on execution of a property. In
view of that preference, there was found to be no real advantage to a
sole creditor who had a statutory preference in any event; and
1 Provisionally in Waterkloof and finally in Old Trafford
9.2. the apparently heightened costs of a sequestration.
10. This case is different to those in Waterkloof and Old Trafford in a number of
respects. In particular, in this case:
10.1. the applicant is a bank and not a body corporate with a statutory
preference;
10.2. there are a number of creditors who are likely to benefit, not just one;
10.3. the assets of the Trust are comprised of both commercial and
residential property, and not just a respondent’s primary residence;
10.4. there was, at the instance of the I […] E[…] B[…] C[…] , an attempted
execution of the I [… ] E[…] property. However, no bids were received
for it and the property remains unsold;
10.5. the debt owed by the Trust exceeds R 50 million (at least) – which is a
far cry from the trifling debt that was owed in Waterkloof and Old
Trafford;
10.6. the value of the Properties is, on any party’s version, eclipsed
significantly by the debts owed by the Trust; and
10.7. the Bank seeks to sequestrate an inanimate being – the Trust – which
is the owner of the Properties , whereas in the cases relied on by the
Trust, the natural person sought to be sequestrated was the owner of
the home in which they resided.
11. Mr Cohen sought to overcome the latter point of distinction by referring me to
the decision in Bestbier v Nedbank Ltd.2 There the Constitutional Court held
that the application of Uniform Rule 46A is not affected where a trust owns
immovable property in which a natural person resides. The Court found:3
As stated above, whether property can be classified as 'residential immovable
property' is determined by the characteristics and actual use of the property. It does
not matter that the judgment debtor is not herself occupying the property. It also
does not matter that the judgment debtor is a trust. If a trust owns a residential
house, it is 'residential immovable property', if the beneficiaries reside in it, even
though the trust itself as a legal entity cannot reside in the property.
12. While the decision in Bestbier clarified the ambit of applicability of Uniform Rule
46A where execution is sought, it did not consider the position in a
sequestration and so is not authority for the proposition advanced. Accordingly,
and as the Supreme Court of Appeal found in Brummer v Gorfil Bros Inv (Pty)
Ltd,
4 unless a demonstrable abuse is shown, a creditor is entitled to exercise
the lawful and legitimate remedies that are available to it. As there is no
demonstrable abuse by the Bank in this case, sequestration is both a legitimate
and lawful remedy.
13. A further consideration that militates against affording the respondents (as
occupiers of the Properties) the protective measure of Uniform Rule 46A is that
they, through the Trust, had the means and wherewithal to raise R 60 million in
debt that funded the purchase of R 40 million in luxury properties. This fact
immediately excludes them from the category of litigant afforded protection,
and rightly so, in Jaftha.
5
2 2024 (4) SA 331 (CC)
3 Bestbier para 25
4 1999 (3) SA 389 (SCA) at 418A
5 v Schoeman and Others; Van Rooyen v Stoltz and Others 2005 (2) SA 140 (CC)
14. While our courts have been careful to ensure that the socio- economic rights of
truly indigent people are not unduly trammeled, the protections crafted by the
legislature and rule makers, and widely implemented by the judiciary, were not
designed to be an opportune shield behind which financially savvy people, and
the structures they employ to protect their bounty of assets, find reprieve from
execution.
15. What is all too often overlooked is that access to finance is the lifeblood of an
economy. Banks are the gatekeepers of that lifeblood and determine (in line
with applicable legislation) the conditions under which, and to whom, the gates
may be opened for finance to flow. In a legislative framework that hinders
contractual enforcement and collateral seizure in instances of default , legal risk
is increased and the number of non-performing loans rises. An increase in non-
performing loans, coupled with a restrictive attitude to debt enforcement,
necessitates that banks adopt a cautious approach and policies that restrict the
grant of finance. This increases the cost of credit and limits its supply to the
borrowing public at large.
16. A limited credit supply and bolstered costs of finance are inimical to the plight of
many hard-working South Africans who, given the chance of accessing credit
from an established bank, may well use that privilege to buy property to house
their family, or start small businesses that feed the mouths of people who
depend on them. The dignity that comes with owing a home of your own, or
from building a business that sustains a family, must not be disregarded as the
people who sense that accomplishment often work hardest to attain it, and
thereafter maintain it.
17. These are the very people whose interests are unwittingly overlooked each
time tha t a c ourt comes to the assistance of an undeserving defaulter. In a
single instance, the application of a protective measure such as Uniform Rule
46A might seem to have little impact on the system at large, and greatly benefit
the individual respondent who, armed with a tale of woe, stands before a judge
and pleads ad misericordiam. However, that line of thought is a trap into which
Courts must be cautious not to fall, or be l ured. Given the sheer number of
bank related enforcement applications that come before courts on a daily basis,
the potential for undue assistance given to a string of what are thought to be
individual respondents, quickly piles up and becomes a systemic risk factor.
18. While courts must undoubtedly be unwavering in the application of protective
measures in appropriate cases, they must also be mindful of the unseen
consequence of being too liberal in their protection where it is not truly
warranted. In cases where an adverse consequence may befall a respondent,
the point of departure is not, and must not be, that every protective measure
must be employed, merely because the applicant is a bank. By all accounts,
and no doubt a bank’s own, being repaid what was promised to i t is greatly
preferable to the costly endeavor of chasing a debt and receiving only cents in
the rand many years later . Ironically, and again an underappreciated
consequence is that this too increases the cost of credit and tightens the banks’
propensity to advance it.
19. This matter is a prime example of how a bank would much rather have had the
money owed to it, and avoided these proceedings entirely. Indulging the Trust’s
request to sell the Properties by private treaty, the Bank appointed a realtor to
secure a sale. The Trust blithely bemoans the Bank’s efforts, but made none of
its own. In all this time, the Bank receiv ed no further payment from the Trust
while it waited.
20. There is no merit in the Trust’s only defence. The significant bounty of assets
held by the Trust is an advantage to the Trust’s creditors, and one which the
Bank evidently prefers to the Trust’s persistent non- payment that it has
endured for too long.
I make the following order:
1. The Valloo Family Trust (I[…] ) is provisionally sequestrated;
2. The respondents, and any persons having an interest in the matter, are
called upon to advance reasons and show cause why the Court should
not order the final sequestration of the Valloo Family Trust (I […] ) at a
hearing on Monday 27 July 2026 at 10:00 or so soon thereafter as
counsel may be heard.
_______________________________
M J COOKE
ACTING JUDGE OF THE HIGH COURT
GAUTENG, JOHANNESBURG
DATE OF HEARING 21 April 2026
DATE OF JUDGMENT 28 April 2026
APPLICANT’S COUNSEL R Scholtz
APPLICANT’S ATTORNEYS Lowndes Dlamini Attorneys
RESPONDENT’S COUNSEL S Cohen
RESPONDENT’S ATTORNEYS Maree Attorneys Incorporated