SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document
in compliance with the law and SAFLII Policy
IN THE HIGH COURT OF SOUTH AFRICA
(WESTERN CAPE DIVISION, CAPE TOWN)
Case number: 2025-056752
In the matter between: -
FLEET AFRICA (a division of
SUPERGROUP AFRICA (PTY) LTD) Applicant
and
MAHMOOD KHATIB
Identity number: 7[...]
Residential address: 3[...] K[...] Road,
Gatesville, Western Cape First respondent
ZAHIERA BANDERKER
Identity number: 7[...]
Residential address: 3[...] K[...] Road,
Gatesville, Western Cape
(cited in her capacity as the wife of Mahmood Khatib,
married in terms of Muslim Rites) Second respondent
Coram: Van Zyl, AJ
Heard on: 12 May 2026
Judgment: : 19 May 2026
Summary: Application for provisional sequestration – citation of applicant as “a
division” of a juristic person – whether competent to establish that debt owed to it as
contemplated in section 10(a), read with section 9(1), of Insolvency Act 24 of 1936 –
citation acceptable in the circumstances, especially as no prejudice to the first
respondent – provisional order of sequestration granted
___________________________________________________________________
ORDER
1. The first respondent’s estate is placed in p rovisional sequestration in the
hands of the Master of this Court.
2. A rule nisi is issued calling upon the respondents and all interested persons
to show cause, if any, on Thursday, 6 August 2026 on the semi-urgent roll at
10:00 or as soon thereafter as counsel may be heard, why:
2.1. the first respondent’s estate should not be placed in final
sequestration;
2.2. the costs of this application should not be costs in the administration
of the first respondent’s estate.
3. A copy of this provisional order of sequestration must be served:
3.1. upon the first respondent at 3[...] K[...] Road, Gatesville, Cape Town,
and on the first respondent’s attorneys via email at r[...];
3.2. upon the second respondent at 3[...] K[...] Road, Gatesville, Cape
Town, and on the second respondent’s attorneys via email at r[...];
3.3. upon the South African Revenue Service at 1[...] L[...] L[...] Street,
Cape Town;
3.4. upon the first respondent’s employees, if any, and upon any trade
union to which such employees may belong, by affixing a copy of the
order to any notice board to which the employees have access inside
the first respondent's premises, or if there is no access to the premises
by the employees, by affixing a copy to the front gate, where
applicable, failing which to the front door of the premises from which
the first respondent conducted any business at the time of the
institution of the application for sequestration.
JUDGMENT
VAN ZYL, AJ:
Introduction
1. The applicant seeks the provisional sequestration of the first respondent’s
estate.1
2. Section 10 of the Insolvency Act 24 of 1936 provides as follows:
“If the court to which the petition for the sequestration of the estate of a debtor has
been presented 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,
it may make an order sequestrating the estate of the debtor provisionally.”
1 The notice of motion seeks a final sequestration order, but counsel were agreed during oral
argument that a provisional order is the appropriate relief to be sought at this stage.
3. It is undoubtedly so, as counsel for the first respondent2 emphasised, that the
grant of an order sequestrating a person’s estate is a drastic measure. It is
for this reason that the argument on the respondents’ behalf centred on what
may be described as a technical issue, but which is nevertheless
fundamental in determining whether the applicant is a creditor as
contemplated in section 9(1), read with section 10(a), of the Insolvency Act.3
The issue entails the manner in which the applicant is cited. Counsel for the
first respondent acknowledged in oral argument that, should the court find in
favour of the applicant on this point, the grant of a provisional order should
follow.
4. I briefly set out the background to this application before considering whether
the applicant’s citation torpedoes its case. The facts are largely common
cause.
The applicant’s claim
The arbitration award
5. The applicant’s claim arises from an arbitration award made on 3 November
2022 under the Arbitration Act 42 of 1965. The award was made an order of
court on 31 January 2024 , pursuant to the provisions of section 31 4 of the
Arbitration Act.
2 The second respondent is joined to these proceedings in compliance with this court’s
Consolidated Practive Note 30(1) , as she is deemed to be married out of community of
property to the first respondent (with reference to the orders granted in Women's Legal
Centre Trust v President of the Republic of South Africa and others 2022 (5) SA 323 (CC)).
No relief is sought against her.
3 “9 Petition for sequestration of estate
(1) A creditor (or his agent) who has a liquidated claim for not less than fifty pounds
[R100], … against a debtor who has committed an act of insolvency, or is insolvent,
may petition the court for the sequestration of the estate of the debtor.”
4 “31 Award may be made an order of court
(1) An award may, on the application to a court of competent jurisdiction by any party to
(1) An award may, on the application to a court of competent jurisdiction by any party to
the reference after due notice to the other party or parties, be made an order of
court.
(2) …
(3) An award which has been made an order of court may be enforced in the same
manner as any judgment or order to the same effect.”
6. The events leading up to the grant of the court order were as follows: On 10
May 2016, the applicant and an entity known as MK Exotics CC (“MK”)
concluded a lease agreement in terms of which MK leased vehicles from the
applicant. The first respondent signed a suretyship in terms of which he
bound himself as surety and co-principal debtor together with MK.
7. When MK defaulted on its obligations under the lease agreement, the
applicant, as plaintiff, issued summons out of the High Court against MK and
the first respondent, defendants, for the sum of R5 999 706,44. The
defendants raised a special plea contending that the applicant should have
proceeded by way of arbitration, as provided for in the lease agreement. The
applicant accordingly applied for the stay of the action and referred the matter
to arbitration. The defendants opposed the stay application (despite the fact
that they had been the ones raising the issue) but it was granted , and the
matter proceeded to arbitration.
8. MK and the first respondent did not play any meaningful part in the arbitration
despite being invited to do so. 5 On 3 November 2022 the arbitrator granted
an award in the applicant’s favour jointly and severally against MK and the
first respondent for R5 999 706,44.
9. The applicant a pplied to have the award made an order of court. The
application was opposed , and a counter -application was brought , aimed at
having the award set aside on the grounds that the arbitrator had misdirected
himself. MK and the first respondent failed to deliver heads of argument. On
the day of the hearing of the applications they sought a postponement, which
was refused. O n 31 January 2024, the arbitration award was made an order
of court , and the counter-application was dismissed. 6 Well outside of the
prescribed time period, MK and the first respondent applied for leave to
5 The details of their conduct are set out in the arbitration award. It is not necessary to repeat
them.
them.
6 Unreported judgment ( coram Golden AJ) under case number 6455/2018, delivered on 31
January 2024.
appeal, which was refused. No further applications for leave to appeal were
brought.
The writ of execution issued against the first respondent
10. On 29 April 2024, a writ of execution in relation to movable property was
issued against the first respondent for payment of R5 999 706,44 , plus
interest and costs. The writ was served on the first respondent’s daughter on
30 September 2024 . Various movable assets were attached, including
household items and four motor vehicles.
11. Two weeks later, on 13 October 2024, the first respondent’s son stated on
affidavit that one of the motor vehicles was his (the son’s) and that the other
three belonged to a company of which he was the sole director, South African
Destination Management Company (Pty) Ltd (“SADMC”). He deposed to a
further affidavit on the same day, indicating that the household goods
attached at the first respondent’s house belonged to SADMC on the basis
that the latter had purchased the house and its content s from the fir st
respondent on 17 May 2024. A copy of the deed of sale was attached to the
affidavit, as well as a deed of transfer reflecting that the immovable property
was transferred to SADMC on 25 July 2024.
12. The first respondent alleges that the reason for the sale was that SADMC had
“on several occasions advanced monies which were to be paid to the
mortgagor”. He states that the “balance of the proceeds of the sale were used
to settle the mortgage bond ” - The property was thus allegedly sold to pay
two creditors, namely SADMC and the mortgagor.
13. On 12 February 2025, the Sheriff , on the applicant’s instructions, telephoned
the first respondent to enquire whether he had disposable property sufficient
to satisfy the judgment debt. The first respondent informed the Sheriff that he
owned nothing. On the same day , the first respondent provided the Sheriff
with an affidavit alleging that he does not possess or own any assets : “ I do
not possess or own any assets (movable or immovable) and have no assets
either movable or immovable registered in my name”.
The act of insolvency
14. Section 8 of the Insolvency Act provides for a variety of acts of insolvency,
but the applicant relies on section 8(b):
“Acts of insolvency
A debtor commits an act of insolvency-
…
(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; … “
15. As indicated, on 31 January 2024 t his court gave judgment against the first
respondent for R5 999 706,44 by making the arbitration award an order of
court. The first respondent ha s failed, on the demand by the Sheriff , to
satisfy that judgment , and has indicated to the Sheriff that he does not
possess any disposable property sufficient to satisfy it . The Sheriff has not
found assets sufficient to satisfy the judgment.
16. In his answering affidavit the first respondent denies that he committed an act
of insolvency. He says that the Sheriff served the writ on his daughter, not
him, which means that the demand was not to him, but to his daughter. This
may be so, but it cannot be denied that a demand was made to him
personally by the Sheriff on 12 February 2025. On that day the Sheriff
specifically enquired of the first respondent whether he had disposable
property sufficient to satisfy the judgment debt. Not only did the firs t
respondent tell the Sheriff that he did not have any disposable assets, he also
deposed to an affidavit to that effect. The affidavit admittedly does not record
the requisite details of the commissioner of oaths, and thus does not comply
with the provisions of the Justices of the Peace and Commissioners of Oaths
Act 16 of 1963 . It nevertheless followed after the first respondent’s oral
advices to the Sheriff. Whilst there w as some murmuring about th e
shortcomings of the affidavit in the first respondent’s heads of argument,
counsel sensibly did not press the issue in oral argument.
17. I am of the view that the applicant is, in the circumstances, entitled to a
finding that the first respondent has committed an act of insolvency under
section 8(b) of the Insolvency Act.
Is the applicant a creditor of the first respondent?
18. The first respondent says “no”. He relies, in this respect, on the issue of the
applicant’s description to which I have referred at the outset of this judgment.
As indicated, the fate of the application hinges on this aspect.
19. The first respondent points out that the applicant relies upon a judgment debt.
The judgment, and the order issued pursuant thereto, reflects the applicant
as “Fleet Africa (a division of Supergroup Africa (Pty) Ltd) ”. The claimant in
the arbitration was similarly “Fleet Africa, a division of Supergroup Africa (Pty)
Ltd”. In the heading to all of the applicant’s papers in this application , the
applicant is stated to be “Fleet Africa (a division of Supergroup Africa (Pty)
Ltd)”. In the founding and replyin g affidavits it is stated that Supergroup
Africa (Pty) Ltd is the applicant.
20. The upshot, so the argument goes, is that the applicant’s founding papers do
not reflect a judgment in favour of Supergroup Africa (Pty) Ltd, and
accordingly the applicant has failed to satisfy the statutory requirement set
out in section 10(a) of the Insolvency Act. In addition, the first respondent
argues that the writ of execution was issued at the behest of “ Fleet Africa (a
division of Supergroup Africa (Pty) Ltd)”, and not Supergroup (Pty) Ltd. It was
thus issued on behalf of a non -existent entity , and cannot satisfy the
thus issued on behalf of a non -existent entity , and cannot satisfy the
requirements of section 8(b) of the Insolvency Act.
21. The first respondent’s counsel referred to a series of cases in which the
citation of a plaintiff as a “division” was , for the most part, deprecated. I set
them out chronologically, as counsel did during argument. The Uniform
Rules do not make any specific provision for the description of parties to
applications. Counsel argued the matter on the basis that t he citation of
parties to an application should be approached in the same way as parties to
an action. 7 What is clear, in any event, is that the applicant’s locus standi
should appear from the founding papers, including, for present purposes, its
status as creditor of the first respondent.
22. The judgment in Spoornet v Watson8 was delivered in 1991, but only reported
in 1994. The plaintiff was described as “ Spoornet, ‘n divisie van Transnet
Bpk”. The court held as follows in this respect:
“It is common cause that the words '. . . 'n publieke maatskappy . . .' refer to
Transnet Bpk and not to Spoornet. This is furthermore clear when reference is had
to the written contract on which the claim is based. It is a contract between
'Spoornet, 'n divisie van Transnet' and the defendant, …
Rule 17(4)(b) of the Uniform Rules of Court provides:
'17(4)
Every summons shall set forth -
. . .
(b) the full names, sex and occupation and the residence or place of
business of the plaintiff, and where he sues in a representative capacity,
such capacity.’
… It is of general application and includes natural persons, companies and those
plaintiffs contemplated in Rule 14. Indeed it covers every plaintiff who has the right in
law to sue.
In my view the object of Rule 17(4)(b) is to require every plaintiff to furnish sufficient
details which enable the Court and the defendant to establish whether or not the
plaintiff has the requisite locus standi to sue.
The 'associations', 'firms' and 'partnerships' referred to in Rule 14 are not, because
of the implications of that Rule, excused from complying with Rule 17(4)(b). To
of the implications of that Rule, excused from complying with Rule 17(4)(b). To
7 See Cilliers et al Herbstein & Van Winsen ’s The Civil Practice of the High Courts of South
Africa (online version, RS 3, 2025) at pp 4-4 to 4-5.
8 1994 (1) SA 513 (W). See the discussion at 514C-515C.
simply describe a plaintiff as, for example, 'Eureka', without stating that it is an
association or a firm will simply not be in compliance with Rule 17(4)(b).
Reverting to the instant matter the question must be posed, what is Spoornet. A
division of Transnet Bpk is not a juristic person. …
…
I repeat that, ex facie this summons, Spoornet is an unidentified thing which certainly
cannot be accepted as a juristic person.”
23. In Volkskas Bank (’n divisie van Absa Bank Beperk) v Pietersen 9 (a judgment
of this Division) the court was seized of the return date of a provisional order
of sequestration. The court expressed the view that the citation of the
applicant as “Volkskas Bank, a division of Absa Bank Limited, a registered
commercial bank …” was not competent:10
“Sodat daar nie gedink word dat ek die sitering van die applikant goedkeur nie, wil ek
vlugtig opmerk dat, as dit nie vir die feit was dat daar reeds 'n voorlopige
sekwestrasiebevel teen die respondent verleen is en dat die respondent nie beswaar
gemaak het teen die sitering (en trouens erken het dat hy die skuldenaar van die
applikant is nie), ek ernstig sou oorweeg het om die aansoek van die hand te wys op
grond daarvan dat daar in ons reg geen regspersoon soos 'n divisie bestaan nie. As
Absa Bank Bpk wil beweer dat hy handeldryf as Volkskas Bank dan moet hy hom in
verstaanbare taal uitdruk, en nie maak asof Volkskas Bank 'n regspersoon is nie; of
as Volkskas Bank nog steeds 'n maatskappy is en die uitdrukking 'divisie' dalk
bedoel word om na 'n filiaal te verwys, moet hy natuurlik as 'n maatskappy met 'n
aandelekapitaal of deur garansie beperk gesiteer word.”
24. The court thus pointed out that in South African law there is no legal persona
such as a division, and that if a company wished to allege that it carried on
business under another name then it should do so in comprehensible
language and not create the impression that the other name is a legal
language and not create the impression that the other name is a legal
persona. As there was already a provisional sequestration order in place , and
as the respondent had not objected to the citation of the applicant, a final
order was granted but the court commented that it would otherwise have
9 1993 (1) SA 312 (C).
10 Volkskas Bank supra at 314A-C.
seriously considered dismissing the application on the ground that the
applicant is not a juristic person.
25. The court in Two Sixty Four Investments (Pty) Ltd v Trust Bank 11 declined to
follow the same approach:
“It is sought, in the first instance, to set aside the judgment on the ground that the
respondent did not have locus standi to institute the proceedings. In the summons
the respondent was cited as follows:
'Trust Bank, 'n divisie van Bankorp Bpk, 'n maatskappy met beperkte
aanspreeklikheid, …..'
The argument was advanced that the use of the word 'division' postulated a portion
of a whole. It was then said that there could be no portion of a juristic person, that
such portion did not enjoy separate personality and therefore that the respondent, in
instituting action in the manner cited, did not have locus standi to institute the current
proceedings.
Under our law no juristic person is capable of being divided into a number of
separate juristic personalities, all forming a division of the whole. …
If in addition thereto it is said that the business is a division of a named company,
registered according to the laws of the Republic, there is only one possible further
inference and that is that the incorporated company trades through the medium of
the business under that particular trading name. Indeed, an incorporated company
may trade through the medium of a number of such businesses, each with a
separate trade name. I know of no rule of law which disentitles it from doing so.
None of them will thereby acquire separate corporate personality.
Until the introduction of the current Uniform Rules of Court, a business in this sense,
not being a juristic person, did not have locus standi to sue or be sued. … Now the
position is governed by Rule 14 of the Uniform Rules of Court. Subrule (2) provides
that a partnership, firm or association can sue or be sued in its own name. According
to subrule (1) 'firm' means a business carried on by the sole proprietor under a name
to subrule (1) 'firm' means a business carried on by the sole proprietor under a name
other than his own.
…
I have no doubt that the respondent falls squarely within the definition of 'firm'. It has
a sole proprietor, the name of which is set out in the citation in the summons as
'Bankorp Bpk'. … In my opinion, while the word 'division' may not be the most
11 1993 (3) SA 384 (W) at 385E-386E.
appropriate ('firm' or 'business' would have been better), it is perfectly clear that the
respondent is a business concern owned by the company Bankorp Bpk.”
26. In Absa Bank Limited v Blignault and another and four similar cases 12 the
plaintiff was cited as “ ABSA Bank Ltd (United Bank Division) ”. The court
referred13 with approval to the remarks made in Volkskas Bank, and held that
a division does not enjoy locus standi independently of, or apart from, the
body of which it is a constituent or by which it is owned. It held as follows:14
“There is of course no objection at all, from a business point of view, to each
division maintaining an identity distinct from another division, and each division
handling those affairs of the corporation to which it belongs which relate to the
division in question as long as it is understood that anything thus transacted by it is
an act of the corporation itself, and nothing less. Thus, if any such division needs to
institute legal proceedings, it can only do so if it institutes those proceedings in the
name of the corporation to which it belongs, and if it enjoys the authority of the
corporation so to do.
Rule 14 of the Uniform Rules of Court does not avail the 'plaintiff'. That Rule does
nothing more than allow a party to be cited in a business name. Implicit in at least
the provisions of subrules (1) and (2) is that the actual party which trades thus is the
actual plaintiff. The Rule does not purport to vest with locus standi something which,
but for the Rule, did not enjoy any.”
27. In Trust Bank v Dittrich ,15 in this Division, the appellant had been cited as “ a
division of Bankorp Ltd ”. The court held that Rule 14(2) did not remove the
necessity to give a full and correct description of the trading entity .16 It
nevertheless remarked as follows, indicating a trend towards a less
formalistic approach at the time:17
12 1996 (4) SA 100 (O). These matters concerned applications for default judgment. Judgment
12 1996 (4) SA 100 (O). These matters concerned applications for default judgment. Judgment
was handed down in 1992 but the matter was reported in 1996.
13 At 101F-I.
14 At 102B-D.
15 1997 (3) SA 740 (C) (judgment was handed down in 1995).
16 At 747G.
17 At 747B-G. My emphasis.
“Na my mening in die onderhawige gevalle, en ten spyte van die ietwat slordige
wyse waarop die eiser beskryf is, is dit tog na my mening duidelik dat daar altyd
'n regspersoon was wat 'n eis teen die verweerder gehad het wat ingestel kon word ,
en gaan dit hier bloot om die wanbeskrywing van daardie eiser wat by wyse van 'n
wysiging reggestel kan word.
Die borgakte is by die besonderhede van eis aangeheg. Dit gaan dan inderdaad oor
die beskrywing van die eiser gebaseer op die borgakte wat in hierdie geval
'n amalgamasie was van verskeie bankinstansies. Die algemene neiging, soos
gemeld, in ons regspraak is 'n neiging tot 'n minder formalistiese benadering en het
trouens daartoe gelei dat die gemeenregtelike reël dat 'n vereniging of liggaam van
persone sonder regspersoonlikheid nie in eie naam aan gedingvoering kan
deelneem nie, gewysig is deur …. Hooggeregshofreël 14.
…
Dit doen natuurlik nie afstand van die noodsaaklikheid om 'n volledige en korrekte
beskrywing te verskaf van die bestaande firma, vennootskap of vereniging wat
handel dryf, of dan wel die geregistreerde maatskappy of instansie nie.”
28. Counsel for the first respondent also duly referred me to a more recent
judgment in this Division, namely Ford v Alphera Financial Services ( A
Division of BMW Financial Services (South Africa) (Pty) Ltd) .18 It was on this
judgment that counsel for the applicant relied. It was delivered in 2012 , and
concerned an application under Rule 31(2)(b) for the rescission of a default
judgment. Relying on Two Sixty Four Investments , the court in Ford v
Alphera held that it was permissible for the plaintiff to have been described in
the summons as “ Alphera Financial Services (A Division of BMW Financial
Services)”:
“[14] The defendant's complaint about lack of locus standi is based on the form of
citation of the plaintiff, namely as 'Alphera Financial Services (A Division of BMW
Financial Services (South Africa) (Pty) Ltd)', the argument being that a 'Division' is
Financial Services (South Africa) (Pty) Ltd)', the argument being that a 'Division' is
not a legal persona and accordingly lacks capacity to contract or to sue.
18 [2012] ZAWCHC 185 (20 November 2012). See also Mega Flex (‘n Divisie van Sentrachem
Bpk) v White River Motor Trading (Edms) Bpk 1996 (1) SA 616 (T) at 618D , and
Cupido v Kings Lodge Hotel 1999 (4) SA 257 (E) at 260Iff.
[15] This argument has its genesis in an obiter remark by Conradie J (as he then
was) in Volkskas Bank ('n Divisie van Absa Bank Beperk) v Pietersen, where the
learned judge pointed out that in our law there was no legal persona such as a
division.19 A similar approach was followed by Roux J in Spoornet v Watson, …
[16] Mr Ford, who appeared on behalf of the defendant, strongly relied on both these
decisions in support of his complaint about lack of locus standi on the part of the
plaintiff. He failed to refer, however, to a series of cases, cited by Mr Groenewald on
behalf of the plaintiff, where this line of reasoning has not been followed or expressly
disapproved.”
29. The court proceeds to quote from the judgment in Two Sixty Four
Investments, and concludes as follows:
“[18] In Trust Bank Bpk v Dittrich, this court (per Van Niekerk J, Farlam J concurring)
quoted the above extract from Two Sixty Four Investments and … did not expressly
disagree with the approach adopted in that case.
[19] Having regard to the principles laid down in the above cases, it would obviously
have been preferable had the plaintiff been cited the other way around, namely as
'BMW Financial Services (South Africa) (Pty) Ltd), trading as Alphera Financial
Services', or even as 'Alphera Financial Services, a firm owned by BMW Financial
Services (South Africa) (Pty) Ltd)'. Mr Ford conceded during oral argument, rightly in
my view, that had the plaintiff been cited in that way, the whole basis for the
defendant's objection would have fallen away. This concession amply demonstrates
that the defendant's objection is based on nothing but pure semantics, which runs
counter to the more pragmatic and less dogmatic approach followed by our courts in
matters of this kind.20
30. Counsel for the first respondent argued that what was stated in Ford v
Alphera in relation to the plaintiff’s citation was context-specific, and should
be confined to matters such as those involving the rescission of default
be confined to matters such as those involving the rescission of default
judgments. It should not be followed in the context of applications such as
the present one. I do not agree. There is no reason why the approach taken
19 My emphasis.
20 My emphasis.
by the court in Ford should not apply in the current matter, especially as there
is no prejudice to the first respondent. He could not have been under any
misapprehension as to who the creditor was that was pursuing him over the
span of several years, culminating in these proceedings. In the words of the
court in Spoornet v Watson , the applicant has furnished “ sufficient details
which enable the Court and the [first respondent] to establish whether or not
the [applicant] has the requisite locus standi to sue”.
31. The objection to the applicant’s citation was raised for the first time in
opposition to this application – it had never previous ly been in issue . I think
that the words underlined in the extract from Ford quoted above are of equal
application to the first respondent’s objection.
32. I am in any event bound by the judgment in Ford v Alphera unless I am of the
view that it is clearly wrong. I do not think that it is wrong at all, as I agree
with the “more pragmatic and less dogmatic approach” taken by the court .
An objection of this nature , particularly on the facts of this matter, elevates
form over substance. The description of the claimant in the arbitration
proceedings and the application to have the award made an order of court as
“Fleet Africa, a Division of Supergroup South Africa (Pty) Ltd ” was therefore
acceptable, as is the citation of the applicant in the present application .
There can be no doubt , in the circumstances , that there was always, and is,
only one juristic person involved as creditor.
33. The applicant has therefore established that it is the first respondent’s
creditor as contemplated in section 10(a), read with section 9(1), of the
Insolvency Act.
Advantage to creditors
34. The first respondent argues in his heads of argument that the applicant is his
only alleged creditor , and there is thus no body of creditors who would be
advantaged by the sequestration of his estate. This contention was not
advantaged by the sequestration of his estate. This contention was not
pursued with any vigour during oral argument.
35. As indicated earlier, the first respondent informed the Sheriff on 12 February
2025 that he owned no assets, and he deposed to an affidavit to that effect
on the same day.
36. In Meskin & Co v Friedman21 the court held as follows:
“[T]he facts put before Court must satisfy it that there is a reasonable prospect – not
necessarily a likelihood, but a prospect which is not too remote that some pecuniary
benefit will result to creditors. It is not necessary to prove that the insolvent has any
assets. Even if there are not at all, but there are reasons for thinking that as a result
of enquiry under the Act some may be revealed or recovered for the benefit of
creditors, that is sufficient.”
37. I have referred to the fact that i n October 2025 the first respondent’s son
deposed to an interpleader affidavit alleging that one of the vehicles that had
been attached belonged to him. He also deposed to an interpleader affidavit
as the sole director of SADMC , alleging that the other three vehicles, as well
as the first respondent’s house and its contents, belonged to SADMC, as the
latter had purchased the house on 17 May 2024 and had taken transfer on 25
July 2024.
38. The applicant points out that SADMC was established on 17 January 2019,
that is, after summons had been issued by the applicant against the first
respondent, and when the first respondent’s son – who has always been its
sole director – was only 17 years old . It is nowhere explained wh at the
business of SADMC is, or how the first respondent’s son is able to be
involved in that business given that he is a student at the University of Cape
Town.
39. SADMC purchased the first respondent’s property barely three and a half
months after the arbitration award was made an order of court . The first
respondent does not explain the causa for the sale. As the applicant puts it,
21 1948 (2) SA 555 (W) at 559.
one requires little imagination to realise that all of this may well be a sham,
and that SADMC was established so that the first respondent could avoid
owning assets i n his own name. This calls for investigation by a duly
appointed trustee under the relevant provisions of the Insolvency Act. The
position was stated as follows in Dunlop Tyres (Pty Ltd) v Brewitt:22
“It will be sufficient if the creditor in an overall view on the papers can show,
for example, that there is reasonable ground for coming to the conclusion
that upon a proper investigation by way of an enquiry under s 65 of the Act a
trustee may be able to unearth assets which might then be attached, sold
and the proceeds disposed of for distribution amongst creditors.”
40. In these circumstances, I am of the view that there is reason to believe that
the sequestration of the first respondent’s estate will be to the advantage of
his creditors.
Conclusion and costs
41. The applicant has made out a case for the relief it seeks. An order for the
provisional sequestration of the first respondent’s estate should accordingly
follow. The Master has raised no objection against the grant of such an
order, and no dispute exists as to the fulfilment of the other formal
requirements pertaining to applications for provisional sequestration.
42. As is the practice, the costs of the application for provisional sequestration
will be dealt with on the return day.
Order
43. In the premises it is ordered as follows:
1. The first respondent’s estate is placed in provisional
sequestration in the hands of the Master of this Court.
22 1999 (2) SA 580 (W) at 583F-G.
2. A rule nisi is issued calling upon the respondents and all
interested persons to show cause , if any, on Thursday, 6 August
2026 on the semi -urgent roll at 10:00 o r as soon thereafter as
counsel may be heard, why:
2.1 the first respondent’s estate should not be placed in final
sequestration;
2.2 the costs of this application should not be costs in the
administration of the first respondent’s estate.
3. A copy of this provisional order of sequestration must be served:
3.1 upon the first respondent at 3[...] K[...] Road, Gatesville, Cape
Town, and on the first respondent’s attorneys via email at r[...];
3.2 upon the second respondent at 3[...] K[...] Road, Gatesville,
Cape Town, and on the second respondent’s attorneys via
email at r[...];
3.3 upon the South African Revenue Service at 1[...] L[...] L[...]
Street, Cape Town;
3.4 upon the first respondent’s employees, if any, and upon any
trade union to which such employees may belong, by affixing
a copy of the order to any notice board to which the
employees have access inside the first respondent's premises,
or if there is no access to the premises by the employees, by
affixing a copy to the front gate, where applicable, failing
which to the front door of the premises from which the first
respondent conducted any business at the time of the
institution of the application for sequestration.
P. S. VAN ZYL
Acting Judge of the High Court
Appearances:
For the applicant: Mr D. Baguley
Instructed by: Assheton-Smith Ginsberg Inc.
Attorneys
For the first respondent: Mr F. S. G. Sievers SC
Instructed by: Schrueder Inc. Attorneys