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[2026] ZAGPJHC 548
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Krugersig Body Corporate v Viljoen (2025/166934) [2026] ZAGPJHC 548 (22 May 2026)
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REPUBLIC OF SOUTH
AFRICA
IN THE HIGH COURT OF
SOUTH AFRICA
GAUTENG DIVISION,
JOHANNESBURG
Case No: 2025 /166934
(1)
REPORTABLE: NO
(2)
OF INTEREST TO OTHER JUDGES: NO
(3)
REVISED: NO
In the matter between:
KRUGERSIG
BODY CORPORATE
Applicant
and
WILLEM
WOUTER
VILJOEN
Respondent
JUDGMENT
MOTHA, J
Introduction
[1]
In
an attempt to prevent a pending application for a provisional order
of sequestration, the respondent raised two points in limine:
firstly, Authority to Depose a Statement, and secondly,
Non-Compliance with Regulations of the Oath and Affirmations Act
[1]
.
Upon realizing the futility of those points, he abandoned them at the
commencement of the proceedings and instead relied on a
new
submission that the sheriff had not served the writ personally on
him. Needless to state that this was not pleaded. The submission
was
that, as this was a legal point, it could be raised from the bar.
Parties
[2]
The
applicant, is the Body Corporate, Krugersig, a juristic entity
established under Sections 1 and 2 of the Sectional Title Schemes
Management Act,
[2]
read together
with section 8(3) of the Sectional Title Act.
[3]
[3]
The respondent is Willem Wouter Viljoen, an
adult male residing at Krugersig complex, which is managed by the
applicant.
[4]
The applicant is a creditor of the
respondent, who is indebted to the applicant in the sum of R120
024.94, plus all other costs.
On 10 October 2023, the Applicant
issued summons against the respondent in the District Magistrates
Court of Mogale City, Krugersdorp,
under case number 4435/2023.
[5]
In the summons, the applicant prayed for a
judgment against the respondent for payment of the amount of R120
024.94 and interest
on that amount.
[6]
Subsequently, on 17 October 2023, the
sheriff served summons on the Respondent.
[7]
The respondent did not enter an appearance
to defend; hence, the applicant applied for default judgment. On 6
May 2024, the Krugersdorp
Magistrates’ Court granted judgment
against the respondent in favour of the applicant.
[8]
Having obtained the judgment, the
applicant's attorneys of record instructed the Sheriff to execute the
issued warrant of execution.
On 17 April 2025, the Sheriff of the
Court executed the writ of execution on the respondent's movables.
[9]
On the 13th of May 2025, as the Sheriff of
the Court attempted to remove the items under attachment for storage
awaiting the sale
in execution, she was served with an interpleader
summons pertaining to the goods under attachment.
[10]
The respondent’s attorneys dispatched
a letter to the applicant and it read:
“
We
confirm having advised you that Mr Viljoen Calvort received a notice
from the sheriff of Krugersdorp that a warrant had been
issued
against him with a view to attaching certain assets on his premises
and that after the attachment, the attached goods were
removed by the
sheriff of Krugersdorp.
Prior to you being
appointed as the attorney of record, a payment arrangement was
entered into with the previous attorneys of record,
being Swanepoel.
Van Zyl Attorneys.”
The Law
[11]
I pause to consider the applicable law.
[12]
As
a point of departure, this Court must examine s 10 of the Insolvency
Act,
[4]
which reads:
"10. Provisional
sequestration
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 sub-section (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."
[13]
Without
having to prove that the debtor is actually insolvent, the creditor
can rely on s8 of the Act, which designates certain
acts or omissions
by the debtor as “acts of insolvency.” If the creditor
can establish that the debtor has committed
one or more of these
"acts", he may seek an order sequestrating the debtor's
estate without having to prove that the
debtor is actually
insolvent.
[5]
[14]
In
the matter of
De
Waard v Andrew & Thienhaus Ltd
,
[6]
Innes CJ stated:
"Now,
when a man commits an act of insolvency, he must expect his estate to
be sequestrated. The matter is not sprung upon
him; first a judgment
is obtained against him, then a writ is taken out, and he must
expect, if he does not satisfy the claim that
his estate will be
sequestrated. Of course, the Court has a large discretion in regard
to making the rule absolute; and in exercising
that discretion the
condition of a man’s assets and his general financial position
will be important elements to be considered.
Speaking for myself, I
always look with great suspicion upon, and examine very narrowly, the
position of a debtor who says, ‘I
am sorry that I cannot pay my
creditor, but my assets far exceed my liabilities. To my mind the
best proof of solvency is that
a man should pay his debts, and
therefore I always examine in a critical spirit the case of a man who
does not pay what he owes.”
[7]
[15]
The applicant submitted that the respondent
has committed various acts of insolvency. Chief amongst them is s
8(b) of the Insolvency
Act. The respondent has failed to
satisfy or indicate disposable property sufficient to satisfy the
judgment handed down
by the court.
[16]
The other act of insolvency relied on by
the applicant is s 8(e).
[17]
Finally, the applicant stated that a
provisional sequestration order will be to the advantage of the
creditors, since an insolvency
enquiry will give clarity regarding
the status of the Respondent's assets.
[18]
Importantly, the respondent does not
dispute being indebted to the applicant nor the existence of the
court order. In a letter sent
by the respondent’s attorneys to
the applicant, the following is noted:
“
(Mr
Viljoen) is prepared to make an offer to pay off this judgment debt
in the amount of R5000.00 per month and to consent to a
garnishee
order be set in place to facilitate this arrangement”.
[19]
It is a matter of record that the debt
remains outstanding. After abandoning the points in
limine
,
counsel for the respondent contended that their main submission
against an order for provisional sequestration was that the sheriff
failed to effect personal service of the warrant of execution on the
respondent.
[20]
This submission is at odds with the letter
written by the respondent’s erstwhile attorneys dated 15 May
2025. As referenced
under paragraph 11, it is worth repeating:
“
We
confirm having advised you that Mr Viljoen Calvort received a notice
from the sheriff of Krugersdorp that a warrant had been
issued
against him with a view to attaching certain assets on his premises
and that after the attachment, the attached goods were
removed by the
sheriff of Krugersdorp.”
[21]
The
issue of service is a late invention to ward off the application.
From the contents of this letter, there is no dispute that
the
sheriff served the respondent. In fact, the sheriff managed to raise
a measly R400.00 from the sale in execution following
the
interpleader application. It hardly needs restating that a debtor's
failure to pay a debt when due is presumptive proof of
insolvency.
[8]
Therefore,
the respondents' failure to pay the amounts due under the judgment
debt raised a very strong prima facie case
that the debtor was
insolvent.
[9]
[22]
In his answering affidavit, the respondent
said:
“
17.3.
I wish to further state that I am solvent as I am the owner of
moveable property to the value of R800 000 (eight hundred thousand
rand) therefore not insolvent as alleged by the applicant.”
[23]
As already stated in
De
Waard
this is not good enough, “the
best proof of solvency is that a man should pay his debts.”
[24]
I am persuaded that, on a
prima
facie
basis, the applicant has
established that the respondent has committed the act of insolvency
as contemplated under s 8(b)
and that it would be in the best
interest of the creditors for the respondent to be placed under
provisional sequestration. Now,
the question before this Court is
whether it should exercise its discretion to grant a provisional
order of sequestration.
[25]
In
the matter of
First
Rand Bank Ltd v Evans
[10]
the court held:
“
In
other words where the conditions prescribed for the grant of a
provisional order of sequestration are satisfied then, in the
absence
of some special circumstances, the court should ordinarily grant the
order. It is for the respondent to establish the special
or unusual
circumstances that warrant the exercise of the court’s
discretion in his or her favour.”
[11]
[26]
Before
this court, the respondent has not established circumstances that are
either unusual or special to warrant the exercise of
the discretion
in his favour. Indeed, body corporates “rely on the payments of
levies by all members to maintain the common
property and meet their
obligations.”
[12]
[27]
However, a body corporate cannot be like a
fair-weather friend, simply waiting for a homeowner’s levies
account to balloon
and then handing over the debt to its attorneys;
it must do more. That more could take many forms, such as engaging
with a homeowner
about a possibility of an early sale of the affected
property or placing a moratorium on interest on levies.
Conclusion
[28]
In
casu,
the concatenation of the evidence permits one conclusion, namely: the
discretion must be exercised in favour of ordering a provisional
sequestration. It is trite that if the court sequestrates the estate
of a debtor provisionally, it must simultaneously grant a
rule
nisi
calling upon the debtor upon a day mentioned in the rule to appear
and to show cause why his or her estate should not be sequestrated
finally.
[29]
It is hereby ordered as follows;
Order
1.
The estate of the Respondent is
provisionally sequestrated, and the assets thereof are placed in the
hands of the Master of the
High Court
2.
The Respondent or any interested person is
called upon to present reasons on 10 August 2026 and at 10h00, or so
soon thereafter
as counsel for the Applicant may be heard, why the
provisional sequestration order should not be made a final order.
3.
The costs of this application are costs in
the joint insolvent estate.
MP MOTHA
JUDGE
OF THE HIGH COURT
GAUTENG DIVISION,
JOHANNESBURG
Appearances
For the
Applicants: Adv L Liebisch
Instructed
Wynand du Plessis Attorneys
For the Respondent:
Adv Swanepoel
Instructed
Eastes Incorporated
Date of
hearing:
05 May 2026
Date of Judgement
22 May 2026
[1]
16
of 1963.
[2]
8
of 2011.
[3]
66
of 1971.
[4]
24
of 1936.
[5]
See
Sharrock at al,
Hockly's
Insolvency Law
(7th edition) (Juta, 2002) at p 30; and see
De
Villiers NO v Maursen Properties (Pty) Ltd
1983 (4) SA 670 (T) 676.
[6]
1907
TS 727.
[7]
Id
at 733.
[8]
De
Waard v Andrew & Thienhaus Ltd
1907
TS 727.
See also
Krumm
v Black
14 CTR 148.
[9]
Krumm
v Black
(1904) 21 SC 23.
[10]
2011
(4) SA 597 (KZD).
[11]
Id
at para 28.
[12]
Lombardy
Home Owners Association NPC v Makgolela and Others (2024/010120)
[2026] ZAGPJHC 502 (14 May 2026)