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IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, PRETORIA
Case number: 2023 - 070163
(1) REPORTABLE: No
(2) OF INTEREST TO OTHER JUDGES: No
(3) REVISED: Yes
5 May 2026
SIGNATURE
In the matter between:
THE BODY CORPORATE OF CERES Applicant
and
SOLANI DOLLENCE NTUKWANA Respondent
[ Identity Number: 6[...]]
[ Marital Status: unmarried/married out of community of property ]
The judgment was prepared and authored by the Judge whose name is reflected
and is handed down electronically by circulation to the parties’ legal representatives
by e-mail and uploading it to the electronic file of this matter on Caselines. The date
and time of hand-down is deemed to be 16:00 on 5 May 2026.
2
JUDGMENT
J Vorster, AJ
[1] The applicant is a body corporate established in terms of section 36 of the
Sectional Titles Act, 95 of 1986, read together with section 2 of the Sectional
Title Schemes Management Act (STSMA).
[2] As part of its statutory obligations, the applicant must establish an
administrative fund which is reasonably sufficient to cover the anticipated
expenses referred to in section 3 of the STSMA and collect levies from its
members.
[3] The respondent is the registered owner of unit 65 in the sectional title scheme
known as Ceres. As a result, she is a member of the applicant is liable to pay
contributions levied by the applicant. The respondent admits her membership
and the duty to contribute to the applicant’s administrative fund.
Admission of supplementary affidavits
[4] The respondent has filed an application in which she seeks leave to
supplement her earlier (first) answering affidavit by way of a supplementary
affidavit. Although the applicant opposes this application, it has nevertheless
filed a reply to the proposed supplementary affidavit.
[5] It is in the interests of the administration of justice that the well -known and
well-established general rules regarding the number of sets and the proper
sequence of affidavits in motion proceedings should ordinarily be observed.1
1 James Brown & Hamer (Pty) Ltd (previously named Gilbert Hamer & Co Ltd) v Simmons NO 1963
(4) SA 656 (A) at 660D-H.
3
[6] In Bangtoo Bros and Others v National Transport Commission and
Others,2 it was held that a litigant who seeks to serve an additional affidavit
is under a duty to provide an explanation that negatives mala fides or culpable
remissness as the cause of the facts and/or information not being put before
the court at an earlier stage.
[7] Although I am not persuaded that the respondent has adequately explained
her failure to include, in her answering affidavit, the evidence now sought to
be introduced by way of a supplementary affidavit, I am mindful that a
sequestration application concerns status, and that a less rigid approach may,
for that reason, be warranted. In addition, the supplementary affidavit is not
unduly lengthy, and the applicant has filed a replying affidavit thereto.
[8] In the result, I intend granting an order condoning the filing of both the
supplementary answering affidavit and the applicant’s supplementary reply ing
affidavit.
Requirements for a sequestration order
[9] Section 9(1) of the Insolvency Act provides that a creditor with a liquidated
claim of not less than R100.00 against a debtor, who has committed an act of
insolvency, or is insolvent, may apply to court for the sequestration of the
estate of the debtor.
[10] For the applicant to succeed, it must establish on a prima facie3 basis, that:
2 1973 (4) SA 667 (N).
3 Section 10: ‘’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.’’
4
(a.) it has a claim that entitles it, in terms of section 9(1) of the Insolvency
Act4, to apply for the sequestration of the respondent’s estate;
(b.) the respondent has committed an act of insolvency or is factually
insolvent; and
(c.) there is reason to believe that it will be to the advantage of creditors of
the respondent’s estate if her estate is sequestrated.
[11] It is appropriate to consider, in turn, the three requirements for the granting of
a provisional sequestration order.
Applicant’s status as creditor
[12] In the founding affidavit the applicant refers to three separate judgments
granted against the respondent, and further that all three judgments remain
unsatisfied.5
[13] The respondent’s evidence in this regard is as follows:
“While I do not dispute the existence of those judgments, I dispute the
quantum reflected therein, which remains the subject of a bona fide dispute.”
[14] In accordance with section 165 (5) of the Constitution, 1996, an order or
decision issued by a court binds all persons to whom it applies. In
Department of Transport and Others v Tasima (Pty) Ltd ,6 the
Constitutional Court confirmed the binding nature of all court orders as
follows:
“This reading of s 165(5) accepts the judiciary's fallibilities. As explained in
the context of administrative decisions, 'administrators may err, and even . . .
err grossly'. Surely the authors of the Constitution viewed judges as equally
human. The creation of a judicial hierarchy that provides for appeals attests to
this understanding. Like administrators, judges are capable of serious error.
4 Braithwaite v Gilbert 1984 (4) SA 717 (W) at 718.
5 ___
6 2017 (2) SA 622 (CC) at [182].
5
Nevertheless, judicial orders wrongly issued are not nullities. They exist in
fact and may have legal consequences.”
[15] Consequently, whatever the respondent’s subjective views concerning the
quantum of the three judgments may be, they exist as a matter of fact, and
confirm the applicant’s status as creditor.
[16] During argument, counsel for the respondent submitted that she is instructed
that the respondent intends to apply for the rescission of the three judgments
on the basis that they were granted for incorrect amounts. Even if I were to
accept this submission, which is unsupported by any evidence on affidavit and
appears to be no more than a knee -jerk response to the fact that the
existence of the three judgments — of which the respondent has been aware
for several years — serves to confirm the applicant’s status as a creditor, it
does not advance the respondent’s case.
An act of insolvency or factual insolvency
[17] The applicant contends that the respondent has committed an act of
insolvency in terms of section 8(b) of the Insolvency Act, and that her estate is
also factually insolvent.
[18] According to a return of service issues by the sheriff on 24 January 2023, he
attempted to execute a warrant of execution at the respondent’s place of
residence, and found the respondent personally. When he demanded
payment, the respondent informed him that she has no money of negotiable
property wherewith to satisfy the judgment debt, and that no disposable
movable property was pointed out to him or could be found. His return was
therefore one of nulla bona.
[19] In her answering affidavit, the respondent denies the sheriff’s allegations
concerning execution and personal service of the warrant. She claims that
6
she resides at unit 33, 973 Klippan Road, Twee Riviere Lifestyle Estate,
Village 1, Montana, and that the sheriff executed the warrant at an incorrect
address.
[20] The sheriff’s return of service indicated that execution took place at unit 3[...],
T[...] R[...] L[...] Estate, Village 1[...], B[...] Drive, Montana Tuine. In my
judgment, on a prima facie basis, it is significant that execution took place at
unit 3[...], T[...] R[...] L[...] Estate, Village 1. It matters little whether the
entrance to the estate is located in Klippan Road or Bougainville Road.
[21] A further issue of significance is the fact that the sheriff’s return records that:
“Judgement debtor was uttering some words which shows disrespect towards
the deputy sheriff, the body corporate of Ceres and the attorneys in charge.
She mentioned that I should drive to Limpopo to find the assets.”
[22] It is unlikely that this recordal would have been included in the return had
service not been effected on the respondent, particularly since the reference
to assets in Limpopo accords with the version advanced in the supplementary
answering affidavit that she owns property in that province.
[23] I am further fortified in my approach to the sheriff’s return by the fact that it is
well-established that a sheriff’s return of service constitutes prima facie proof
of the facts stated therein. It is not lightly to be impeached and will be
accepted as correct in the absence of clear and satisfactory evidence to the
contrary.7
[24] I am therefore satisfied that an act of insolvency as contemplated in section
8(b) has been established.
7 FHP Managers (Pty) Ltd v Theron NO and Others [2000] JOL 7308 (C) at [22]; Deputy-Sheriff v
Goldberg 1905 TS 680 at 684 referred to in Sussman & Co (Pty) Ltd v Schwarzer 1960 (3) SA 94 (O)
at 96D, as quoted in Van Vuuren v Jansen 1977 (3) SA 1062 (T) at 1062H.
7
[25] A factor I have to consider is the fact that the return of service is issued more
than two years ago. In Investec Bank Ltd v Le Roux ,8 the court concluded
that the practice of requiring an applicant to prove that there has been no
material alteration in the respondent’s financial position where the nulla bona
relied upon is older than six months, is a rule of practice only and that the fact
that a writ may be stale is only relevant in the exercise of the court’s discretion
not to grant a provisional sequestration order. I align myself with this
approach, and therefore find that the act of insolvency remains. The date of
the return is a factor that I must consider when exercising my judicial
discretion to grant or refuse the provisional sequestration order.
[26] As mentioned earlier in the judgment, the applicant also alleges that the
respondent is factually insolvent. In support of this contention the applicant
relies on inferential reasoning and point to the continued failure to pay levies,
the increasing arrears, and the information contained in the nulla bona return.
[27] In Ullman Sails (Pty) Ltd and Others v Jannie Reuvers Sails (Pty) Ltd and
Others and Related Matters ,9 it was held that an applicant relying on actual
insolvency is not required to adduce evidence to finitely determine the
respondent’s assets and liabilities in Rands and cents and he may discharge
the onus of establishing a prima facie case by way of sufficient evidence to
justify the inference as a matter of probability that the respondent is insolvent.
If the applicant does so, the onus shifts to the respondent to rebut the
inference by showing that he has sufficient assets to be able to settle his
liabilities.
[28] The evidence adduced in the founding affidavit in support of the allegation of
factual insolvency is insufficient to satisfy me that the respondent is factually
insolvent. The failure to meet payment obligations is, in itself, more indicative
insolvent. The failure to meet payment obligations is, in itself, more indicative
of a cash flow difficulty and does not necessarily bear upon the respondent’s
balance sheet position, namely the value of her assets relative to her
8 (575/2014) [2016] ZAGPJHC 11 (11 February 2016) at para. 22.
9 [2022] 3 All SA 290 (WCC) at para. 48.
8
liabilities.
[29] The Supreme Court of Appeal previously confirmed that although proof of
commercial insolvency will be sufficient in the case of winding -up of a
company, it will not be sufficient for the purpose of obtaining a sequestration
order.10
[30] Although the evidence tendered by the respondent to demonstrate her factual
solvency falls far short of what is to be expected from a person with direct
personal knowledge of the relevant facts, I find that the applicant has failed to
discharge the onus of establishing factual insolvency.11
Advantage to creditors
[31] The concept of advantage to creditors is a broad one 12 demonstrated by, for
example, a not too negligible pecuniary benefit to creditors, or that advantage
is to be gained through an enquiry into the debtor's financial affairs, 13 or that it
is important that trustees take control of the estate since the debtor is wasting
the property of the estate or there is a real concern that the debtor is
concealing assets of the estate, 14 or attempts to dissipate assets. In essence,
there must be some useful purpose.15
10 Prudential Authority v Dlamini and Another [2025] 1 All SA 76 (SCA) at [33].
11 Wightman t/a JW Construction v Headfour (Pty) Ltd 2008 (3) SA 371 (SCA) at 375 [13]: “ A real,
genuine and bona fide dispute of fact can exist only where the court is satisfied that the party who
purports to raise the dispute has in his affidavit seriously and unambiguously addressed the fact said to
be disputed. There will of course be instances where a bare denial meets the requirement because
there is no other way open to the disputing party and nothing more can therefore be expected of him.
But even that may not be sufficient if the fact averred lies purely within the knowledge of the averring
party and no basis is laid for disputing the veracity or accuracy of the averment. When the facts averred
are such that the disputing party must necessarily possess knowledge of them and be able to provide an
answer (or countervailing evidence) if they be not true or accurate but, instead of doing so, rests his
case on a bare or ambiguous denial the court will generally have difficulty in finding that the test is
satisfied. I say 'generally' because factual averments seldom stand apart from a broader matrix of
circumstances all of which needs to be borne in mind when arriving at a decision.”
12 Body Corporate of Empire Gardens v Sithole and Another 2017 (4) SA (SCA) at [10].
13 Investec Bank Limited v Louw and Another [2012] JOL 29473 (WCC) at para. [74] – [76].
14 Fourie NO v Smith [2017] JOL 38868 (GP) at [51].
15 Ex Parte Shmukler-Tshiko and Thirteen othe r cases [2012] ZAGPJHC 209 (26 October 2012) at
para.
[34] and [59].
9
[32] In the founding affidavit, the applicant contends that the value of unit 65 in the
Ceres sectional title scheme is sufficient to demonstrate an advantage to the
respondent’s general body of creditors. More specifically, the applicant
estimates the value of the property to be between R340,000 and R450,000.
Although the property is bonded in favour of Standard Bank, the applicant
points out that the original bond amount was only R320,000.
10
[33] In her initial answering affidavit, the respondent stated that only an amount of
R160,000 remained outstanding on the bond. As an annexure to her
supplementary answering affidavit, she disclosed a copy of her Standard
Bank statement reflecting that, as at August 2025, the outstanding balance
had reduced to R94,000. On this basis, even if the lower valuation advanced
by the applicant (namely R340,000) is accepted, the sale of the property
would yield a substantial pecuniary benefit for the general body of creditors.
[34] In addition, the respondent contends that: (i.) she owns movable assets
(although she does not provide details of any specific assets); (ii.) she
receives monthly rental income from unit 6 [...]; and (iii.) she owns an
unencumbered immovable property known as Erf 3[...], M[...], Limpopo. These
allegations confirm the likelihood of a pecuniary benefit to the respondent’s
body creditors.
[35] It is, in my judgment, clear that an investigation into the respondent’s financial
affairs may reveal further assets capable of realisation for the benefit of
creditors. In Commissioner, South African Revenue Services v Hawker
Air Services (Pty) Ltd and Hawker Aviation Partnership and Others 16 the
Supreme Court of Appeal confirmed that a court need not be satisfied that
there will be advantage to creditors in the sense of immediate financial benefit
but that the court need be satisfied only that there is reason to believe - not
necessarily a likelihood, but a prospect not too remote - that as a result of
investigation and enquiry, assets might be unearthed that will benefit
creditors. I align myself with this approach to the topic of advantage to
creditor.
Discretion
16 2006 (4) SA 292 (SCA).
11
[36] A sequestration order is discretionary in nature.17
[37] The nature of the discretion was explained in FirstRand Bank Ltd v Evans,18
where Wallis, J (as he was then) stated that there is little authority on how the
court’s discretion should be exercised, which perhaps indicates that it is
unusual for a court to exercise it in favour of the debtor. He went on to state:
“Broadly speaking it seems to me that the discretion falls within that class of
cases generally described as involving a power combined with a duty. 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.”
[38] In my judgment, the respondent has not established special or unusual
circumstances warranting the exercise of my discretion in her favour.
Consequently, a provisional sequestration order in respect of her estate will
be granted.
[39] The following order is made:
1. Leave is granted to both the applicant and the respondent to file
supplementary affidavits.
2. The costs occasioned by the applications for leave to file
supplementary affidavits shall be costs in the cause.
3. The estate of the respondent, Solani Dollence Ntukwana , with identity
number 6[...], is provisionally sequestrated.
4. All persons with an interest in the respondent’s affairs are called to
present reasons on 3 August 2026, at 10:00 why the provisional order
of sequestration should not be made final.
5. The provisional order of sequestration must be:
5.1 Served on the respondent in the manner prescribed by
17 Section 10: “… may make an order sequestrating the estate of a debtor provisionally.”
18 2011 (4) SA 597 (KZD).
12
paragraphs 2.1, 2.2 and 2.3 of the substituted service order
dated 20 September 2023 , and also by email service of the
respondent’s attorneys, Ndhlovu Nyiko Attorneys Inc.
5.2 Delivered to the Commissioner for the South African Revenue
Service and the Master of the High Court, Pretoria;
5.3 Published on one occasion in the Government Gazette and the
Citizen newspaper;
6. The costs incurred by the applicant shall be costs in the administration
of the respondent’s insolvent estate, and is to be taxed on scale B.
J VORSTER, AJ.
Acting Judge of the High Court
Date heard: 4 May 2026.
Judgment date: 5 May 2026.
Appearances:
For the applicant:
Counsel: M Bronkhorst
(Heads of Argument by D Hewitt)
Instructed by: Loock Du Pisani Inc. Attorneys
For the respondent:
Counsel: N Satekge
Instructed by: Ndhlovu Nyiko Attorneys Inc.