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REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, PRETORIA
CASE NO.: 2024-059200
(1) REPORTABLE: NO
(2) OF INTEREST TO OTHER JUDGES: NO
(3) REVISED: NO
Date: 22 May 2026
E van der Schyff
In the matter between:
THE BODY CORPORATE MONACO APPLICANT
and
VHONANI MICHAEL NEMUTANDANI FIRST RESPONDENT
(Identity Number: 6[...])
NDANDULENI GLORIA NEMUTANDANI SECOND RESPONDENT
(Identity Number: 6[...])
Delivered: This judgment is handed down electronically by uploading it to the electronic
file of this matter on CaseLines. In the event that there is a discrepancy between the date
the judgment is signed and the date it is uploaded to CaseLines, the date the judgment is
uploaded to CaseLines is deemed to be the date that the judgment is handed down.
JUDGMENT
VAN DER SCHYFF J
Introduction and background
[1] This is an opposed application for the final sequestration of the respondent’s joint
estate.
[2] The respondents, who are married in community of property, are the registered
owners of an immovable property Unit 5[…], in the sectional title scheme known as
Monaco, situated at Flat 5[…] Monaco, 2[...] T[...] Street, Muckleneuk.
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[3] The applicant is the Body Corporate of the aforementioned sectional title scheme.
The respondents are in debted to the applicant in respect of unpaid levies, interest , and
legal costs arising from prolonged non -payment. According to the founding papers , the
indebtedness amounted to R584 341.21 as at January 2024.
[4] Several legal proceedings were instituted against the respondents over time in
respect of different periods of arrear levies. Default judgments were obtained against the
respondents in both the Magistrates’ Court and this Division. The present application is
founded principally upon a default judgment granted by this court under case number
019890/2022.
[5] The applicant contends that the respondents committed an act of insolvency as
envisaged in section 8(b) of the Insolvency Act 24 of 1936 (“the Insolvency Act”).
Reliance is placed on a nulla bona return issued by the Sheriff following service of a
warrant of execution at the respondents’ traced residential address at Tshifulanani,
Limpopo. According to the Sheriff’s return, the respondents indicated that they were
unable to satisfy the writ.
[6] The respondents oppose the application. They contend that they did not receive
notice of the proceedings that culminated in default judgment under case number
019890/2022. They further aver that they are factually solvent and wish to settle the
applicant’s claim . In this regard, they allege that the property at which they reside in
Limpopo consists of a 16-room house containing furniture and movable assets.
[7] The applicant disputes that the respondents’ conduct demonstrates any genuine
intention or ability to satisfy the judgment debt. It points out that, notwithstanding repeated
undertakings and settlement overtures, the respondents have continued to default both in
respect of arrear levies and ongoing monthly levies. The applicant avers that the
indebtedness has escalated substantially by June 2025.
indebtedness has escalated substantially by June 2025.
[8] A provisional sequestration order was issued on 5 November 2025 in the absence
of the respondents, with a rule nisi returnable on 2 March 2026.
[9] It is common cause that the main application was personally served on both
respondents, who thereafter entered opposition and delivered an answering affidavit. The
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provisional sequestration order was served personally on the first respondent, who also
accepted service on behalf of the second respondent.
[10] On 2 March 2026, the rule nisi was extended by agreement to 18 May 2026 at the
request of the respondents’ counsel, who sought an opportunity to negotiate a settlement
agreement with the applicant before the joint estate was finally sequestrated. It is
common cause that the terms of the proposed settlement were unacceptable to the
applicant and that the parties were ultimately unable to reach an agreement.
Discussion
[11] It is undisputed that default judgment was granted against the respondents in this
Division under case number 019890/2022. The respondents deny knowledge of the High
Court action instituted under case number 019890/2022, asserting that the applicant
deliberately served process at 5[...] Monaco knowing that the respondents resided in
Limpopo.
[12] The contention cannot prevail on the papers before this court. The founding
affidavit identified 5[...] Monaco, 2[...] T[...] Street, Muckleneuk, as the respondents’
domicilium citandi et executandi . The answering affidavit does not meaningfully traverse
or dispute that allegation. In those circumstances, service at that address was prima facie
valid. Moreover, although the respondents now complain of lack of notice, no rescission
application was brought despite ample opportunity to do so after they became aware of
the judgment. The respondents have throughout been legally represented. Their failure to
pursue rescission materially weakens the procedural complaint now advanced.
[13] Significantly, the respondents do not dispute service of the warrant of execution
that culminated in the nulla bona return. Nor do they meaningfully challenge the contents
of the Sheriff’s return itself.
[14] The respondents’ assertion that they possess sufficient movable assets at their
Limpopo residence to satisfy the indebtedness remains unsupported by any objective
Limpopo residence to satisfy the indebtedness remains unsupported by any objective
evidence. No inventory, valuation, proof of ownership, bank statements, or other financial
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disclosure was produced. The assertion accordingly carries limited evidentiary weight
when measured against the Sheriff’s nulla bona return.
[15] As Innes CJ observed in De Waard v Andrew and Thienhaus:1
“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.”
[16] The respondents rely heavily on the proposition that the indebtedness should
instead be resolved through a payment arrangement. The difficulty with that submission is
that the respondents have not advanced any concrete or viable proposal demonstrating
how the debt will realistically be extinguished within a reasonable period.
[17] The papers reveal that the respondents made settlement overtures and proposed
payment arrangements from time to time. The existence of such proposals is, however,
not proof of solvency. On the contrary, a proposal to discharge a substantial judgment
debt by instalments may equally indicate an inability to satisfy debts as they fall due.
[18] It was submitted on behalf of the applicant during argument, without contradiction,
that the continued accumulation of interest and charges has materially impaired the
applicant’s ability to recover the escalating indebtedness through ordinary delay. That
consideration reinforces the applicant’s contention that ordinary debt enforcement
mechanisms have proved ineffective over a prolonged period.
[19] The respondents further rely on a pending review application under case number
20916/18. The answering papers provide little context regarding the nature, status, or
relevance of that review to the judgment debt that underpins the present sequestration
relevance of that review to the judgment debt that underpins the present sequestration
application. No review papers were attached, and no explanation was provided as to how
the review affects the enforceability of the judgment debt. In those circumstances, the
alleged review application does not constitute a cognisable defence to the relief sought.
1 1907 (TS) 727 at 733.
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[20] Having considered the papers as a whole , I am satisfied that the applicant is a
creditor with a liquidated claim well in excess of R100.00 . The respondents own
immovable property within the court’s territorial jurisdiction, establishing jurisdiction.
Furthermore, when served with the warrant of execution under case number 019890/22 ,
the respondents failed to satisfy the judgment debt or to indicate to the sufficient
disposable property to the Sheriff, thereby committing an act of insolvency.
[21] The remaining enquiry is whether there is reason to believe that the sequestration
of the respondents will be to the advantage of creditors.
[22] In Meskin & Co v Friedman2 it was held that there must be:
“.. 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 none 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.”
[23] The Constitutional Court in Stratford v Investec Bank Ltd 3 emphasised that the
concept of advantage to creditors should not be approached rigidly and that the enquiry
remains one directed at the existence of a reasonable prospect of pecuniary benefit to
creditors as a body.
[24] Although the evidence regarding the respondents’ complete financial position is
limited, I am satisfied that there exists a reasonable prospect, not too remote, that
sequestration may yield a pecuniary benefit to creditors.
[25] The respondents are the registered owners of Unit 5[...] Monaco. The applicant
attached a Windeed valuation reflecting an estimated value of approximately R470 000.
The precise extent of any outstanding bond indebtedness is not disclosed on the papers,
nor is there sufficient evidence to determine with precision what dividend may ultimately
nor is there sufficient evidence to determine with precision what dividend may ultimately
become available to concurrent creditors. That, however, is not decisive.
2 1948 (2) SA 555 (W) at 559.
3 Stratford and Others v Investec Bank Ltd and Others 2015 (3) SA 1 (CC) at para 44.
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[26] As Meskin & Co v Friedman , supra, makes clear, it is sufficient that there is a
prospect, not too remote, of some pecuniary benefit to creditors. The appointment of a
trustee will, moreover, enable a thorough investigation of the respondents' broader
financial affairs, including assets that may not have been disclosed.
[27] The respondents themselves assert the existence of additional assets and
proprietary interests associated with the property in Limpopo at which they reside,
including movable assets and motor vehicles. Although these allegations are insufficiently
substantiated to displace the evidentiary weight of the nulla bona return, they nonetheless
suggest the possible existence of assets or interests warranting investigation by a trustee.
[28] One further factual distinction requires clarification. Throughout the answering
affidavit, the respondents describe Stand 1[...], Tshifulanani, Limpopo as their residential
address. They assert that it consists of a 16 -room house fully packed with furniture and
that motor vehicles are present there. These averments, however, speak to assets
located at a place where the respondents reside . T hey do not establish, nor do they
purport to establish, that the respondents are the registered owners of that property. The
founding affidavit is explicit on this point: the applicant identifies 5[...] Monaco as the only
immovable property owned by the respondents of which it has knowledge. No Deeds
Office search confirming ownership of Stand 1[...] is placed before this court, and the
answering affidavit itself produces no title deed, no rates account, and no other document
consistent with registered ownership. In the circumstances, Stand 1[...] cannot be treated
as owned immovable property of the respondents for the purposes of this application.
Whether the respondents occupy that property as registered owners, as occupants of a
family or communal homestead, or in some other capacity entirely, is a question that falls
family or communal homestead, or in some other capacity entirely, is a question that falls
squarely within the investigative mandate of a trustee appointed under the Insolvency Act.
It is precisely this kind of undisclosed or unverified interest that the sequestration process
is designed to interrogate.
[29] Although the respondents do not expressly invoke any constitutional rights in their
answering affidavit, this court, in exercising the discretion whether to grant a final
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sequestration order, is obliged to consider the constitutional dimensions of that order of its
own accord.
[30] In Stratford v Investec Bank Ltd the Constitutional Court confirmed that
sequestration proceedings may implicate constitutional rights, including the rights to
dignity and access to adequate housing. The court must therefore consider whether a
sequestration order would operate disproportionately or unjustifiably in the circumstances.
[31] The papers indicate that the respondents reside in Tshifulanani, Limpopo, rather
than at the Monaco unit. The Monaco property is accordingly not shown on the papers to
constitute the respondents’ primary residence. The respondents’ right to dignity must also
be weighed against the rights and interests of creditors, including the other owners within
the sectional title scheme who continue to bear the financial burden created by the
prolonged non-payment of levies.
[32] Having considered these factors, I am satisfied that no constitutional impediment
arises to the granting of a final sequestration order.
[32] The court retains an overriding discretion whether to grant a final sequestration
order.
[33] The respondents have not demonstrated special circumstances warranting the
exercise of that discretion in their favour. They have not placed sufficient evidence before
the court demonstrating factual solvency, nor have they proposed a viable and concrete
mechanism by which the indebtedness will be satisfied.
[34] The prolonged non -payment of levies, the escalation of the indebtedness over
time, the nulla bona return, and the absence of meaningful financial disclosure
cumulatively support the conclusion that a final sequestration order is justified.
Miscellaneous
[35] The provisional sequestration order was extended to 22 May 2026 to facilitate the
handing down of the judgment.
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Costs
[36] In accordance with the ordinary practice applicable to sequestration proceedings,
the costs of the application will be costs in the sequestration.
ORDER
In the result, the following order is granted:
1. The rule nisi is hereby confirmed.
2. The joint estate of VHONANI MICHAEL NEMUTANDANI (Identity number 6[...])
and NDANDULENI GLORIA NEMUTANDANI (Identity number 6[...]) is placed
under final sequestration.
3. The costs of the application are costs in the sequestration.
____________________________
E VAN DER SCHYFF
JUDGE OF THE HIGH COURT
GAUTENG DIVISION, PRETORIA
For the applicant: Adv. N. Diedericks
Instructed by: Pretorius Le Roux Incorporated
For the first and second respondents: Adv. T.P. Matodzi
Instructed by: Tshilidzi Makuya Attorneys
Date of the hearing: 18 May 2026
Date of judgment: 22 May 2026