Reportable: No
IN THE HIGH COURT OF SOUTH AFRICA
(GAUTENG DIVISION, PRETORIA)
Of interest to other judges: No
Revised: No
o1&-/4.r/4a,;
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Case Number: 2025-183510
In the matter between:
JACOBUS PETRUS FOURIE N.O.
SIMONE LIESEL MAGARDIE N.O.
and
ANDRIES JAN GYSBERT NAUDE
Identity Number: 660929 5031 084
MARRIED OUT OF COMMUNITY OF PROPERTY
JUDGMENT
First Applicant
Second Applicant
Respondent
This Judgment was handed down electronically by circulation to the parties/ their
legal representatives by e-mail and by uploading to the electronic file on Case
Lines. The date of hand-down is deemed to be 22 May 2026.
WESSELSAJ
INTRODUCTION:
[1] This is an application for the provisional sequestration of the respondent's
estate.
2
[2] The application came before me on the unopposed motion roll on 26
February 2026.
[3] The applicants are the duly appointed liquidators of Aficionada Protection
Services (Pty) Ltd (in liquidation)("the company").
[4] The respondent, Mr Andries Jan Gysbert Naude, was the sole director of
the company prior to its voluntary liquidation.
[5] The application is founded upon an alleged debt of R88,797.40 owed by the
respondent to the company. The respondent's indebtedness arises from
various payments made from the company's bank account to the
respondent or for his benefit which, according the applicants, constituted
monies lent and advanced by the company to the respondent.
[6] The applicants allege that they ex officio have a claim against the
respondent for the said amount either ex contracto, ex delicto or ex variis
causarum viguris and accordingly have the necessary locus standi to
launch the application for the sequestration of the respondent's estate.
[7] Applicants also allege in their founding affidavit that the payments from the
company's bank account constitute impeachable dispositions for the
respondent's benefit. For reasons I will elaborate on, I disagree.
[8] Counsel for the applicants drew my attention to a recent judgment in this
division by my learned colleague Greyling AJ in Fourie and Cook v
3
Rootman, 1 wherein he concluded that a claim based on an impeachable
disposition does not become a liquidated claim for purposes of establishing
locus standi to a liquidator to bring an application for the sequestration of
the beneficiary of the disposition's estate, not at least until a Court has set
the disposition aside.
[9] Counsel for the applicants' attention was drawn by the Court to the
judgment, in this division, in a similar matter by my other learned colleague
Khashane Manamela AJ in Victor N.O. and Others v Liebenberg,2
wherein he seemingly held a contrary view.
[1 OJ In order to consider the question if a possible conflict exists between the
referred judgments, I am obliged consider the relevant principles relating to
an applicant's locus standi in applications of this nature.
FACTUAL BACKGROUND:
[11) Although the applicants adopted a somewhat scattergun approach in their
founding affidavit, the material facts, distilled to their essence, are
straightforward and are, in any event not in dispute.
[12) The company was placed in voluntary liquidation by special resolution on
19 June 2024. The applicants were appointed as joint liquidators by the
Master of the High Court on 11 July 2024.
Unreported judgment, Case Number 2025/0136970 Gauteng Division, Pretoria, 20 February
2026
2 2025 JDR 0600 GP
4
[13] In the course of their statutory duties the applicants investigated the
company's financial affairs. They discovered that a total amount of
R88,797.40 had been paid from the company's bank account to the
respondent or to third parties for his benefit. These payments are
meticulously detailed in the bank statements attached to the founding
affidavit. 3
[14] The applicants allege that at the time that these payments were made, the
company's liabilities already exceeded its assets.
[15] The applicants' attorneys dispatched a letter of demand4 to the respondent
on 28 August 2025 claiming repayment of the R88,797.40.
[16] The respondent replied via e-mail on 1 September 2025.5 His response is
telling. He states:
"These payments which they demand were done on my behalf and I did
not realise that payments from the overdraft would be considered
benefitting one creditor above another and that they would be
dispositions as explained by them. I unfortunately do not have the
means to repay this as I have limited income and which is much less
than I used to earn, with more liabilities due to me being unemployed
for a while. It is a struggle on a daily basis."
[17] The respondent admits the payments of the amounts in question.
3 Annexure "C"
4 Annexure "D1''
~ /\nnoxuro "D2" to tho founding affidavit
5
THE STATUTORY REQUIREMENTS FOR PROVISIONAL SEQUESTRATION:
[18] In terms of section 10 of the Insolvency Act, 24 of 1936 ("Insolvency Act'), a
Court may grant a provisional sequestration order if it is satisfied on a prima
facie basis that:
i) The applicant has established a liquidated claim of not less than the
statutorily prescribed amount of R100.00 against the respondent;
ii) The respondent has committed an act of insolvency or is in fact
insolvent; and
iii) There is reason to believe that it will be to the advantage of creditors
of the respondent if his estate is sequestrated.
[19] I shall consider each of these requirements in turn, commencing with the
pivotal issue of locus standi.
ANALYSIS OF THE APPLICANTS' LOCUS STAND/:
[20] In terms of section 9(1) of the Insolvency Act a creditor (or his agent) who
has a liquidated claim for not less than R100, or two or more creditors (or
their agent) who in the aggregate have liquidated claims for not less than
R200 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.
6
[21] The applicants' locus standi hinges on whether their claim for R88,797.40
constitutes a "liquidated claim" in terms of section 9(1) of the Insolvency
Act.
[22] In Kleynhans v Van der Westhuizen N.O.,6 the Appellate Division defined
a liquidated claim in the context of section 9(1) as a "a claim for an amount
which is fixed, either by agreement or by an order of Court or otherwise".
[23] In Hassan and Another v De Villiers Berrange N.O.,7 the Supreme Court
of Appeal confirmed the approach adopted in Kleynhans v Van der
Westhuizen N.O. that a liquidated claim in terms of section 9(1) of the
Insolvency Act means a claim where the amount is fixed either by
agreement or by an order of Court or otherwise. What the legislature
intended was, that there should be certainty in connection with the amount
of the claim, which was not affected by the legal basis and nature thereof.
[24] In Victor N.O. and Others v Liebenberg,8 Khashane Manamela AJ with
reference to Kleynhans v Van der Westhuizen N.O. and Hassan and
Another v De Villiers Berrange N.O., found that the respondent's
gambling debts and other expenses, which were funded from the
company's bank account constituted liquidated claims against the
respondent on the facts in that case. It is noteworthy that in Victor N.O.
and Others v Liebenberg the applicants were the appointed liquidators of
a company to wit, Tariomix (Pty) Ltd, which brought an application for the
b
7
8
1970 (2) SA 742 (A) at 748 to 749
2012 (6) SA 329 (SCA) at par 35
2025 JDR 0600 (GP) at par 27
7
sequestration of Tariomix's erstwhile director, Mr Liebenberg and a result of
payments from Tariomix's bank account for his benefit.
[25] If regard is had to the definition of "disposition" contained in the Insolvency
Act, it is clear that the funds misappropriated from Tariomix's bank account
by the respondent cannot be classified as dispositions within the meaning
of the Insolvency Act.
[26] In terms of section 1 of the Insolvency Act a disposition means "any transfer
or abandonment of rights to property and includes a sale, lease, mortgage,
pledge, delivery, payment, release, compromise, donation or any contract
therefore, but does not include a disposition in compliance with an order of
the Court."
[27] It is clear from the aforesaid definition that a "disposition" within the
meaning of section 1 , comprises both an act as well as an intention by the
company to dispose of the property in question. Consequently, a loan
would not constitute a disposition and neither would the theft or
misappropriation of funds qualify as such.
[28] In Tariomix, the evidence presented by the applicants established that the
respondent misappropriated the monies from the company's bank
accounts, which constituted theft.
[29] Greyling AJ in Fourie and Cook v Rootman held, on the fact presented to
him, that a claim based on an impeachable disposition under sections 26,
8
29 or 30 of the Insolvency Act, does not constitute a liquidated claim, until
such disposition had been set aside.
[30] His reasoning was that such a disposition is not void ab initio but remains
valid until set aside by a Court. Therefore, the obligation to restore the
property or its value only arises once a Court has exercised its power to set
the disposition aside. The "debt" only arises once the Court has made the
order to set aside the disposition.
[31] Until such order is granted, no debt exists, and consequently no liquidated
claim upon which a liquidator can found an application for sequestration
exists either.
[32] Greyling AJ found that in the absence of a Court order declaring the
dispositions impeachable and setting them aside, the transactions
remained valid and effective and, in the absence, of an order converting it
into a debt in terms of section 32 of the Insolvency Act, no claim existed for
purposes of section 9(1) of the Insolvency Act.
[33] In Exotic Fruit Company (Pty) Ltd v Zakharov and Another9, the
applicants, in their capacities as the appointed liquidators for the company,
sought an order for the provisional sequestration of the first respondent's
estate. In their application, which was opposed, they relied on certain
payments to the first respondent, who they allege was the controlling
master mind of the company prior to its liquidation. They contended that
9 [2021] ZAWHC 60
9
these payments constituted impeachable dispositions within the meaning of
sections 29 and 30 of the Insolvency Act.
[34] The Court in considering the application formulated the critical question as
follows: "The critical question to determine is whether the disposition relied
on by the liquidators is in fact a "debt" which would entitle the to bring the
application for the sequestration of the respondenf'.
[35] In dismissing the application, Hockey AJ, with reference to Duet and
Magnum Financial Services CC (In liquidation) v Koster10 held that what
was required was a declaration by a Court, setting aside the dispositions,
which would bring the debt into existence that did not exist before. In Duet
and Magnum, the Court dealt with the issue of prescription relating to an
impeachable disposition and the findings were made in that context.
[36] Hockey AJ further referred to the judgment of Cachalia JA in Off-Beat
Holiday Club and Another v Sanbonani Holiday Spa Shareblock Ltd
and Others 11 , wherein he confirmed the conclusion reached in Duet and
Magnum and opined (at par 45):
10
11
"The provisions of the Insolvency Act (ss 26 - 31) ... referred to in Duet
and Magnum Financial Services v Koster, which the High Court
considered comparable to a shareholder's entitlement under s 266, dealt
with declarations that had the effect of bringing into existence a debt that
did not previously exist. The liquidator's right to approach the Courl for
2010 (4) SA 499 (SCA)
2016 (6) SA 181 (SCA)
10
such relief arises when certain events occur, for example, a disposition
of property under ss 26 31 of the Insolvency Act. The liquidator
becomes entitled to approach the Court to set the disposition aside and
to declare the liquidator entitled to recover the property. And the
corresponding 'obligation' or 'liability' of the debtor arises immediately
upon the liquidator's entitlement to recover the property."
[37] Hockey AJ found that in the absence of a "debf' the applicants were not
creditors of the respondent and consequently lacked locus standi as
required in section 9(1) of the Insolvency Act.
[38] It is trite that in ascertaining the intention of the legislature in enacting
section 9(1) of the Insolvency Act, the words used must be interpreted
according to their normal grammatical meaning. Section 9(1) of the
Insolvency Act provides:
"(1) A creditor (or his agent) who has a liquidated claim for not less than
fifty pounds, or two or more creditors (or their agent) who in the
aggregate have liquidated claims for not less than one hundred pounds
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."
[39] It is evident that what is required is the existence of a liquidated claim,
which by necessity would be premised on a valid debt. As remarked in
Hassan, what the legislature intended was, that there should be certainty in
connection with the amount of the claim, which was not affected by the
11
legal basis and nature thereof. Certainty can be obtained by agreement, by
other of Court or otherwise.
[40] In Exotic Fruit Company, the respondent opposed the application,
consequently there was no agreement regarding the claim amount. Neither
was an order of Court present which could provide certainty regarding the
claim amount. In the absence of either of these I am of the view that
Hockey AJ correctly concluded that the existence of a liquidated claim was
not established and consequently the applicants locus standi was also not
established.
[41] In Fourie and Cook v Rootman, Greyling AJ, on the facts before him,
found that the applicants relied on alleged dispositions that were not
declared void by order of Court and consequently no debt existed which
could support a liquidated claim.
[42] Whether Greyling AJ's decision was correct is however not something
have to consider or decide upon.
[43] In the present the evidence reveals that payments to the respondent
constituted a loan as alleged by the applicants.12 If no loan existed then the
payments constituted theft of the company's monies, absent any intention
of the company to dispose of its property. On either construction the
payments do not constitute dispositions within the meaning of section 1 of
the Insolvency Act.
12 Founding affidavit at par 11 .1
12
[44] I am satisfied that the applicants have established the existence of a debt
(in the form of a loan or the theft of monies) and a liquidated claim on a
prima facie basis and consequently they have established their locus standi
within the meaning of section 9(1) of the Insolvency Act.
[45] In view of my findings, the present matter is distinguishable from Greyling
AJ's findings and judgment.
[46] Victor N.O. and Others v Liebenberg are furthermore distinguishable
from Fourie and Cook v Rootman on the facts, as illustrated.
[47] Although these authorities may have appeared at first blush to be in conflict
an analysis of the factual findings dispels this notion.
[48] In Estate Saltzmann v Van Rooyen,13 the Court, faced with an application
for the sequestration of a respondent's estate by the liquidators of a
company of which the respondent was managing director, found that the
liquidators possessed sufficient locus standi to seek an order for the
respondent's sequestration on the basis of a claim for monies that were
misappropriated from the company's bank by the respondent. The
respondent did not dispute the debt nor was it challenged in argument. The
Court held that the claim was an enforceable one and that it was a just
claim, established as due.
[49] Returning to the matter at hand, I am inclined to agree with and follow the
judgments of Estate Saltzmann and Victor referred to supra.
13 1944 OPD 1
13
[50] For these reasons I am satisfied that the applicants have established on a
prima facie basis, that the company possess a liquidated claim against the
respondent in the amount of R88,797.40. They have therefore established
their locus standi to bring this application.
ACT OF INSOLVENCY/ FACTUAL INSOLVENCY:
[51] The applicants submit that the respondent has committed an act of
insolvency in terms of section 8(c) of the Insolvency Act. Section 8(c)
provides that a debtor commits an act of insolvency if he makes or attempts
to make any disposition of any or his property, which has or would have the
effect of prejudicing his creditors or of preferring one creditor above
another.
[52] I am not convinced that the respondent disposed of any of his property in
the manner contemplated in section 8(c) of the Insolvency Act. If anything,
it was the property of the company, which was disposed of in the manner
contemplated in section 8(c). This is however not the end of it.
[53] If regard is had to the correspondence addressed by the respondent to the
applicants' attorneys on 1 September 2025, the Court is of the view that this
written notice of the respondent's inability to pay his debts constitutes an
act of insolvency within the meaning of section 8(g) of the Insolvency Act,
which provides that a debtor commits an act of insolvency if he gives notice
in writing to any of his creditors that he is unable to pay any of its debts.
14
[54] Furthermore, the evidence contained in the founding affidavit prima facie
establishes the respondent's factual insolvency. The applicants conducted
a deed search which revealed that the respondent does not own any
immovable property. While the applicants admittedly have no first-hand
knowledge of the respondent's other assets or liabilities, the respondent's
own admission of his financial struggles and "more liabilities" strongly
supports at least a prima facie inference that his liabilities, including the
debt to the company exceeds his assets.
[55] I am therefore satisfied that the applicants' have established, prima facie,
that the respondent has committed an act of insolvency within the meaning
of section 8(g) of the Insolvency Act and that the respondent's estate is
factually insolvent.
ADVANTAGE TO CREDITORS:
[56] The final requirement is that there must be reason to believe that
sequestration will be to the advantage of the respondent's creditors.
[57] In Stratford and Others v Investec Bank Ltd and Others, 14 the
Constitutional Court confirmed that this implies that:
14
"The facts put before the Court must satisfy it that there is a reasonable
prospect - not necessarily a likelihood, but a prospect which is not to
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
2015 (3) SA 1 (CC) at par 43
15
none at all, but there are reasons for thinking that as a result of enquiry
under the [Insolvency] Act some may be revealed or recovered for the
benefit of creditors that is sufficient."
(58] The correct approach in evaluating advantage to creditors is for a Court to
exercise its discretion guided by the dicta outlined in Stratford by the
Constitutional Court who, in turn, quoted with approval from Meskin and
Co v Friedman. 15
(59] From the evidence it appears that the respondent only has meagre
personal assets to his name and a mountain of debt or liabilities. The
applicants, however, submit that a trustee, once appointed, will be able to
launch a proper investigation into the respondent's affairs to establish
whether the respondent is the owner of any further assets, which could be
liquidated for the benefit of the respondent's creditors.
[60] The applicants further submit that the respondent will have to undergo
insolvency enquiries to assist in the investigation of the respondent's
affairs. The applicants further submit that the respondent has already
confirmed that he is employed and receives income and accordingly his
appointed trustees may investigate and may apply to the Master of the
Court, in terms of section 23(5) of the Insolvency Act, to attach and utilise
the disposal income of the respondent to the benefit of his creditors.
(61] It has been held that the belief that sequestration would yield an advantage
for creditors may not only be established by the debtor having property but
15 1948 (2) SA 555 (W) at 559
16
may also be indicated by facts to the effect that the estate administration
process may lead to the acquisition or recovery of property beneficial to
creditors. The unearthing of assets and recovery through the setting aside
of voidable or undue preferences have been recognised by our Courts as
factors which could yield an advantage to creditors.16
[62] On the facts of the present case, the respondent admitted he possesses
very few assets in his name. As illustrated, this is, however, not the only
factor to be taken into consideration.
[63] The respondent admittedly received substantial sums of money from the
company shortly before its liquidation. An appointed trustee would be
empowered to conduct an insolvency inquiry to determine what became of
these funds, and also to investigate the respondent's broader financial
affairs. The possibility that such an investigation may unearth further
assets or lead to the recovery of funds constitutes a distinct advantage to
creditors.
[64] Furthermore, the respondent confirms that he is employed and receives an
income. A trustee would be able to investigate this income and, if
appropriate, apply to the Master for a portion thereof to be made available
to the creditors in terms of section 23(5) of the Insolvency Act.
[65] I am accordingly satisfied that there is reason to believe that the
sequestration of the respondent's estate will be to the advantage of
creditors.
16 Stratford and Others v Investec Bank Ltd and Others, par 46
17
CONCLUSION:
[66] The applicants have complied with all the formal requirements for the
application and have also established the material requirements for the
Court to grant an order for the provisional sequestration of the respondent's
estate.
[67] The provisional sequestration order will have a return date. In order to cater
for the return date to be reflected in the body of the order, I will allow the
applicants to avail a draft order for signature on the exact terms of the order
appearing below, save that a specific date obtained from the Registrar of
this Court shall be inserted in paragraph 2 of the order below.
THE ORDER:
[68] In the result I make the following order:
1. The estate of the respondent, Andries Jan Gysbert Naude, Identity
Number 660929 5031 084, be and is hereby placed under provisional
sequestration in the hands of the Master of the High Court, Pretoria.
2. The respondent and any other interested parties are called upon to
show cause, if any, to this Court on [A date to be obtained from the
Registrar of Court] 2026 at 1 0h00 or so soon thereafter as the matter
may be heard why a final order for sequestration should not be granted
against the respondent's estate.
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3. A copy of this Order shall be forthwith served upon the respondent
personally.
4. A copy of this Order shall be published in the Government Gazette and
in the Citizen newspaper.
5. A copy of this Order shall be served on:
5.1. The South African Revenue Services, Pretoria; and
5.2. The Master of the High Court, Pretoria.
6. The costs of this application shall be costs in the sequestration of the
TING JUDGE OF THE HIGH COURT
PRETORIA
Heard:
Delivered:
APPEARANCES :
Applicants' counsel:
Applicants' attorneys:
26 February 2026
_May2026
R Loibner
Herman Esterhuizen Smalman Attorneys