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REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, PRETORIA
CASE NO.:018627/23
(1) REPORTABLE: NO
(2) OF INTEREST TO OTHER JUDGES: NO
(3) REVISED: NO
Date: 1 June 2026
E van der Schyff
In the ex parte application of:
GERHARDUS CHRISTIAAN BREEDT FIRST APPLICANT
IDENTITY NUMBER: 9[...]
JOANETTE ADRIJANE BREEDT SECOND APPLICANT
IDENTITY NUMBER: 9[...]
and
DANIESE ELAINE STEYN N.O. FIRST RESPONDENT
VIMBAI ANGELA TSOPOTSA N.O. SECOND RESPONDENT
MASTER OF THE HIGH COURT, PRETORIA THIRD RESPONDENT
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
[1] This is an application for the rescission of a sequestration order. The applicants,
who are married in community of property, seek to set aside the order granted by this
Court on 6 September 2023 under case number 018627/23 . In terms of that order, the
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voluntary surrender of their joint estate was accepted and placed under sequestration in
the hands of the Master of the High Court.
[2] The applicants themselves launched the initial voluntary surrender proceedings.
They now contend that the sequestration order ought neither to have been sought or
granted.
The factual basis for the relief sought
[3] The voluntary surrender order was granted on 6 September 2023. That application
was prepared, and the resulting order obtained, through the same attorney of record
currently instructed in these proceedings.
[4] In their founding affidavit, the applicants contend that the surrender order was
erroneously sought and granted. They aver that the initial application was brought bona
fide, but maintain that material facts subsequently came to light which, had they been
known at the time, would have altered their course of action.
[5] In the initial application, the applicants disclosed a cash amount of R69,000.00 as
the sole asset in their joint estate.
[6] It subsequently transpired that additional movable assets existed, comprising two
paid-up motor vehicles and a caravan inherited after the surrender. These assets were
omitted from the initial statement of affairs because the applicants erroneously believed
that paid-up vehicles, as daily necessities, were exempt from attachment in an insolvent
estate.
[7] The applicants depend on these vehicles for employment -related travel and
contend that public transport is unviable. They argue that forfeiting these assets would
imperil their livelihood and submit that the omission arose from a bona fide
misconception.
[8] The applicants state that these undisclosed assets have prevented the trustees
from winding up and finalising the insolvent estate. This impasse was brought to the
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applicants' attention in August 2024. They attribute the subsequent delay in launching this
application to administrative challenges in securing a court date.
[9] The applicants disclaim any mala fides or ulterior motive, maintaining that the
omission was an innocent error and that they never intended to mislead the Court. They
state that their attorney would have advised against the voluntary surrender had the true
asset position been known.
[10] Finally, the applicants aver that family members have pledged financial assistance
to settle their debts. They note, however, that they lack the legal capacity to compromise
with creditors while the sequestration order remains in force.
[11] Consequently, the applicants submit that the interests of justice and convenience
dictate that the order be rescinded, thereby allowing for an outcome more advantageous
to their creditors.
The Legal Framework
[12] The statutory authority for the rescission or variation of a sequestration order is
governed by s ection 149(2) of the Insolvency Act 24 of 1936 (the Act) . This section
provides that a court may rescind or vary any order made by it under the provisions of the
Act.
[13] While the High Court retains its ordinary powers to rescind judgments under
Uniform Rule 42(1)(a) or the common law, standard commercial practice dictates that
applications affecting a sequestration order must be adjudicated under Section 149(2). As
observed by this Court in Maree and Another v Kayi nja and Others,1 Uniform Rule 42 is
generally an inappropriate remedy because sequestration orders do not merely bind the
immediate litigants; they inherently alter the status and rights of third parties, including the
Master, appointed trustees, and the broader body of creditors
1 [2025] ZAGPJHC 751 (31 July 2025) at para 6.
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[14] Section 149(2) grants the Court wide discretion, not limited to common -law
grounds, to rescind orders based on "unusual, special, or exceptional circumstances".2 As
established in Storti v Nugent and Others 3 and reaffirmed in Matji v Van Straten NO,4 this
discretion cannot be used for a mere rehash of the original merits. Furthermore, it
requires either demonstrating "sufficient cause" ,5 or proving that the applicant faces
unnecessary hardship and that standard rehabilitation is inadequate. The Court will refuse
relief if it produces undesirable commercial consequences
[15] Importantly, this discretion must be exercised while upholding the concursus
creditorum. As highlighted in Hassan v Berrange NO ,6 a sequestration order is not a
simple inter partes judgment but a "species of execution" that protects the interests of all
creditors, ensuring equitable distribution by the trustee
Analysis and application of law to the facts
[16] To succeed under section 149(2) of the Act, the applicants must establish
circumstances that are unusual, special, or exceptional so as to justify the exercise of the
court’s discretion. On the facts before me, they have failed to do so.
[17] The applicants contend that they omitted two paid -up motor vehicles and a
caravan from their statement of affairs because they believed those assets were exempt
from attachment. Even accepting that explanation, a mistaken understanding of the law
does not constitute an exceptional circumstance for purposes of s 149(2), nor does it
amount to sufficient cause warranting rescission.
[18] Applicants seeking voluntary surrender are under a duty of utmost good faith to
place a full and accurate disclosure of their financial affairs before the Court. The
omission of substantial assets from the statement of affairs was plainly material. To
permit debtors to rescind a sequestration order on the basis of their own failure to make
permit debtors to rescind a sequestration order on the basis of their own failure to make
2 Ward v Smit: In re Gurr v Zambia Airways Corporation Ltd 1998 (3) SA 175 (SCA) at 180G/H-I.
3 2001 (3) SA 783 (W) at 784D-E.
4 (28118/12) [2022] ZAGPJHC 362 (27 May 2022) at para 7.
5 Matji, supra, at para 11 with reliance on Chetty v Law Society, Transvaal 1985 (2) SA 756 (A).
6 2012 (6) SA 329 (SCA) at para 19.
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proper disclosure would undermine the integrity of the voluntary surrender process and
create an undesirable precedent.
[19] The applicants further contend that the undisclosed assets have impeded the
trustees in finalising the administration of the estate. The precise nature of those
difficulties is not explained. In any event, difficulties encountered in the administration of
an insolvent estate do not, without more, justify rescission of the sequestration order. The
Act provides trustees with various investigative and enforcement mechanisms to address
non-disclosure and secure cooperation from insolvents. Administrative challe nges in the
winding up of an estate are therefore not a basis for dissolving the concursus creditorum.
[20] More fundamentally, the applicants do not allege that their estate is solvent. Even
after taking into account the previously undisclosed assets and subsequent inheritance,
there is no suggestion that their assets exceed their liabilities. Instead, they contend that
rescission will enable family members to provide financial assistance so that
arrangements may be made with creditors.
[21] That contention is insufficient. The absence of any allegation of solvency is a
significant obstacle to the relief sought. The purpose of sequestration is to ensure the
orderly administration and distribution of an insolvent estate for the benefit of creditors. In
the circumstances, the applicants effectively seek to be released from sequestration while
remaining insolvent.
[22] The possibility of financial assistance from family members does not alter that
position. No binding commitment has been placed before the Court, nor is there any
evidential basis upon which the Court can conclude that rescission would produce a more
advantageous outcome for creditors than the continued administration of the estate under
the Act. The existence of a concursus creditorum requires that creditors' interests be dealt
with collectively and under the supervision of the trustee
with collectively and under the supervision of the trustee
[23] Finally, the applicants submit that the loss of the motor vehicles would prejudice
their ability to earn an income. While that concern is understandable, personal hardship
does not in itself constitute an exceptional circumstance warranting rescission. The Act
contains mechanisms through which necessary assets may, where appropriate, be
excluded from realisation. The applicants' remedy lies in pursuing such relief within the
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statutory framework, or in due course seeking rehabilitation, rather than in setting aside
the sequestration order.
[24] In the result, the applicants have failed to establish any unusual, special or
exceptional circumstance justifying the rescission of the sequestration order under s
149(2) of the Act. Nor have they demonstrated that rescission would advance the
interests of creditors or otherwise serve the purposes of the insolvency regime. The
application therefore stands to be dismissed.
ORDER
In the result the following order is granted:
The application is dismissed.
____________________________
E VAN DER SCHYFF
JUDGE OF THE HIGH COURT
GAUTENG DIVISION, PRETORIA
For the applicant: Adv. B. Lee
Instructed by: Scheepers Attorneys
Date of the hearing: 18 May 2026
Date of judgment: 1 June 2026