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document in compliance with the law and SAFLII Policy
IN THE HIGH COURT OF SOUTH AFRICA
FREE STATE DIVISION, BLOEMFONTEIN
Not reportable
Case no: A51/2025
In the matter between:
MARGARETHA ALETTA NOTLEY APPELLANT
And
THE SMALL ENTERPRISE FINANCE AGENCY SCO LIMITED RESPONDENT
Neutral citation: Notley v The Small Enterprise Finance Agency SCO Ltd (A51/2025)
[2026] ZAFSHC 319 (29 May 2026)
Coram: Van Zyl, Loubser et Chesiwe, JJ
Heard: 23 March 2026
Delivered: 29 May 2026
Summary: Appeal against f inal order of sequestration – whether the court a quo
had the necessary jurisdiction to make such an order.
____________________________________________________________________________________
ORDER
____________________________________________________________________________________
The appeal is dismissed with costs on the party and party scale, including the fees of
counsel on scale B.
JUDGMENT
____________________________________________________________________________________
Loubser J (Van Zyl et Chesiwe JJ concurring)
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[1] This is an appeal against an order of final sequestration handed down by the
court a quo against the appellant on 14 November 2024 in this Division. The appeal
came before this Court with the leave of the court a quo. However, leave was granted to
appeal only against the finding of the court a quo that it had the necessary jurisdiction to
order a final sequestration. This finding was based on the alleged place of residence of
the appellant.
[2] In its founding affidavit for sequestration the now respondent, then featuring as
the applicant, claimed that the Free State High Court had the necessary jurisdiction to
entertain the matter by virtue of the fact that the now-appellant was domiciled within the
area of jurisdiction of the court. It further alleged that the appellant was indebted to it in
the amount of some R40 million in terms of a summary judgment granted against her by
the Free State High Court on 4 November 2021. The respondent then stated that the
appellant was unable to pay her debt s and that she was factually insolvent. The
respondent concluded by pointing out that a WinDeed search had shown that the
appellant had no immovable properties registered in her name, but that the application
would be served on the appellant at her domicilium and business addresses. The
appellant’s domicilium address was stated as 1[ …] D[… ] Street, Bayswater,
Bloemfontein, and her business address as 7 Chris Hani Street, Westdene,
Bloemfontein.
[3] The appellant did not oppose the application for provisional sequestration an d
as a consequence her estate was placed under provisional sequestration by Daniso J of
this Division on 18 July 2024. When the return date for the granting of a final order of
sequestration was approaching, the appellant did indeed file an opposing affidavit, and
the matter came before the court a quo for adjudication.
[4] In he r opposing affidavit, the appellant stated that she is not domiciled in the
[4] In he r opposing affidavit, the appellant stated that she is not domiciled in the
Free State and that she permanently resides in Cape Town since the end of 2022 at
Esra Towers. For these reasons, the Free State court has no jurisdiction to order her
sequestration, she submitted. She went further to say that the application papers were
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never served on her, wit h the result that she did not know that she had to oppose the
provisional application before a given date. In any event, she denied that she ever
chose a domicilium at Dersley street, Bloemfontein, for purposes of sequestration. In
addition, she has no business address in the Free State as alleged, she said.
[5] In response to these allegations, the respondent filed a replying affidavit. In this
affidavit it is pointed out that some seven months before the order of provisional
sequestration was made, the Bloemfontein attorneys of the appellant advised the
respondent’s attorneys in writing that “our client is currently in Cape Town and is it our
instruction to accept the application on her behalf”. This i nformation was provided in
response to a letter from the respondent ’s attorneys that an application for the
appellant’s sequestration would be lodge d. The respondent therefore concluded in the
affidavit that the application was, as a result, furnished to the appellant in the manner
chosen by her. Her reliance on the alleged failure to effect personal service on her, was
of no consequence, it was stated.
[6] As for the question of juris diction, the respondent submitted in the replying
affidavit that the appellant had failed to place any evidence before the court of her
alleged relocation to Cape Town . In this respect the attention of the court a quo was
drawn to a tracing report dated during or about July 2024 in which the residential
address of the appellant was reflected as Unit 1[ …] , B[…] W[…] G[…] , N.P. Van Wyk
Louw S treet, Langenhovenpark, Bloemfontein. In addition, a CIPC Director Report
drawn from the electronic record keeping system of the Companies and Intellectual
Property Commission, was placed before the court via this affidavit. The report shows
that the appellant was affiliated to at least 26 different entities , the respondent alleged .
She is shown as an active member of two close corporations which have their
She is shown as an active member of two close corporations which have their
registered addresses in Bloemfontein. The result is that the appellant conducts business
within the jurisdiction of the Free State court, and that she did have assets in the form of
a members interest in the close corporations concerned, it is submitted in the replying
affidavit.
[7] These were then the allegations relating to the jurisdiction of the court that
served before the court a quo . In his judgment, Hefer AJ mainly relied on the fact that
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the appellant had failed to place any evidence before court of her alleged relocation to
Cape Town. Contrary hereto, the respondent presented a tracing report indicating that
the residential address of the appellant is in Langenhovenpark, Bloemfontein. He then
alluded to the fact that the CIP C report only deals with the business known as Retmil
Consulting CC and not with the other businesses alleged as well. Retmil Consulting CC
has its registered address at 7 Chris Botha Street, Westdene. In the tr acing report, this
address is also indicated as the employment address of the appellant. The learned
Judge then went on to indicate that the sheriff was unable to effect personal service of
the papers on the appellant at her alleged domicile address, or at her residential
address in Langenhovenpark or at the address of Retmil Consulting CC, because she
was not present at any of those addresses. On the other hand, he took note of the letter
of the appellant’s Bloemfontein attorney which stated that the appellant is ‘currently’ in
Cape Town. The learned Judge took this to mean that the appellant was only visiting
Cape Town on a temporary basis and not residing there permanently.
[8] In conclusion, the trial Judge ‘was satisfied’ that the respondent has succeeded
in proving on a balance of probabilities that the appellant is indeed residing in
Bloemfontein, and that the court is consequently vested with the necessary juri sdiction
to adjudicate the matter.
[9] Before us it was submitted by counsel appearing for the appellant that the court
a quo should have found that the respondent had failed to prove that the appellant is
residing and/or domiciled in the jurisdiction of the trial court. Despite its best efforts, the
respondent never made any factual allegations indicating that the appellant was
domiciled or resided in Bloemfontein. On the contrary, the sheriff could not find the
appellant in Bloemfontein to serve the papers on her . In such circumstances, the
appellant in Bloemfontein to serve the papers on her . In such circumstances, the
version of the appellant that she is residing in Cape Town, could never have been
rejected as palpably false, it was submitted.
[10] Now as a point of departure reference must b e made to the provisions of s
21(1) of the Superior Courts Act 10 of 2013. This section provides that a Division has
5
jurisdiction over all persons residing or being in its area of jurisdiction. The question in
this matter is therefore whether the court a quo was correct to find that, on a balance of
probabilities, the appellant was residing in Bloemfontein.
[11] In t his respect the respondent presented a tracing report indicating that the
appellant is residing in Langenhovenpark, Bloemfontein. In addition, the respondent
relied on a domicilium address of the appellant in Bayswater, Bloemfontein, in its
founding papers. This domicilium address appears to have come from a prior written
agreement between the appellant and the respondent . This evidence cannot be
regarded as insignificant or without any factual import.
[12] The appellant made an effort to contradict this evidence by merely stating that
she resides permanently at Esra Towers in Cape Town. No additional evidence was
offered by the appellant to subst antiate this allegation. Her attorney’s letter indic ating
that she was ‘currently’ in Cape Town also did not underscore the notion that she was
residing there permanently. The court a quo was therefore correct in finding that the
appellant had failed to place any evidence before the court of her alleged relocation to
Cape Town.
[13] Having regard to the fact that the court a quo was dealing with motion
proceedings, the following words of Heh er JA in the Supreme Court of Appeal matter of
Wightman t/a JW Const ruction v Headfour (Pty) Ltd and Another 1 are apposite in the
present circumstances:
‘Recognizing that the truth almost always lies beyond mere linguistic determination the courts
have said that an applicant who seeks final relief on motion must in the event of conflict, accept
the version set up by his opponent unless the latter’s allegations are, in the opinion of the court,
not such as to raise a real, genuine or bona fide dispute of fact or are so far -fetched or clearly
untenable that the court is justified in rejecting them merely on the papers: Plascon-Evans
untenable that the court is justified in rejecting them merely on the papers: Plascon-Evans
1 Wightman t/a JW Construction v Headfour (Pty) Ltd and Another [2008] ZASCA 6; 2008 (3) SA
371 (SCA) paras 12-13.
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Paints Ltd v Van Riebeeck Paints (Pty) Ltd [1984] ZASCA 51 ; 1984 (3) SA 623 (A) at 634E -
635C. . . . 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. . . . 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.’
[14] Based on this exposition of the law in motion proceedings where final relief is
sought, this court has to find that the appellant has failed to seriously and
unambiguously address the fact that she was perman ently resident in Cape Town. As a
consequence, this court also has to find that the court a qu o was correct in coming to
the conclusion that the respondent has succeeded in proving that the appellant is
indeed residing in Bloemfontein within the jurisdiction of the court.
[15] Apart from the question whether the appellant was resident or present in the
court’s area of jurisdiction in terms of s 21(1) of the Superior Courts Act, the provisions
of s 149 of the Insolvency Act no 24 of 1936 must also be considered by this court.
Section 149 provides as follows:
‘(1) The Court shall have jurisdiction under this Act over every debtor and in regard to the estate
of every debtor who -
(a) on the date on which a petition for the acceptance of the surrender or for the sequestration
of his estate is lodged with the registrar of the Court, is domiciled or owns or is entitled to
property situate within the jurisdiction of the Court ; or
(b) at any time within twelve months immediately preceding the lodging of the petition ordinarily
resided or carried on business within the jurisdiction of the Court.’
resided or carried on business within the jurisdiction of the Court.’
[16] The question is then whether the respondent has succeeded in showing that
the appellant had carried on business within the jurisdiction of the court as a further
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ground for the finding of jurisdiction. In this respect the abovementioned CIPC report
presented by the respondent in the papers, is relevant. The report shows that the
appellant is the only active member of the close corporation Retmil Consulting, and that
its registered address is situated in Bloemfontein. The appellant has been a member of
the corporation since 1 December 2005, and the corporation is indicated to be in
business. The report is dated 14 October 2024. It further appears that the corporation
had been deregistered for some periods of time over the years due to its failure to
submit returns, but on 14 July 2023 the deregistration process was cancelled.
[17] The notice of motion for the appellant’s sequestration was filed with the registrar
on 28 May 2024. The appellant therefore carried on business within the area of
jurisdiction of this court at a time falling within the period of twelve months preceding the
lodging of the application .
[18] It follows that in addition to the ground of residence, the appeal can also not
succeed on the ground of carrying on business within the area of jurisdiction of the Free
State High Court.
[19] The following order is made:
The appeal is dismissed with costs on the party and party scale, including the fees of
counsel on scale B.
____________________
P J LOUBSER
JUDGE OF THE HIGH COURT
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I concur.
____________________
C VAN ZYL
JUDGE OF THE HIGH COURT
I concur.
____________________
S CHESIWE
JUDGE OF THE HIGH COURT
Appearances
For the plaintiff: S J Reinders
Instructed by: Van Wyk and Preller Attorneys,
Bloemfontein
For the first defendant: R van der Merwe
Instructed by: Tim du Toit & Co. Incorporated, Pretoria
c/o Phatsoane Henney Attorney, Bloemfontein