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[2026] ZAGPJHC 703
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Shackleton Credit Management (Pty) Ltd v Kidige (2025/08432) [2026] ZAGPJHC 703 (22 June 2026)
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REPUBLIC OF SOUTH
AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, JOHANNESBURG
Case
Number: 2025-084321
(1)
REPORTABLE: NO
(2)
OF INTEREST TO OTHER JUDGES: NO
(3)
REVISED: YES
22
JUNE 2026
In the matter between:
SHACKLETON
CREDIT MANAGEMENT (PTY) LTD
Applicant
and
PINTO
OMONGE
KIDIGE
Respondent
This Judgment is handed
down electronically by circulation to the Applicant’s Legal
Representative and the Respondent by email,
publication on Case
Lines. The date for the handing down is deemed to be 22 June 2026 at
10h00.
Insolvency
- Compulsory sequestration -
Application for a final order of
sequestration granted.
JUDGMENT
MUDAU, J:
Introduction
[1]
This is an application for a final
sequestration order against the estate of the respondent, Mr Pinto
Omonge Kidige. The applicant,
Shackleton Credit Management (Pty) Ltd,
is a judgment creditor of the respondent. This Court granted a
provisional sequestration
order on 20 February 2026. The respondent
filed an answering affidavit on 5 March 2026, a supplementary
answering affidavit on
13 May 2026, and heads of argument on 14 May
2026, opposing the confirmation of the rule nisi and seeking the
discharge of the
provisional order.
[2]
At the heart of this dispute is whether the
respondent has committed an act of insolvency, or is factually
insolvent, and whether
there is reason to believe that the
sequestration of his estate will be to the advantage of his
creditors. Having carefully considered
the papers, the heads of
argument filed on behalf of both parties, and the law, I am satisfied
that the applicant has made out
a clear case for a final
sequestration order. The respondent’s opposition is, in my
view, without merit and falls to be dismissed.
Factual Background
[3]
The relevant facts are largely common cause
or are established by undisputed documentary evidence. The respondent
concluded a written
credit agreement for a personal overdraft with
Absa Bank on 5 January 2021. Absa Bank ceded all its rights, title,
and interest
in the respondent’s debt to the applicant on 15
November 2022. On 16 November 2023, the applicant obtained a default
judgment
against the respondent in the High Court. The outstanding
judgment debt, as of May 2025, was certified as R514,899.22, a fact
the
respondent does not genuinely dispute.
[4]
The applicant attempted to execute on the
judgment. A writ of execution against the respondent’s movable
assets was issued
on 3 January 2024. The sheriff attached certain
goods, but the attachment was thwarted when the respondent’s
spouse filed
an interpleader claim. Critically, in that interpleader
claim, the spouse disclosed that the respondent held a 100% members’
interest in Profound World IT Solutions CC, valued at R2 million.
[5]
Armed with this information, the sheriff
sought to execute on that members’ interest. On 3 February
2025, a mere matter of
days before the sheriff could serve the writ,
the respondent resigned as the sole member of Profound World CC and
transferred his
entire 100% members’ interest to his
22-year-old son, Troy Isaac Kidige. The respondent’s
explanation for this transaction
is that it was a
bona
fide
commercial decision to enable
the close corporation to access credit using his son’s better
credit standing.
[6]
After this transfer, the applicant launched
these sequestration proceedings on 5 June 2025. In December 2025, the
parties entered
into a written settlement agreement wherein the
respondent acknowledged his indebtedness and undertook to pay R5,000
per month.
The respondent failed to make the first payment due in
December 2025, causing the agreement to lapse. Despite this breach,
the
respondent made sporadic payments of R5,000 in February 2026 and
R10,000 in April 2026, which the applicant has not accepted as
performance under the lapsed agreement.
Legal Framework
[7]
Section 12 (1) of the Insolvency Act 24 of
1936 (‘the Act’) provides that a final sequestration
order may be granted
if the applicant satisfies the Court that:
a)
the applicant has a liquidated claim
against the debtor of not less than R100;
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 the debtor’s
estate is sequestrated.
[8]
In
motion proceedings, a respondent who disputes the applicant’s
version must do more than raise a bare denial. As the Supreme
Court
of Appeal held in
Wightman
t/a JW Construction v Headfour (Pty) Ltd and Another
,
[1]
a party raising a dispute of fact must ‘seriously and
unambiguously address the fact said to be disputed’. Where the
facts are within the respondent’s personal knowledge, and he
fails to provide a proper answer or countervailing evidence,
the
Court is entitled to reject his version as bald and uncreditworthy.
Analysis
Locus Standi
[9]
The first requirement is easily met. The
applicant holds a judgment debt against the respondent, which is a
liquidated claim exceeding
R100. The respondent attempts to dispute
the precise quantum, alleging that his payments have not been
accounted for. However,
he has failed to put up any proper proof of
payment or a detailed reconciliation. His bare assertion is
insufficient to create
a genuine dispute of fact. The judgment debt
stands, and the applicant’s
locus
standi
is firmly established.
Act of Insolvency:
section 8 (c)
[10]
The central issue is whether the
respondent’s disposal of his 100% members’ interest in
Profound World CC to his son
constitutes an act of insolvency under
section 8 (c) of the Act. Section 8 (c) provides that a debtor
commits an act of insolvency
if he makes any disposition of his
property which has the effect of prejudicing his creditors. The test
is objective: the debtor’s
subjective intention is irrelevant.
One must look at the effect of the disposition on the creditor’s
ability to recover the
debt.
[11]
The facts here are compelling. On 23
January 2025, the sheriff was armed with a writ to execute against
the respondent’s members’
interest. On 3 February 2025,
just days before the writ could be served, the respondent transferred
that very interest, valued
at R2 million, to his son. The objective
effect of this disposition is clear: it placed a valuable, executable
asset out of the
reach of the respondent’s creditors, including
the applicant. The transfer was made under the shadow of imminent
execution.
[12]
The
respondent’s explanation – that the transfer was to allow
the business to access credit through his son’s
better credit
profile – is, with respect, implausible and does not change the
objective reality. The timing is far too coincidental.
Even accepting
his explanation
arguendo
,
the law is clear that subjective intent is not the test. The test is
whether the disposition prejudiced creditors.
[2]
It manifestly did. As the court held, in
Fittinghoff
and Others v Stockton
[3]
by
way of analogy that
,
passing
and registration of a mortgage bond over the debtor’s immovable
property to secure a debt of business to one creditor,
at a time when
debtor not paying creditors and the business ventures are in
financial difficulties amounted to act of insolvency
in terms of
section 8 (c) of Act.
[13]
I therefore find that the respondent
committed a clear act of insolvency as defined in section 8 (c) of
the Act. This finding alone
is sufficient to satisfy the second
jurisdictional requirement. For the sake of completeness, I also note
the
nulla bona
return
obtained by another creditor, Dipula Property Investment Trust, which
serves as further evidence of the respondent’s
inability to
satisfy his debts.
Factual Insolvency
[14]
Even if I were wrong on the act of
insolvency, the applicant has amply demonstrated that the respondent
is factually insolvent.
The documentary evidence reveals a debtor
overwhelmed by liabilities. The respondent has multiple substantial
judgment debts: R514,899.22
to the applicant; R2,692,117.80 to S B
Guarantee (RF) (Pty) Ltd; R1,463,051.63 to Dipula Property Investment
Trust; and a judgment
debt to Absa Bank which, even after a sale of
property, left a shortfall of R160,317. He is in significant arrears
on municipal
rates and levies, owing over R300,000.
[15]
The
respondent’s claim that he is solvent rests on the most
speculative of foundations: an unliquidated, disputed claim against
the Road Accident Fund (RAF) and claims against attorneys for fees.
The RAF claim is for R43 million but remains subject to ongoing
litigation. It is contingent, disputed, and cannot be realised in the
short term. Such a claim cannot be relied upon to demonstrate
solvency or to ward off sequestration. As the court famously observed
in
De
Waard v Andrew & Thienhaus Ltd
,
[4]
‘the best proof of solvency is that a man should pay his
debts’. The respondent does not pay his debts. He is
demonstrably
insolvent.
Advantage to creditors
[16]
The
final requirement is that there is reason to believe sequestration
will advantage creditors. This does not require proof that
a dividend
is guaranteed. It is sufficient that there is a reasonable prospect –
not too remote – that some pecuniary
benefit will result.
[5]
This includes the prospect that a trustee’s investigation may
reveal or recover assets for the benefit of creditors.
[17]
Here, the respondent still owns two
immovable properties with a combined value of over R7.6 million. A
trustee can realise these
properties. Furthermore, the circumstances
surrounding the transfer of the Profound World members’
interest cry out for investigation.
There is a real prospect that a
trustee may be able to set aside that disposition as an impeachable
transaction under the Act.
The respondent’s opaque financial
affairs, with multiple corporate entities, also warrant a proper
enquiry.
[18]
The respondent argues that sequestration
would ‘destroy value’ and that he has a ‘concrete
plan’ to pay
his creditors from imminent litigation proceeds.
This argument is a mirage. The litigation proceeds are uncertain and
not imminent.
The sporadic payments he has made are a fraction of
what he owes. His ‘plan’ is nothing more than a hope. In
the meantime,
his other creditors remain unpaid. A debtor who is
factually insolvent and who has committed an act of insolvency cannot
avoid
sequestration by promising future payment from speculative
sources. To hold otherwise would render the sequestration remedy
meaningless.
The Respondent’s
onus and the settlement agreement
[19]
The respondent has failed to discharge the
onus resting on him to rebut the applicant’s prima facie case.
His answering affidavit
is replete with bald denials, unsupported
assertions, and a failure to engage seriously with the damning
objective facts. His argument
regarding the settlement agreement is a
red herring. He admitted breaching it by failing to make the first
payment. The agreement
lapsed. Any subsequent payments were voluntary
and do not revive the agreement. The applicant was under no
obligation to disclose
a lapsed agreement that no longer governed the
parties’ relationship.
Conclusion and costs
[20]
The applicant has satisfied all three
jurisdictional requirements for a final sequestration order. The
respondent has committed
an act of insolvency under section 8 (c). He
is, in any event, factually insolvent. There is a clear and
reasonable prospect that
sequestration will benefit his creditors by
enabling the orderly realisation of his remaining assets and an
investigation into
his past dealings. The respondent’s
opposition, characterised by vague promises and an implausible
explanation for the transfer
of his members’ interest, is
without substance.
Order
[21]
In the result, the following order is made:
1. The provisional
sequestration order granted by this Court on 20 February 2026 is
hereby confirmed.
2. The estate of
the respondent, PINTO OMONGE KIDIGE, is finally sequestrated.
3. The costs of the
sequestration application be included in the costs of the
sequestration, on the scale as between party
and party in accordance
with scale B. The costs of this application shall be costs in the
sequestration of the respondent’s
estate.
MUDAU J
JUDGE OF THE HIGH
COURT
GAUTENG DIVISION,
JOHANNESBURG
Date
of Hearing:
08 June 2026
Date of
Judgment:
22 June 2026
APPEARANCES:
For
the Applicant:
Adv TL Smith
Instructed
by:
Lynn & Main Attorneys
For
the Respondent:
Adv
I Mureriwa
Instructed
by:
CSM Attorneys
[1]
[2008] ZASCA 6
;
2008
(3) SA 371
(SCA) at
[13]
.
[2]
De
Villiers No v Maursen Properties (Pty) Ltd
1983 (4) SA 670
(T) at p675 – 676.
[3]
1997
(1) SA 535
(W) at p545F – H.
[4]
1907
TS 727
at 739.
[5]
Meskin
& Co v Friedman
1948 (2) SA 555
(W) at p559.