Investec Bank Ltd v Maree and Another (2025/077960) [2026] ZAGPJHC 719 (15 June 2026)

SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this
document in compliance with the law and SAFLII Policy

IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION: JOHANNESBURG

CASE NO: 2025-077960


(1) REPORTABLE: YES / NO
(2) OF INTEREST TO OTHER JUDGES:
YES / NO
(3) REVISED: YES / NO


15 June 2026
DATE


SIGNATURE

In the sequestration application:

In re:

INVESTEC BANK LTD Applicant

and

MAREE; DAWID CORNELIUS Respondent
(Born 16 March 1965)
(Identity No. 6[…]).
(Marital status: Married out of community of property to
Adele Maree, born 29 May 1969, with identity no. 6[…])

ZATOPAX (PTY) LTD Intervening applicant



JUDGMENT


Summary: Return day of provisional sequestration order – Does a provisional sequestration
order lapse if the matter is not heard on its return date but rather on another day in terms of the
IMC’s Continuous Roll? – A Court’s ability to ‘stay’ a provisional sequestration order in terms of
section 12(2) of the Insolvency Act, or otherwise – A Court ability to determine legal questions /
disputes in sequestration proceedings – Can an individual providing a credit guarantee in
respect of the debts of a juristic person / entity rely on Part D of the NCA? – Semble: Possible
scope for extension of advantage to creditors consideration – The application of the lis alibi
pendens doctrine in sequestration proceedings – Litigation is not a game.

AMM, AJ
Introduction

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[1] This judgment concerns the 9 March 2026 return day of a provisional sequestration
order. Investec Bank Limited, as applicant, is the petitioning creditor. Mr. Maree is the
respondent.
[2] The sequestration application is dated 28 May 2025. Theron AJ granted a provisional
sequestration order on 1 October 2025. The return day of the provisional sequestration
order (i.e. the sequestration application) was set down, enrolled, and called for hearing,
before me in the Dedicated Insolvency Motion Court (‘IMC ’). Investec moves for a final
order of sequestration.
[3] While the facts informing the merits of this application are relatively simple and
straightforward, there are many parts to the application and the return day proceedings
before me.
[4] For the reasons set out in in this judgment, the provisional order for Mr. Maree’s estate
is confirmed and a final order of the sequestration is granted.
A synopsis of the sequestration application and parallel proceedings
[5] Investec asserts in its founding affidavit that it advanced an amount of R182,087,750.00
to Viturwell (Pty) Ltd (‘Viturwell’) during December 2020, and that it did so in terms of a
written loan agreement concluded on 18 December 2020.
[6] At the same time (i.e. on 18 December 2020), Mr. Maree bound himself as guarantor for
Viturwell’s indebtedness to Investec. He did so in terms of a written ‘Guarantee and
Indemnity’ (‘the Maree Guarantee’).
[7] Viturwell was required to repay the loan amount by no later than 1 May 2024. It failed to
do so; owing Investec R177,099,578.93. Consequently, Investec claims that both
Viturwell and Mr. Maree are indebted to it in the amount of R177,099,578.93.

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[8] Despite an Investec demand dated 11 October 2024, Mr. Maree failed to pay the
guaranteed indebtedness . Instead, Mr. Maree issued his below -mentioned action
against Investec, seeking relief aimed at setting aside his obligations under the Maree
Guarantee. He did so on 1 November 2024.
[9] Investec obtained an order on 6 December 2024 winding-up Viturwell.
[10] In addition to its claimed status as a creditor of Mr. Maree, Investec asserts in its
founding papers that Mr. Maree has committed acts of insolvency and that Mr. Maree is,
in any event, insolvent. Investec further asserts that Mr. Maree’s sequestration will be
for the benefit of creditors and, moreover, that the Court should exercise its discretion to
sequestrate Mr. Maree ’s estate given Mr. Maree’s alleged ‘track-record of serial
corporate insolvency’, and his ‘participation in the misappropriation of Viturwell funds’.
[11] Mr. Maree, i nvoking the Badenhorst rule,1 disputes his liability to Investec . He denies
Investec’s locus standi as a creditor. He claims to do so on bona fide and reasonable
grounds, anchored in his challenge to the validity of the Maree Guarantee. This
challenge is made under the National Credit Act’s2 reckless credit provisions.
[12] Mr. Maree’s reliance on the Badenhorst rule is imbricated with a plea of lis alibi
pendens.3 During November 2024, Mr. Maree instituted action proceedings in this Court
under case no. 2024-125997 (‘the Maree / Investec action ’). In his action, Mr. Maree
challenges the validity of the Maree Guarantee. He asks for orders (i) declaring that the
Maree Guarantee ‘constitutes a reckless credit agreement’ , and (ii) setting aside his

1 As pronounced / articulated in the decision in Badenhorst v Northern Construction
Enterprises (Pty) Ltd 1956 (2) SA 346 (T), the Badenhorst rule emphasises that sequestration
and liquidation proceedings are not designed to resolve disputes concerning the existence of

and liquidation proceedings are not designed to resolve disputes concerning the existence of
a debt. Accordingly, the Badenhorst rule’s essence is that where a respondent disputes the
debt alleged to be owed to the petitioning creditor on bona fide and reasonable grounds, a
sequestration or liquidation application (as the case may be) ought, as a general rule, to be
dismissed.
2 Act, No. 34 of 2005, and its Part D.
3 Lis alibi pendens is a Latin legal phrase translated as "a (legal) suit pending elsewhere".

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rights and obligations under the Maree Guarantee, alternatively for an order suspending
‘the force and effect’ of the Maree Guarantee for a period of two years.
[13] Mr. Maree also relies upon other pending parallel proceedings related directly or
indirectly to the Viturwell indebtedness, the Maree G uarantee, or both. These
proceedings include:
[13.1] Investec’s application against Santam under case no. 2024-124964 in this
Court, dated 30 October 2024 ( ‘the Investec / Santam application’). Investec’s
cause of action is premised on a 2020 Santam guarantee issued in favour of
Investec for the obligations owed to Investec by Viturwell (‘the Santam
Guarantee’). Investec seeks a money judgment against Santam in an amount
of R177,879,379.00 plus interest at 11.5% per annum a tempore morae from 9
October 2004 to date of final payment, and costs. Santam opposes the
Investec / Santam application on the basis that the Santam Guarantee is
unenforceable.
[13.2] Santam’s application proceedings against Mr. Maree (the third respondent
therein) and others under case no. 2025-052338 also in this Court, dated 20
June 2025 (‘the Santam / Maree application’). Santam proceeds against Mr.
Maree in terms of a written deed of surety and indemnity. In his deed of surety
and indemnity, Mr. Maree bound himself – together with others – as surety in
favour of, and indemnified, Santam for the obligations owed by Viturwell as a
consequence of the Santam Guarantee. Santam pursues Mr. Maree on the
basis of an Investec demand against it and subsequently the Investec /
Santam application. Santam thus seeks, amongst other relief, a money
judgment against the defendants , jointly and severally , in an amount of
R177,879,379.00 plus interest at 2 % above the prime overdraft rate charged
by Absa from date of demand / payment to Investec, and attorney and client

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costs. Santam alleges in its founding affidavit that Mr. Maree has purported to
terminate and extricate himself from his deed of surety and indemnity.
[14] Mr. Maree’s answering affidavit is accompanied by a counter -application (dated 21
August 2025). Therein, he essentially asks for an order that, if the sequestration
application is to be heard on 22 August 2025, that it ‘be postponed sine die and not
again be enrolled without leave of the court’, and then not until the finalisation of the (i)
Investec / Santam application, (ii) the Santam / Maree application, and/or (iii) the Maree
/ Investec action.
[15] Mr. Maree’s additional grounds of opposition to the sequestration application include
inter-alia an unenthusiastic challenge to the personal knowledge of the deponent to
Investec’s founding and replying affidavits, and an alleged absence of an advantage to
creditors should his estate be sequestrated.
The Theron AJ provisional sequestration order and the related sequestration
proceedings
[16] The provisional sequestration order granted by Theron AJ is accompanied by Theron
AJ’s pithy judgment. Theron AJ ’s judgment reveals that the proceedings before him
were hydra-headed and included, in addition to the sequestration application itself, the
following:
[16.1] Mr. Maree’s already mentioned ‘counter-application’ for postponement (dated 21
August 2025);4
[16.2] Mr. Maree’ s unsuccessful application for Theron AJ’s recusal (dated 11
September 2025); and

4 The respondent’s notice of counter -application is incorrectly dated 21 August 2021 . The
respondent’s accompanying answering affidavit is correctly dated 21 August 2025.

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[16.3] Mr. Maree’s obtusely worded, but unsuccessful, application for leave to appeal
(dated 23 September 2025) – this application is aimed at Theron AJ’s dismissal
of the recusal application, albeit Mr. Maree appears not to have prosecuted his
leave to appeal application.
[17] Not content to leave matters there, Mr. Maree brought a further application. He did so
17 October 2025. In this (fourth) application, Mr. Maree seeks an order ‘staying’ the
Theron AJ provisional sequestration order ‘pending the final determination of the appeal
against the order refusing [Mr. Maree’s] recusal application’.
[18] Similarly, Mr. Maree does not appear to have prosecuted this particular ‘stay’
application. I say so because the last discernible CaseLines’ event concerning t his
application is Mr. Maree’s mid-December 2025 filing of his replying affidavit. Mr. Maree’s
October 2025 ‘stay’ application was also not enrolled for hearing, nor was it pursued,
before me.5
The provisional sequestration order’s return day proceedings
[19] The (Monday) 9 March 2026 return day proceedings, like the provisional sequestration
proceedings before Theron AJ, were eventful.
[20] In the exercise of my discretion, and in managing both the opposed and unopposed rolls
of the Insolvency Motion Court, I had allocated the matter for hearing on Tuesday, 10
March 2026 (the allocation being communicated and subsequently confirmed on 6
March 2026).
[21] Despite the allocation, towards the end of my hearing of those unopposed matters
allocated for hearing on 9 March 2026 in the Insolvency Motion Court, Mr. Malherbe,
appearing for Mr. Maree and Mr. Braga appearing for Zatopax (Pty) Ltd (‘Zatopax’) rose,

5 There was however a reference thereto in a belated practice note within the context of the
return day provided penned by Mr Van Rensburg SC for Mr. Maree.

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and announced themselves and placed themselves on record in respect of the
application. Mr. Braga advised me that Zatopax was a creditor seeking leave to
intervene in the sequestration application.
[22] Messrs. Malherbe and Braga submitted that because I would not be dealing with the
sequestration application on the 9 March 2026 return day of the provisional
sequestration order (given its 10 March 2026 allocation) , the provisional sequestration
order would lapse.
[23] While I disallowed any argument on the issue given that there was no appearance for
Investec - whose legal team were no doubt expecting that the matter would be called in
accordance with its 10 March 2026 allocation - I nevertheless communicated my prima
facie disagreement with their submission. I also advised them that even if my prima
facie view was incorrect, the application had now , to all intents and purposes been
called, and that it had now been stood down for argument to 10 March 2026, in line with
its allocation.
The appearances on Tuesday, 10 March 2026
[24] When the application was (again) called before me in terms of its allocation on 10 March
2026 on the Insolvency Motion Court Roll , Mr. Sawma SC and Mr. Hoffman appeared
for Investec. Mr. Malherbe again appeared for Mr. Maree. Mr. Griesel now appeared for
Zatopax.
[25] Mr. Griesel referenced Zatopax’s intervention application (dated 6 March 2026), in
which Zatopax sought a n order for its intervention in the sequestration application and
an order that all pleadings filed of record be served upon his client within 10 (ten) days
of the intervention order.

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[26] Mr. Maree had, in the interim and in terms of a notice of motion dated 9 March 2026,
delivered a further (fifth) application in the sequestration proceedings . Like his fourth
application, Mr. Maree sought an order for the ‘stay’ of the provisional order , albeit he
now sought a ‘stay’ pending the final determination of the Investec / Santam application.
[27] Despite Mr. Maree’s request for what is essentially an indefinite ‘stay’ of the provisional
order, Mr. Malherbe, at the commencement of the hearing and in response to my
enquiry, advised that Mr. Maree in fact sought only a one month extension of the return
day.
[28] Mr. Sawma SC advised me that Investec vigorously opposed Zatopax’s intervention
application, Mr. Maree’s belated stay application, and Mr. Maree’s request for a one
month extension of the provisional sequestration order . Mr. Sawma SC , however,
advised that if I was inclined to extend the return day of the provisional sequestration
order, Investec would request an opportunity to file further papers.
Did the provisional sequestration order lapse on 9 March 2026?
[29] This judgment’s first port of call is the question whether Theron AJ’s provisional
sequestration order had lapsed. Messrs Malherbe and Griesel6 persisted, albeit faintly
with the submission that this was the case.
[30] Section 11(1) of the Insolvency Act, No. 24 of 1936 is a convenient starting point for this
topic, Section 11(1) expressly requires that if a provisional sequestration order is
granted, it must take the form of a rule nisi. (There is no similar requirement in the
relevant / remaining provisions of the Companies Act, No. 61 of 1973.)

6 I permitted Mr. Griesel an opportunity to be heard on all issues subject to a pending and
ultimate determination of his client’s intervention application.

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[31] The provisional sequestration order granted by Theron AJ accords with section 11(1)’s
rule nisi requirement, but it importantly goes further. Theron AJ ’s order is cast in the
following terms (italics added):
‘The Respondent and other party wishes to avoid such an order being made
final are called upon to advance reasons, if any, why the Court should not grant
a final order of sequestration of the said estate on the 9th day of March 2026 at
10:00 or so soon after this matter may be referred.’
[32] I agree with Investec’s submissions that the wording of the Theron AJ order is not
coincidental but instead recognises that (i) the Insolvency Motion Court sits for the
motion court week in question, and (ii) the return day hearing may be heard at any time
after 10:00 on 9 March 2026.
[33] I have been referred to a number of authorities dealing with the non-extension, or
lapsing, of rule nisi orders.7 I have considered each of these and, so too, a number of
others. Except for the decisions in (i) National Director of Public Prosecutions v
Mogotlane and Others ,8 and (ii) in Murray NO v Ramphele, 9 none of these authorities
assist or are particularly on point.

7 The referenced authorities inter-alia include: South African Municipal Workers Union obo
Khalamashe and Others v City of Ekurhuleni Metropolitan Municipality and Another
(J412/2021) [2023] ZALCJHB 120 (3 May 2023); Victor and Another v Wonderhoek Farms
(Pty) Ltd and Others (5049/2014) [2022] ZAFSHC 153 (10 June 2022; Ex parte S & U T V
Services (Pty) Ltd: In re S & U T V Services (Pty) Ltd (In Provisional Liquidation) 1990 (4) SA
88 (W); Fisher v Fisher 1965 (4) SA 644 (W); Karabo and Others v Kok and Others 1998 (4)
SA 1014 (LCC); Manton v Croucamp NO and Others 2001 (4) SA 374 (W); Murray NO v
Ramphele (25067/2020) (2021) ZAGPPHC 615 (27 September 2021); MV Snow Delta Serva
Ship Ltd v Discount Tonnage Ltd 2000 (4) SA 746 (SCA); Nedbank Limited v Pacinamix (Pty)

Ship Ltd v Discount Tonnage Ltd 2000 (4) SA 746 (SCA); Nedbank Limited v Pacinamix (Pty)
Ltd and Others (107019/20234 (2023) ZAGPJHC 1383 27 November 2023; Nzwalo
Investments (Pty) Ltd v Infoguardian (Pty) Ltd (6950/2020) [2021] ZAGPJHC 95 (23 July
2021); Rota Investments CC v Full Score Trading 131 CC and Others 16881/2022 ZAWCHC
97; Sab Lines (Pty) Ltd v Cape T ex Engineering Works (Pty) Ltd 1968 (2) SA 535 (C); South
African Legal Practice Council v Motholo and Another 37828-2022 ZAGPPHC 167; V.M. v
Z.M. and Another ZAECGHC 117; VLG Accounting CC and another v Koloni Consulting
Enterprise CC and others [2021] JOL 51789 (ECLD, East London); Williams v Landmark
Properties SA and Another 1998 (2) SA 582 (W).
8 National Director of Public Prosecutions v Mogotlane and Others 2025 JDR 3884 (GP).
9 (25067/2020) [2021] ZAGPPHC 615 (27 September 2021) which places reliance, in turn, on
the decisions in Davenport John William v Platfields Limited 2017 JDR 0334 (GJ). The Body
Corporate of Santa Fe v Bassonia Four 07 CC 2019 JDR 0516 [GJ].

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[34] The decision in National Director of Public Prosecutions v Mogotlane 10 pertains to a
provisional restraint order obtained in terms of section 26 of the Prevention of Organised
Crime Act, 121 of 1998 with an extended return day of Monday, 28 July 2025 but stood
down for argument on Thursday, 31 July 2025. The Court held, on a question of what it
labelled as ‘procedure’, that because the motion court roll was a continuous roll, and
because the matter was not postponed but remained enrolled, there was no need to
extend the provisional restraint order as it remained operative.
[35] In Murray NO v Ramphele it was similarly argued that the provisional sequestration
order had lapsed because, while the rule nisi order was returnable on 2 August 2021,
the matter was only called for argument at 10:00 on 4 August 2021.
[36] The following dicta in Murray NO v Ramphele, which resonates equally here and is also
approved of in Erasmus’ Superior Court Practice’s commentary on uniform rule 6(8) ,
and which neatly disposed of the ‘lapsing’ argument, reads (footnotes omitted):
‘[7] In accordance with the practice manual applicable to this division, all
matters are enrolled for the first day of the week in which the matter is to
be heard, the senior Judge allocating matters to Judges sitting in the
Opposed Court at least 10 days in advance, and each particular Judge
then preparing his/her own roll for the week in which the work is to be
distributed. The opposed motion roll is a continuous roll that endures
from 10:00 am on the Monday of the particular week until 16:00 pm on
the Friday of that week.
…
[8] As is often the case with opposed motions, a matter may commence on
one day and only conclude on the next day and, when that happens,
opposed motion Courts do not postpone the matter to the following day
but simply adjourn until the next day. So too, matters that are enrolled
for the Monday of any particular week, but are allocated to any other

for the Monday of any particular week, but are allocated to any other
day of that week, do not get postponed to that day, but simply stand
down until the allocated date and time in that week. So too, in casu, the
matter was on my roll and before me on the 2
nd of August 2021 but, in
accordance with the published roll, then stood down until Wednesday at

10 Supra para 4.

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10:00 am. In those circumstances I neither discharged the rule on
Monday at 10:00 am, nor did the period of the validity of the rule expire.
That is because the matter was not only properly enrolled, it was before
me on the 2nd of August 2021 but then stood down for argument.
…
[13] … the provisional order was before me from the start of my roll on the
2nd of August 2021 and remained so until argument was disposed of on
Wednesday the 4th of August 2021, all of this as part of ‘one continuous
judicial action.
…
[17] … a s at the time of hearing argument on the matter, being a mere two
days later as part of a continuous opposed motion roll, the matter in my
view remained res integra. To the extent that it is necessary to
pertinently revive the rule in those circumstances in order to render this
judgement effective, I exercise that discretion. I take into account that
there was no fault on the part of the applicant who had been directed to
only appear at 10:00 am on Wednesday the 4
th of August 2021. … ’
[37] The aforesaid dicta and reasoning applies equally in these proceedings, except to say
that what was being dealt with there was the (normal) opposed motion court.
Consequently, I therefore disagree with Messrs Malherbe’s and Griesel’s submissions.
The provisional sequestration order has not lapsed.
[38] I nevertheless wish to add the following additional considerations that separately
confirm the non-lapsing of the provisional sequestration order:
[38.1] While the decision in Murray NO v Ramphele pre-dates the establishing of this
Court, Rules 11 and 12 of D irectives for the Insolvency Motion Court
nevertheless contemplates the continuous nature of the Insolvency Motion Court
roll by directing that:
‘11. A ll matters shall , for formal purposes , be set down on the Monday
of the [IMC] week.
12. The presiding judge shall … notify the parties of the date and time
the matters will be heard [during that IMC week] … .’

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[38.2] Additionally, it is not disputed that (i) this application (i.e. the return day hearing)
was duly set down and enrolled for hearing on 9 March 2026 in the Insolvency
Motion Court (ii) its set down and enrolment took place in accordance with the 9
March 2026 rule nisi return date in the Theron AJ order, (iii) that the application
and its return day hearing was allocated by the Motion Court Roll Senior Judge
to me, sitting in one of the two Insolvency Motion Courts that week, (iv) I had, in
turn, allocated the matter on 6 March 2026for hearing on my opposed
Insolvency Motion Courts roll to 10 March 2026, and (v) the hearing and
argument in the application commenced, as allocated, on 10 March 2026.
[38.3] At no time subsequent to the allocation of this matter for hearing on 10 March
2026 was the rule nisi order not the subject matter of judicial supervision and
control.
[38.4] The provisional sequestration order was, in any event, called late on Monday, 9
March 2026 and stood down to its 10 March 2026 allocated date.11
[38.5] Mr. Maree suffers no prejudice if the provisional sequestration order is to be
revived (which accompanying discretion I exercise in favour of Investec, but only
as a matter of abundant caution and only if necessary).
Zatopax’s last minute intervention application
[39] I now deal with the Zatopax’s intervention application. Mr. Griesel filed heads of
argument in support of the application. I have considered them. They also traverse the
question of whether the provisional sequestration order has lapsed.
[40] Zatopax asserts in its founding affidavit that it wishes to intervene in the sequestration
application with a view to apply for the rescission of the provisional sequestration order,

11 See Ferreira v Magistrate, Mr Koopman NO. 2020 JDR 1909 (ECG) para 39.

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and, in the event of the order not been rescinded, to oppose the application for the final
sequestration of Mr. Maree’s estate. Mr. Griesel also asked for an extension of the
return day so that Zatopax can consider the various documents filed of record so as to
allow it to assess, in essence, its position.
[41] Zatopax claims that it is a creditor of Mr. Maree. It claims to be owed some R3.8 million.
Other than bland conclusionary statements by its deponent, Mr. Muller, Zatopax
ultimately relies on a ‘letter’ by its accountants as evidence of this debt. A copy of this
letter is annexed to Zatopax’s founding affidavit.
[42] It is well -established that the v iews of creditors should be considered in sequestration
and liquidation proceedings, 12 albeit a Court is not bound by their views.13 It is equally
well-established that a Court, at common law, has a discretion to permit a creditor to
intervene in these types of proceedings . This is understandably so because every
creditor has, at least a prima facie interest, in the fate of the application. That said, it is
not our law that a creditor, merely as of right and without more, is automatically entitled
to intervene.
[43] Zatopax’s intervention application falls at its first hurdle, namely Zatopax’s claimed
status as a creditor of Mr. Maree. On this score, there are certain basic, fundamental
and imbricated principles pertaining to application proceedings. These, among many
others, include: (i) the affidavits filed in application proceedings assume the function of
both the pleadings and the evidence in action proceedings; 14 (ii) the deponent to an
affidavit must have the requisite personal knowledge of the facts deposed to in the
affidavit (such that an affidavit, strictly speaking, must only contain matters of fact that

12 Levay and Another v Van den Heever NO and Others, In re: Van den Heever NO and Others
v Waterfall Trout Properties (Pty) Ltd 2018 (4) SA 473 (GJ) para 28.

v Waterfall Trout Properties (Pty) Ltd 2018 (4) SA 473 (GJ) para 28.
13 SAA Distributors (Pty)Ltd v Sport en Spel (Edms) Bpk 1973 (3) SA 731 (C) at 373 and
Porterstraat 69 Eiendomme v PA Venter Worcester (Pty) Ltd 2000 (4) SA 598 (C).
14 See inter-alia Swissborough Diamond Mines v Government of the RSA 1999 (2) SA 279 (W)
at 323 H –I, Hart v Pinetown Drive- in Cinema (Pty) Ltd 1972 (1) SA 464 (D) 469, Hano
Trading v J R 209 Investments (Pty) Ltd 2013 (1) SA 161 (SCA).

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fall within the personal knowledge of the deponent – where this is not the case, a
confirmatory affidavit by the relevant individual holding such personal knowledge is to
be provided);15 and (iii) the rules of evidence apply, namely deponents can only depose
to admissible evidence.16
[44] Zatopax does not provide any particularity regarding the terms of this alleged
indebtedness, nor its calculation, nor any admissible documentary evidence of its
existence. There is also no contemptuous documentary proof of any amounts being
advanced to, or paid on behalf of, Mr. Maree.
[45] Instead, the only ‘evidence’ that Zatopax relies on in support of its claim that it is a
creditor of Mr. Maree is a letter annexed to its founding affidavit. It is claimed to be a
letter furnished by Zatopax ’s accountants. The letter is unsatisfactory in several
respects. It also has no evidential value. The letter has no letterhead. It does not name
nor identify Zatopax ’s accountants. Its assumed author and supposed signatory is
Charney Smit. However, Ms. Smit ’s position, relationship or authority with Zatopax’s
accountants is undisclosed. The letter also does not appear to be the product of Ms.
Smit’s personal knowledge, given the letter ’s repeated us e of pronoun plurals such as
‘we”, ‘our’, and “us”. In any event, Ms. Smit has not provided a confirmatory affidavit.
Despite the letter’s obvious third-person hearsay character, Zatopax does not attempt to
wrestle with the requirements of the Law of Evidence Amendment Act, No. 45 of 1988 in
order to overcome its obvious inadmissibility.
[46] Zatopax’s reliance on Ms. Smit’s letter renders the following statements in Sheffryk v
MEC for Police, Roads and Transport: Free State Province17especially apt:

15 Van Blerk, Precedents for Applications in Civil Proceedings, Juta, 2018, page 15, para 3.24.
16 See Pountas’ Trustee v Lahanas 1924 WLD 67 70; Dennis v Garment Workers’ Union Cape

16 See Pountas’ Trustee v Lahanas 1924 WLD 67 70; Dennis v Garment Workers’ Union Cape
Peninsula 1955 (3) SA 232 (C), and Dennis v Garment Workers' Union, Cape Peninsula 1955
(3) SA 232 (C).
17 2022 JDR 1629 (FB) para 1.

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‘‘Two wrongs do not make a right.’ A document is a document and hearsay
evidence is hearsay evidence; opinion evidence is opinion evidence. The Law of
Evidence on the admissibility of the evidence prevails. It is said that a document
only proves what is written in it, but not the truth of what is written. Before the
contents of a document may be presented as the truth, the admissibility
requirement must be fulfilled. The contents must not be irrelevant, the document
must not contain an inadmissible confession, etc. Because a document usually
reflects somebody’s knowledge and thoughts, particular care must be taken to
ensure that it does not infringe the hearsay rule and perhaps the opinion rule.’
[47] Separately but equally, dispositive of the question of Zatopax’s status as a creditor of
Mr. Maree is Mr. Maree ’s own position on this score. Mr. Maree does not regard
Zatopax as a creditor. Mr. Maree does not mention any Zatopax debts when listing his
creditors and liabilities in his answering affidavit. Mr. Maree subsequently alleges that
Investec is his only creditor in his 8 March 2026 ‘opposing’ affidavit. The probabilities
are that, if the Zatopax debt (which is apparently significant ) was genuine, Mr. Maree
would have mentioned it; at least in support of his claim that the sequestration of his
estate will not be to the advantage of his creditors. Additionally, Zatopax hoists itself up
with its own petard. 18 Zatopax’s founding affidavit confirms and relies on the liabilities
listed by Mr. Maree in his answering affidavit, despite Mr. Maree not mentioning a
Zatopax debt. Zatopax does not qualify this confirmation by stating that the Zatopax
debt must be added to this list.
[48] As Zatopax fails to establish, even on a prima facie basis, its locus standi as a creditor
of Mr. Maree ’ estate, it has no direct or substantial interest, or any interest for that
matter, in the fate of the sequestration of Mr. Maree’s estate. Otherwise stated, it has no

matter, in the fate of the sequestration of Mr. Maree’s estate. Otherwise stated, it has no
legal cognisable right which would be adversely affected by the grant of a sequestration

18 "Hoist with ones’ own petard" is a phrase in William Shakespeare play Hamlet Act 3, Scene
4. Literally, the phrase means a bomb- maker is blown off the ground (hoist – to lift and
remove) by his own bomb ( petard – a small bomb used to blow in doors and breach walls).
The phrase proverbially implies an ironic reversal in which one is taken down by one's own
scheme.

-16-



order.19 Consequently, Zatopax is not entitled to any of the relief it seeks in its notice of
motion in its intervention application.
[49] Over and above its lack of locus standi, Zatopax’s intervention application is burdened
with several other difficulties. These, without being exhaustive, include (i) Zatopax’s
deponent’s failure to set a basis for his personal knowledge of Mr. Maree’s
indebtedness and liability to Investec, (ii) so too his lack of personal knowledge as to the
merits of the Maree / Investec action; (ii i) the absence of any suitable particularity
relevant to the proposed rescission application, or its basis ; (i v) Zatopax’s
unparticularised and circular claim that ‘an order sequestrating the estate of [Mr. Maree]
will nullify Zato pax’s claim’ against Mr. Maree; (v) Zatopax fails to add anything new
and of admissible value to the sequestration application’s fate and determination, and
(vi) the absence of any explanation for the inordinate delay in Zatopax’s bringing of its
application; despite it, by all accounts, having had knowledge for some time of the
paginated papers, the provisional sequestration order and its return day.
[50] When asked about the absence of an explanation for the delay, Mr. Griesel submitted
that the order of Theron AJ calls upon interested parties to advance reasons why a final
sequestration order should not be granted ‘on the return day’; and this is what his client
seeks to do.
[51] While there is some initial merit in Mr. Griesel’s submission, it become porous when
measured against (i) the hearing and argument intended to take place on the provisional
sequestration order ’s return day, (ii) the fact that the same attorneys represented Mr.
Maree and Zatopax’s deponent, Mr. Muller, until shortly before the bringing of the
intervention application (iii) Mr. Muller is personally the third respondent in the Santam /
Maree application, (i v) Zatopax’s apparent long-standing knowledge of the fact of the

Maree application, (i v) Zatopax’s apparent long-standing knowledge of the fact of the
provisional sequestration order and its return day, (v) the panoply of flaws in the

19 South African Riding for the Disabled Association v Regional Land Claims Commissioner and
Others 2017 (5) SA 1 (CC) para 10 to 12.

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intervention application itself, and (vi) the last minute ‘postponement’ relief sought in
Zatopax’s notice of motion.
[52] In summary, any neutral reader of Zatopax’s intervention application is left with the
odious sense that the true purpose of the intervention application is twofold. First, delay
and, second, to shore up Mr. Maree’s opposition to the sequestration application.
Zatopax’s intervention application is therefore pursued with an ulterior purpose and is
not brought in good faith. 20 I agree with Mr. Sawma SC’s description of the intervention
application as ‘gamesmanship’. Litigation is not a game; an issue I return to at the end
of this judgment.
[53] In the result, Zatopax must fail in its intervention application. There is therefore no need
to consider Zatopax’s request for an extension of the return day. There is also no
reason why costs should not follow the result, particularly because no true basis existed
for the intervention, and it was unreasonable for Zatopax to seek to do so.21
Mr. Maree’s last minute ‘stay’ application
[54] Like Zatopax’s last minute intervention application, Mr. Maree also made application at
the last minute ( on 9 March 2026 at 2:24 pm) for an order ‘ staying’ the provisional
sequestration order pending the final determination of the proceedings in this court
under case number 2024-124964. Mr. Maree’s notice of motion seeking this relief is
accompanied by an ‘opposing affidavit’ deposed to by Mr. Maree , similarly on 9 March
2026.
[55] Ignoring for a moment the question of the competency of the relief that Mr. Maree seeks
under section 12(2) of the Insolvency Act, Mr. Maree’s application and his opposing
affidavit raised various (other) immediate concerns. These include:

20 See Levay supra and cf R v Meer 1957 (3) SA at 618F/G - 618B/C.
21 FirstRand Bank Ltd Wallace Pienaar Property CC (Absa Bank intervening) 2002 (2) SA 758
(W).

-18-



[55.1] the disconnect between ( a) the relief sought in Mr. Maree’s notice of motion,
(b) the ‘opposing affidavit’ label attached to the accompanying affidavit, and ( c)
the actual content of the opposing affidavit, which affidavit moves, in material
and perceptible respects , beyond motivating the ‘stay’ relief sought in its
accompanying notice of motion;
[55.2] the opposing affidavit’s needless inclusion and regurgitation of lengthy legal
argument;
[55.3] the not fully accurate claim that the ‘factual and legal landscape has changed
materially’ since Theron AJ’s granting of a provisional sequestration order – the
only change of any moment is that S antam has now proceeded against Mr.
Maree, albeit this was contemplated in the proceedings before Theron AJ; and
[55.4] Mr. Maree fails to explain the reasons for the last minute filing of his application
and opposing affidavit.
[56] Accordingly, at the outset of the hearing, and in response to my request as to what relief
Mr. Maree actually or specifically sought in respect of his application, Mr. Griesel stated,
as mentioned above, that his client requested a ‘one-month extension’ of the provisional
sequestration order.
[57] Before dealing with the competency of the relief sought by Mr. Maree, I first traverse the
litigation traversed in the opposing affidavit, and the store Mr. Maree wishes to place
thereon. Investec, as applicant in the referenced proceedings under case number 2024-
124964, pursues judgment against Santam under a R185 million performance
guarantee issued by Sant am in favour of Investec for the debts owed by Viturwell to
Investec. Mr. Maree’s opposing affidavit also references suretyship and indemnity
proceedings in amount of some R178 million brought by Santam against Mr. Maree and

-19-



others under case number 2025-052338. Mr. Maree also raises the fact of his existing
pending action against Investec under case no. 2024-125997.
[58] In summary, Mr. Maree contends in his opposing affidavit that, because of this pending
litigation, the final order for the sequestration of his estate should be held over ‘to
prevent a grave injustice’ to him. This alleged ‘justice’ would result inter-alia because
Mr. Maree asserts that (i) the Sant am guarantee furnished in favour of Investec
constitutes adequate security for the amount claimed by Investec from Mr. Maree, (ii)
Santam is pursuing Mr. Maree in respect of his suretyship obligations before Santam
has ‘paid Investec a single rand [sic]’, and (iii) until the Investec / Santam litigation is ‘ …
resolved, no court can know whether, Santam, bears primary liability and pays Investec,
in which event Investec’s claim against [Mr. Maree] is dramatically reduced and the
entire foundation of the sequestration shifts.’
[59] Moreover, Mr. Maree asserts that because none of this litigation has been resolved, he
should, essentially, be afforded an indefinite stay of the provisional sequestration order
in terms of section 12(2) of the Insolvency Act. But herein lies Mr. Maree’s difficulty.
[60] On the question of the competency of the relief sought, Mr. Maree faces at least three
hurdles and challenges.
[61] The first challenge is in the formulation and wording of the relief sought by the applicant
in paragraph 1 of his notice of motion. Paragraph 1 asks for an order in the following
terms:
‘That the provisional sequestration order granted by Acting Justice Theron
on 1 October 2025 (‘the Provisional Order’) be and is hereby stayed pending
the final determination of case 2024 -124964 in the Gauteng Local Division,
Johannesburg.’

-20-



[62] Mr. Maree states in his opposing affidavit, as indicated, that the basis for this stay relief
is section 12( 2) of the Insolvency Act. It is appropriate at this juncture to pause to
restate the terms of sections 12(1) and 12(2), which read (my italics for emphasis):
‘12(1) If at the hearing pursuant to the aforesaid rule nisi the Court is
satisfied that :
(a) the petitioning creditor has established against the debtor a
claim such as is mentioned in sub -section (1) of section nine;
and
(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 his estate is sequestrated,
it may sequestrate the estate of the debtor.
(2) If at such hearing the Court is not so satisfied, it shall dismiss the
petition for the sequestration of the estate of the debtor and set
aside the order of provisional sequestration or require further proof
of the matters set forth in the petition and postpone the hearing for
any reasonable period but not sine die.’
[63] A sequestration application is indubitably a ‘status’ matter. This is so because a
sequestration order (be it provisional or final) fundamentally changes a respondent’s
legal capacity and standing. A sequestration order alters and impinges not only upon
the respondent’s estate but also his or her capacity to contract, trade, deal with assets,
manage their own affairs, litigate, engage with creditors / debtors, hold certain
professional or public offices, etc.22
[64] It is thus understandable why s ection 12(2) contemplates only a reasonable
postponement of the rule nisi return day hearing o f the provisional sequestration order ,
not a ‘staying’ of the provisional sequestration order itself.
[65] For the same reasons , I do not believe that that any court can grant an order staying a
provisional sequestration order – be it in terms of section 12(2) or otherwise. This is

provisional sequestration order – be it in terms of section 12(2) or otherwise. This is

22 See inter-alia Botes and Others v Tariomix (Pty) Ltd t/a Forever Diamonds and Gold and
Others 2024 (6) SA 203 (NWM) paras 48 to 52 and Fischer v Wessel & Co (Pty) Ltd 1943
TPD 71.

-21-



because the effect of such an order would be tantamount to staying the operation of the
provisional sequestration order.
[66] While the (South African) Dictionary of Legal Words and Phrases 23 does not include a
definition for ‘stay’, Black’s Law Dictionary24 defines ‘stay’ in the following terms:
‘stay, n. (16c) 1. The postponement or halting of a proceeding, judgment, or
the like. 2. An order to suspend all or part of a judicial pr oceeding or a
judgment resulting from that proceeding. - Also termed stay of execution;
suspension of judgment. - stay, vb. - stayable, adj.’
[67] This definition accords with my understanding of what is intended by an order staying a
proceeding, or the operation of an order.25 What Mr. Maree asks for is an indefinite stay
of the provisional sequestration order. What Mr. Maree does not ask for is an extension
of the rule nisi.
[68] For reasons traversed elsewhere in this judgment, sequestration proceedings are not
rank and file civil proceedings. As such, I am of the view that considerations of the
power of a Court to ‘stay’ sequestration proceedings under the rubric of section 173 of
the Constitution do not arise.
26
[69] Even if I am wrong in the aforesaid regard, the nature and circumstances of this case,
and the interests of justice, do not favour the grant of an order ‘ staying’ the provisional
sequestration order. This is because such an order would place Mr. Maree, his status,
and his estate in an abhorrent sequestration twilight-zone . Moreover, such an order
would be pernicious for Mr. Maree’s creditors. Mr. Maree, on the face of it, cannot pay
his debts. His creditors, because of the extant concursus creditorum , are however

23 Claassen and Claassen, Lexis Nexis, 2nd Edition.
24 Black’s Law Dictionary (Rev Ed) by Bryan A. Garner , Thomson Reuters Legal , 2019, 11 th
Edition, page 1709.
25 See also J.P.R.D v L.S.D (20916/2018) [2023] ZAWCHC 296 (23 November 2023).

25 See also J.P.R.D v L.S.D (20916/2018) [2023] ZAWCHC 296 (23 November 2023).
26 Mokone v Tassos Properties 2017 (5) SA 456 (CC) paras 67-8.

-22-



barred indefinitely from exercising their rights against Mr. Maree. All the while interest
will continue to accumulate on debts that Mr. Maree already cannot pay.
[70] It, moreover, cannot be that an order of Court could competently result in Mr. Maree’s
estate not being subject to the operation and consequences of a provisional
sequestration order , notwithstanding the fact and continued existence of such order. I
find support for this impossibility in inter-alia sections 20(1)(a) and 150(3) of the
Insolvency Act.
[71] Section 20(1)(a) provides that a sequestrated estate vests in the Master and thereafter
the appointed trustee. 27 Section 150(3) provides that the lodging of an appeal against a
final sequestration order does not suspend the operation of the provisions of the
Insolvency Act (i.e. the sequestration order continues to operate notwithstanding
pending appeal proceedings , p rovided that no property belonging to the sequestrated
estate can be realised without the written consent of the insolvent). Visser v Coetzer;
GTR Investments and Others v Coetzer, 28 where it was held that the insolvent remained
immediately divested of his assets despite the noting of an appeal, confirms this status
quo. I also mention that litigating parties, even by agreement amongst themselves ,
cannot extend the return day of a provisional sequestration order without out a Court’s
imprimatur.29
[72] The second challenge is a jurisdictional hurdle arising within section 12(2) of the
Insolvency Act itself. The reference in section 12(2) to the Court not being ‘so satisfied’
is tied to that required in terms of sections 12(1)(a) to (c). It is this judicial dissatisfaction
which serves as a jurisdictional requirement permitting a Court to act in terms of section
12(2). Section 12(2) only permits a non-sine die postponement for purposes of the
furnishing of ‘further proof of the matter set forth in the petition’ and, in this sense, being

27 The vesting takes place automatically and operates as a transfer of dominium to the trustees.
28 1982 (4) SA 805 (W) 809D-H.
29 Maudsley v Dunton 1905 TS 557.

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further proof in respect of section 12(1)’s requirements as canvassed in the
application.30
[73] The third challenge for Mr. Maree also resides within section 12(2) . The sub-section
expressly precludes a court from granting an order postponing a provisional
sequestration order sine die. 31 This statutory bar would also include, by necessary
inference, any sine die staying of the provisional sequestration order (i.e. postponing or
staying to an indeterminate date pending the final determination of other substantial
proceedings).
[74] Entrenching the aforesaid, while section 11(1) of the Insolvency Act requires a
provisional sequestration order to be accompanied by a rule nisi , section 12(2) of the
Insolvency Act expressly precludes a sine die postponement of a provisional
sequestration order.
[75] No doubt appreciating the competency difficulties faced by Mr. Maree vis-à-vis the
section 12(2) relief he seeks , Mr. Malherbe’s on-the-hoof altering of the relief sought to
a month long extension of the rule nisi does not assist Mr. Maree. This is because there
is no such formal application before me, and also nothing that suggests that any of the
pending litigation will be concluded within a month.
[76] In fact, a reading of Mr. Maree’s opposing affidavit indubitably points in the opposite
direction; a position buttressed by the following considerations: (i) Santam has raised
‘substantive defences ’ (Mr. Maree’s words) in the Investec / Sant am proceedings -
Santam contends, for example, that the S antam Guarantee is void, and (ii) Mr. Maree ,
in turn, has sought to withdraw from and disputes his suretyship obligations and liability

30 See Enter-Centre Enterprises (Pty) Ltd v Bongneri 1972 (1) SA 117 (C) and the other cases
collected in Bertelsmann et al, Mars, The Law of Insolvency in South Africa, Juta & Co., 2008,
9th Edition, 135, footnote 319 and LexisNexis, Insolvency Law, Looseleaf Binder, Issue 63, 2-
59.
31 Mostert v Jagger & Co (Pty) Ltd 1938 CPD 518 at 523.

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to Santam within the context of the Santam / Maree proceedings . As Theron AJ found,
Mr. Maree cannot simultaneously contend that he has a contingent liability to Santam,
and at the same time dispute this liability. Nevertheless, given the vagaries of litigation,
the nature of the disputes and quantum in issue in the Investec / Santam proceedings
and Santam / Maree proceedings , the prospect of subsequent lengthy appeal
proceedings should not be ignored. Simply stated, experience dictates that there is no
reasonable prospect that any of the aforesaid litigation will be finally determined in the
reasonably foreseeable future, let alone in the next couple of years.
[77] Moreover, a sequestration application, like a liquidation application, strikes at a
respondent’s existing inability to pay his or her current, day-to-day demands and debts,32
In Rosenbach & Co (Pty) Ltd v Singh's Bazaars (Pty) Ltd, Caney J held (while dealing
with this question in a liquidation application but nevertheless equally applicable to a
sequestration proceedings - my italics):
‘… the proper approach in deciding the question whether a company should be
wound up … appears to me. to be that, if it is established that a company is unable to
pay its debts, in a sense of being unable to meet current demands upon it, its day-to-
day liabilities in the ordinary course of business, it is in a state of commercial
insolvency.’
[78] For its part, the Supreme Court of Appeal similarly held in Murray and Others NNO v
African Global Holdings (Pty) Ltd and Others (again my italics):33
‘[31] The argument about timing misconceived the nature of commercial
insolvency. It is not something to be measured at a single point in time by
asking whether all debts that are due up to that day have been or are going
to be paid. The test is whether the company ‘is able to meet its current
liabilities, including contingent and prospective liabilities as they come due’ …

liabilities, including contingent and prospective liabilities as they come due’ …
Determining commercial insolvency requires an examination of the financial
position of the company at present and in the immediate future to determine

32 Rosenbach & Co (Pty) Ltd v Singh's Bazaars (Pty) Ltd 1962 (4) SA 593 (D) 597.
33 2020 (2) SA 93 (SCA) para 31.

-25-



whether it will be able in the ordinary course to pay its debts, existing as well
as contingent and prospective, and continue trading.’
[79] There is no substantial, if any, difference between a company’s inability to pay its debts
(as contemplated under the Companies Act, 1973) and a respondent’s insolvency (as
contemplated under sections 10(b) and 12(1)(b) of the Insolvency Act). They both
essentially turn on an inability to pay debts . As Innes CJ held in De Waard v Andrew
and Thienaus Ltd: 34
‘… 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.’
[80] As such , consideration of the respondent’s insolvency requires a contemporaneous
judicial evaluation of Mr. Maree’s ability to pay his present or current debts and so too
those arising in the immediate future. This contemporaneous judicial evaluation
precludes crystal-ball speculation that, at some unforeseen date in the future, Mr.
Maree’s financial position may possibly change.
[81] As matters presently stand, (i) Viturwell's undisputed and substantial indebtedness to
Investec remains undischarged; be it by Viturwell, Santam, Mr. Maree, or anyone else,
(ii) Mr. Maree confirms in his action against Investec that he will not be able to satisfy
the debt as per the terms of the Maree Guarantee, and (iii) Mr. Maree accepts that he is
insolvent; so much so that he claims there will be no advantage to creditors if his estate
were to be sequestrated.
[82] In any event, I am unpersuaded that a favourable outcome for Mr. Maree in the Investec
/ Santam litigation will move Mr. Maree from an insolvent to a solvent position, let alone

34 1907 TS - TH 727 at 733.

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eliminate Investec’s status as Mr. Maree’s creditor of having regard to the differing
applicable interest rate considerations.
[83] All things considered, in the exercise of my judicial discretion and even if I am wrong in
all of the aforesaid regards, it is not in the interest of justice, nor that of Mr. Maree ’s
concursus creditorum, to accede to Mr. Maree’s request for relief under section 12(2) of
the Insolvency Act or otherwise, nor for a n extension of the provisional sequestration
order. Investec has a right to a fair and expeditious determination of its application – a
right bound up in section 34 of the Constitution.
[84] As an add-on, whilst not dealing with the stay application specifically, Mr. Maree ’s
opposing affidavit claims that the ‘investigations’ referenced in the judgment of Theron
AJ can take place within the bailiwick of the Viturwell liquidation wherein there is a
pending enquiry sanctioned and convened under the auspices of section 417 of the
Companies Act, No. 61 of 1973. Accordingly, Mr. Maree claims that there is no need for
Mr. Maree’s estate to be sequestrated to proceed with these investigations.
[85] Mr. Maree however misconstrues the purpose of the investigations referenced by
Theron AJ and promoted by Investec within the context of this sequestration application.
Investec motivates the need for such investigations under the rubric of section
12(1)(c)of the Insolvency Act (i.e. the advantage to creditors consideration).
[86] The purpose and context of a section 417 enquiry is fundamentally different to that of an
enquiry pursued within the ambit of section 12(1)(c)of the Insolvency Act. A section 417
enquiry allows liquidators and creditors to summon directors, accountants, and officers
to testify under oath to inter -alia reconstruct the financial history of the company in
liquidation, to uncover any hidden assets of such company, to identify corporate

liquidation, to uncover any hidden assets of such company, to identify corporate
misconduct etc. For its part, an investigation foreshadowed in terms of section 12(1)(c)
is raised within the context of the consideration that the machinery of the Insolvency Act
may unearth or recover assets which will yield a pecuniary benefit for creditors . In any

-27-



event, Mr. Maree by all accounts refuses to participate in the Viturwell section 417
enquiry.
[87] Additionally, Mr. Maree ’s opposing affidavit asserts that Investec has an ‘ improper
motive’ in the sequestration application, namely the ‘destruction’ or ‘elimination’ (Mr.
Maree’s words) of Mr. Maree’s action against Investec . For the reasons set out
elsewhere in this judgment, there is nothing that precludes me from determining the
legal questions / disputes that stand at the heart of Maree / Investec action. Accordingly,
there can be no ‘improper motive’.
[88] Accompanying the claimed ‘improper motive’ is a disquieting and speculative claim that
a trustee would (i) act only in the interests of Investec, and (ii) not challenge Investec’s
claim again Mr. Maree. While it is possibly an open question whether trustees and
liquidators are officers of court, 35 it is beyond doubt that they are obliged to act
independently, honestly , transparently, reasonably , and fairly .36 The insinuation is not
based in fact, nor supported by any no evidence. This claim is similarly rejected.
[89] In the result, there is no merit in Mr. Maree’s stay application, and it is dismissed.
The ‘further affidavit’ status, if any, of Mr. Maree’s opposing affidavit
[90] Mr. Maree did not deliver a supplementary answering affidavit subsequent to the
granting of the provisional sequestration order.
[91] It was however suggested in the argument before me that Mr. Maree’s opposing
affidavit is also to be regarded or treated as a supplementary or further affidavit. The

35 Joubert & J Calitz , T o be or not to be? The role of private enquiries in the South African
insolvency law , Potchefstroom Electronic Law Journal , Vol. 17, No. 3 ,
Potchefstroom Sep. 2014. For the position in the United Kingdom see Re Oasis
Merchandising Ltd [1998] Ch 170.
36 See for example Standard Bank of South Africa v The Master of the High Court and Others

36 See for example Standard Bank of South Africa v The Master of the High Court and Others
2010 (4) SA 405 (SCA) para 1, Hudson and Others NNO v Wilkins NO and Others 2003 (6)
SA 234 (T) para 13 and Motala v Master, North Gauteng High Court 2019 (6) SA 68 (SCA)
paras 83 and 84.

-28-



document is also uploaded onto CaseLines under the nomenclature of a ‘further
affidavit’. While this may have been loose language or loose labelling, if Mr. Maree
intends to introduce the opposing affidavit as a self-standing supplementary or further
affidavit, he requires the Court’s permission to do so.37
[92] I am mindful that (i) a sequestration application impacts on a respondent’s status , and
(ii) this consequence may warrant a less rigid approach when it comes to the filing of
further affidavits.38 That said, Mr. Maree does not seek such relief before me (formally
or form the Bar) and, even if he did, I am not satisfied, in the exercise of my direction ,
that a proper case exists for permitting the filing of his opposing affidavit as a further
affidavit. For example, there is no explanation for its late filing. 39 Mr. Maree’s opposing
affidavit also suffers, in various aspects, from the same ulterior motivates afflictions that
contaminate Zatopax’s intervention application. As such, no further regard is to be had
to Mr. Maree’s opposing affidavit.
Mr. Maree’s central ground of opposition to the sequestration application
[93] Mr. Maree’s opposition to the sequestration application is set out in his answering
affidavit dated 21 August 2025. (I have already dealt with his accompanying counter-
application for a postponement of the 22 August 2025 hearing.)
[94] There is a large amount of endeavour and ink spent in Mr. Maree’s answering affidavit
explaining, and complaining about, the procedure then adopted by Theron AJ . These
complaints include (i) Mr. Maree’s legal team and hi m not being ‘afforded a suitable

37 See uniform rule 6(5)(e) and Sealed Africa (Pty) Ltd v Kelly and Another 2006 (3) SA 65 (W)
para 4.
38 See Body Corporate of Ceres v Ntukwana (2023-070163) [2026] ZAGPPHC 499 (5 May
2026) paras 5 to 7.
39 See Bangtoo Bros and Others v National Transport Commission and Others 1973 (4) SA 667

39 See Bangtoo Bros and Others v National Transport Commission and Others 1973 (4) SA 667
(N), as quoted in Body Corporate of Ceres v Ntukwana supra, which held that a litigant who
seeks to serve an additional affidavit is under a duty to provide an explanation that negates
mala fides or culpable remissness as the cause of the facts and/or information not being put
before the court at an earlier stage.

-29-



opportunity to fully deal with all the relevant matters that a full hearing on the opposed
role’, and (ii) his legal representatives have not been afforded ‘ a full opportunity to
prepare heads of argument to fully address’ the matter.40
[95] Despite his complaints , Mr. Maree ’s answering affidavit, annexures and counter -
application run to some 436 pages. Moreover, since Theron AJ’s gran ting of the
provisional sequestration order on 1 October 2025, Mr. Maree has had more than ample
opportunity to remedy his previously claimed lack of opportunities. He has not done so.
[96] Be that as it may, paragraph 10 of Mr. Maree’s answering affidavit articulates the central
focus or high watermark of Mr. Maree’s opposition to the sequestration application. It
does so in the following terms:
‘…, I oppose the application on the basis that the Applicant is not a lawful creditor
and does not have the requisite locus standi in iudicio to bring the application
concerned. The grounds on which I dispute the existence of the debt on which the
Applicant relies are that the Credit Guarantee is not a lawful and enforceable
contract and that all or part of my rights and obligations under that agreement
should be set aside.’
[97]
In an endeavour to bolster and expand the ambit of his challenge to the applicant’s
locus standi, Mr. Maree references his pending action against Investec in support of a
lis alibi pendens defence. Mr. Maree asserts in paragraph 13 of his answering affidavit:
‘I am further advised that the dispute concerned does not serve before this
honourable Court and that the honourable Court cannot assume jurisdiction in
regard thereto. In this regard, I also rely on the principle of lis alibi pendens . Full
legal argument in this regard will be addressed to the honourable Court at the
hearing of the matter.’

40 I also mention that the focus of heads of argument for Mr. Maree traverse the background to

the application, the Investec / Santam application, and authorities relevant to a
postponement.

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[98] In summary, Mr. Maree argues that the Maree Guarantee is a self-contained contract
which creates a principal obligation by Investec. On this platform, he argues that
because the Maree Guarantee is not an accessory obligation, the exclusion contained in
section 4(2)(c) of the NCA 41 does not apply to the Maree Guarantee, but that Part D of
the NCA do es apply (i.e. dealing with ‘Over-indebtedness and reckless credit ’). Mr.
Maree then states that his opposition resides within the NCA’s section 81 (‘Prevention of
reckless credit’), and on Investec’s alleged non-compliance with the relevant statutory
and regulation requirements. Mr. Maree concludes this opposition on the basis that the
Maree Guarantee is consequently unlawful and invalid, with the accompanying
extinction of his alleged indebtedness to Investec.
[99] Investec denies that Mr. Maree has any claim to asylum under section 81. Investec
argues that the NCA does not apply to the Maree Guarantee. This, in turn, is because:
(i) Viturwell is a ‘juristic person’ as contemplated under the NCA, (ii) the Viturwell loan
agreement is a ‘large agreement’ as contemplated under the NCA, (iii) the Maree
Guarantee is in respect of Viturwell loan agreement.
[100] Distilling the parties’ aforesaid competing claims positions, t he ‘legal questions /
disputes’ that fall to be determined can be framed in following succinct terms: Does the
Maree Guarantee stand be set aside, alternatively is Mr. Maree’s liability suspended
because the Maree Guarantee constitutes reckless credit of the type contemplated in
the NCA? (There are other ancillary legal questions / disputes but they do not feature as
prominently as the aforesaid.)
[101] Additionally, as already indicated, Mr. Maree argues this Court in these sequestration
proceeding should not determine the merits of t he legal questions / disputes because

41 The section reads: ‘this Act applies to a credit guarantee only to the extent that this Act

applies to a credit facility or credit transaction in respect of which the credit guarantee is
granted;’.

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they are already the subject matter of his pending action against Investec (invoking the
lis alibi pendens principle).
This Court’s ability to determine the legal questions / disputes
[102] During argument, both Messrs Malherbe and Griesel42 correctly conceded that I was
suitably placed to determine the legal questions and disputes. Their concession is in line
with established precedent that the mere existence of a legal dispute, without more,
does not constitute a bona fide dispute of the kind contemplated by the Badenhorst rule.
[103] That said, the application of the Badenhorst rule is neither absolute nor inflexible. It
must be applied with due regard to its underlying rationale. Its primary concern is to
prevent the abuse of insolvency or liquidation proceedings where factual disputes on the
existence, or not, of an indebtedness cannot properly be resolved on affidavit in motion
proceedings.
[104] With its underlying rationale in mind, the Constitutional Court in Trinity Asset
Management (Pty) Ltd v Grindstone Investments 132 (Pty) Ltd 43 held that the
Badenhorst rule does not preclude a court from deciding a straight-forward legal issue
based on common cause facts. The Constitutional Court moreover held in Trinity Asset
Management44 (my italics):
‘Liquidation proceedings are designed to bring about a concurrence of creditors
to ensure an equal distribution of the insolvent estate between them, and are
inappropriate to resolve a dispute as to the existence of a debt. In order to
prevent the possible abuse of the liquidation process, the rule was developed to
the effect that where there is a genuine and good faith factual dispute concerning
an alleged insolvent debtor's indebtedness to a creditor, the application for
provisional liquidation should normally be dismissed.’

42 I reiterate that I permitted Mr. Griesel an opportunity to be heard on all issues subject to a
pending and ultimate determination of his client’s intervention application.

pending and ultimate determination of his client’s intervention application.
43 2018 (1) SA 94 (CC) para 92.
44 Supra para 145.

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[105] In finding as it did, the Constitutional Court endorsed the earlier decision of Rogers J .
Orestisolve (Pty) Ltd t/a Essa Investments v NDFT Investment Holdings (Pty) Ltd and
Another45 held:
‘Even where the facts are undisputed, there may be a genuine and reasonable
argument whether in law those facts give rise to a claim. I have not found any
case in which the Badenhorst role has been applied, either at the provisional or
final stage, to purely legal disputes. If the Badenhorst rule's foundation is abuse
of process, it might be said that it is as much an abuse to resort to liquidation
where there is a genuine legal dispute as where there is a genuine factual
dispute. But if the Badenhorst rule extends to purely legal disputes, I venture to
suggest that the rule, which is not inflexible, would not generally be an obstacle
to liquidation if the court felt no real difficulty in deciding the legal point. . .. The
equivalent rule in England finds application where the dispute is shown to be one
‘whose resolution will require the sort of investigation that is normally within the
province of a conventional trial. A purely legal question would not have that
character ...’
[106] The recent decision in Investec Bank Ltd v NSN and Another 46 restated and applied the
principle that the Badenhorst rule does not preclude a sequestrating court from deciding
legal questions; even where there may be genuine and reasonable argument as to
whether, in law, facts give rise to the applicant’s claim or Mr. Maree’s indebtedness.
[107] With these authorities in mind, the position is the following: W here the dispute raised by
a respondent in a sequestration application is purely legal in nature, and arises from
essentially common cause or undisputed facts, a Court is entitled to determine that
issue within the context of such proceedings.
[108] I now turn to deal with the question of whether the lis alibi pendens principles precluded

me from determining the legal questions / disputes within the context of the pending
Maree / Investec action.

45 2015 (4) SA 449 (WCC) para 12.
46 2025 (1) SA 210 (GP) at para 50 and see fn 50 which cites with approval the aforesaid
references to Orestisolve (and Trinity Asset Management supra.

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[109] Broadly stated, a plea of lis alibi pendens arises when two legal proceedings involving
the same parties, similar causes of action, and the same subject matter (i.e. the
underlying central dispute(s) of law or fact is essentially the same) are pending
simultaneously in different courts.
[110] The Supreme Court of Appeal describes the plea and its requirements as follows in
Caesarstone Sdol-Yam Ltd v The World of Marble and Granite 2000 CC and Others:47
‘As its name indicates, a plea of lis alibi pendens is based on the proposition that
the dispute (lis) between the parties is being litigated elsewhere, and therefore it is
inappropriate for it to be litigated in the same court in which the plea is raised. The
policy underpinning it is that there should be a limit to the extent to which the same
issue is litigated between the same parties, and that it is desirable that there be
finality in litigation …’
[111] That said, it is trite that a plea of lis alibi pendens is not an absolute bar or defence ,
even if all its elements or requirements are present. It instead operates as a dilatory
plea. In this regard, was stated in Loader v Dursot Bros (Pty) Ltd48 that:
‘It is clear on the authorities that a plea of lis alibi pendens does not have the effect
of an absolute bar to the proceedings in which the defence is raised. The court
intervenes to stay one or other of the proceedings because it is prima facie
vexatious to bring two actions in respect of the same subject matter. The court has
a discretion which it will exercise in a proper case, but it is not bound to exercise it
in every case in which a lis alibi pendens is proved to exist.’
[112]
The aforesaid is because a Court, in the exercise of its discretion and with due
consideration to the prevailing circumstances ,49 may find that the rights afforded to a

47 2013 (6) SA 499 (SCA) para 2. See also Nestle (South Africa) (Pty) Ltd v Mars Inc. 2001 (4)
SA 542 (SCA), paras 16 and 17.

SA 542 (SCA), paras 16 and 17.
48 Loader v Dursot Bros (Pty) Ltd 1948 (3) SA 136 (T) 138 and 139.
49 See inter-alia Michaelson v Lowenstein 1905 TS 324 at 328; Loader supra; Les Marquis (Pty)
Ltd v Marchand & others 1989 (2) SA 651 (T) 658D-E; Yekelo v Bodlani 1990 (3) SA 970 (Tk)
973C-E; Van As v Appollus en Andere 1993 (1) SA 606 (C) 610D -F; Friedrich Kling GmbH v
Continental Jewellery Manufacturers; Guthmann and Wittenauer GmbH v Continental
Jewellery Manufacturers 1993 (3) SA 76 (C) 83B -C – as collected in the useful article by
Johan Moorcroft, Some Thoughts On Lis Pendens, published 4 June 2024.

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litigant in terms of section 34 of the Constitution, 50 or considerations of justice, equity
and the balance of convenience, trump the invoking of the plea. 51 As such, a Court has
an inherent discretion, to be exercised judicially, to allow a second case to proceed.52
[113] Within the above considerations in mind, there is nothing before me that persuades me
that (i) the sequestration application is mala fide or pursued vexatiously, or with an
ulterior purpose or motive, (ii) that it would be unjust, inconvenient or unfair for me to
decide the legal questions / disputes, and (iii) that my determining the issue would
impinge upon Mr. Maree’s section 34 rights. Theron AJ determined the legal questions /
disputes; albeit he did so within the context of a provisional sequestration order. He
cannot be faulted for doing so. Moreover, my determining the legal questions / disputes
within the context of this application will put an end to the parallel proceedings, avoid a
risk of conflicting judgments, and ensure finality and the orderly administration of
justice;53 while protecting the interests of the concursus creditorum.
[114] Consequently, in the exercise of my judicial discretion, I will determine the legal
questions / disputes.
Determining the legal questions / disputes
[115] I have considered and applied my mind to the relevant NCA provisions, the arguments
made, and Theron AJ’s reasoning and findings on the legal questions / disputes . I have
done so accepting that the onus and degree of proof applicable to a final sequestration

50 Section 34 of the Constitution provides that everyone has the right to have a dispute that can
be resolved by the application of law decided by a court or tribunal in a fair public hearing.
And see for example Giddey NO v J C Barnard and Partners 2007 (5) SA 525 (CC) para 15,
as applied in Acacia Leasing ((Pty) Ltd v JP Krugerrand Deals CC 2019 JDR 1056 (GJ) para
7 where this Court rejected a plea of lis alibi pendens.

7 where this Court rejected a plea of lis alibi pendens.
51 Keyter NO v Van Der Meulen and Another 2014 (5) SA 215 (ECG) para 12 and 20.
52 Hi-Q Automotive (Pty) Ltd v Erga Investments (Pty) Ltd [2024] JOL 63227 (GJ).
53 L.E.M v A.N.M and Others (2023/112995) [2025] ZAGPJHC 1244 (4 December 2025) para 5.

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order is higher than that when considering a provisional order ,54 albeit I doubt that this
higher onus has any real impact on the determination of a legal issue.
[116] I start with the material common causes terms of the Maree Guarantee, being:
‘1. This guarantee and indemnity ( ‘Guarantee’) is made by the Guarantor
Group55 in favour of Investec and its successors or assigns. The
Guarantor Group hereby unconditionally and irrevocably guarantees as a
principal obligation:
1.1 the due and punctual payment of all and any monies which Viturwell
(Pty) Limited ( “Debtor”) may now or from time to time in the future
owe to Investec from whatsoever cause and howsoever arising,
including any judgment debt against the Debtor; and
1.2 the due and punctual performance and discharge by the D ebtor of
each of the Debtor’s obligations to Investec under or arising from all
contracts or agreements entered into or to be entered into in the
future between Investec and the Debtor,
2 …
3. The liability of the Guarantor Group in terms of this Guarantee shall be
limited to R ’s 182,000,000.00 … Plus interest thereon plus and costs
incurred by Investec enforcing its rights in terms of this Guarantee.
4. The Guarantor Group hereby unconditionally and irrevocably undertakes
that should it receive a written demand from Investec for payment of any
amount contemplated in clauses 1.1 or 1.2 …, the Guarantor Group shall
immediately pay such amount so demanded to Investec in cash without
setoff, counter-claim or any other deduction whatsoever.’
And:
‘Each Guarantor hereby reaffirms by signing below that:
1 The Guarantor understands that this Guarantee will secure not only one
transaction but also any and all future transactions entered into between
the Debtor and Investec as provided for in this Guarantee and I ndemnity
unless clause 1 indicates that the Guarantee expressly applies only in

54 Mars, The Law of Insolvency in South Africa, supra, and see De Beer v Cowling 2014 JDR

54 Mars, The Law of Insolvency in South Africa, supra, and see De Beer v Cowling 2014 JDR
2384 (GP) para 4.
55 The reference to the "Guarantor Group" is a reference to Mr. Maree (‘the Guarantor’).

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respect of the obligations of the debt or under or in connection with the
Specific Loan Agreement.’
2. …
3. The Guarantor understands its rights and obligations under this
Guarantee.
4. The Guarantor understands that its liability in terms of this Guarantee will
be continuous until all the D ebtor’s existing and future obligations have
been met as provided for in this Guarantee.
5. The Guarantor acknowledges that it has the right to obtain independent
legal advice on this Guarantee.’
[117] Simply stated, the fact and terms of the Maree Guarantee, which Mr. Maree does not
dispute, provide that Mr. Maree undertook to satisfy, upon demand, Viturwell’s
obligations to Investec, including those owed in terms of the Viturwell loan agreement
with Investec.
[118] Given these terms, I cannot fault Theron AJ’s reasoning or findings on the legal
question. I quote, for ease of refence, the relevant portions of Theron AJ’s judgment (the
underlining is Theron AJ’s and his footnote references are included but renumbered
accordingly for purposes of this judgment):
‘[59] The dispute raised by Maree is a legal question, namely does the Maree
guarantee stand to be set aside, alternatively, is liability thereunder
suspended on the basis that it constitutes reckless credit in terms of
Section 79 of the NCA.
[60] Section 4(1) of the NCA provides that:
‘(1) Subject to sections 5 and 6, this Act applies to every credit
agreement between parties dealing at arm’s length and made
within, or having an effect within, the Republic, except-
(a) a credit agreement in terms of which the consumer is-
(i) a juristic person whose asset value or annual
turnover, together with the combined asset value
or annual turnover of all related juristic persons, at
the time the agreement is made, equals or
exceeds the threshold value determined by the
Minister in terms of section 7 (1);
…

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(b) a large agreement, as described in section 9(4), in
terms of which the consumer is a juristic person whose
asset value or annual turnover is, at the time of the
agreement is made, below the threshold value
determined by the Minister in terms of section 7(1);’
[61] A ‘large agreement’ is one in which the principal debt under the
transaction exceeds R250 000.00.56
[62] Section 4(2)(c) reads as follows:
‘this Act applies to a credit guarantee only to the extent that
this Act applies to a credit facility or credit transaction in
respect of which the credit guarantee is granted;’
[63] Section 8(5) of the NCA reads as follows:
‘An agreement, irrespective of its form but not including an
agreement contemplated in subsection (2), constitutes a credit
guarantee if, in terms of that agreement, a person undertakes
or promises to satisfy upon demand any obligation of another
consumer in terms of a credit facility or a credit transaction to
which this Act applies.’
[64] The loan to Viturwell is demonstrably a large agreement. Maree
guarantees the obligations of Viturwell in terms of a large agreement to
which the NCA does not apply.
[65] Part D of the NCA applies only to credit agreements and consumers as
defined in the NCA.
[66] The Maree guarantee is an undertaking or promise to satisfy upon
demand the obligations of Viturwell in terms of the underlying loan
agreement, which is a large agreement. I therefore find that the
provisions of Part D of the NCA are not applicable to the Maree
guarantee.
[67] As a second string to this bow, Maree alleges that the Maree Guarantee
is ‘self-contained contract that creates a principal obligation, and not an
accessory obligation’ and therefore remains governed by the NCA.
[68] It is clear to me from the wording of the Maree guarantee that he
interceded as co-principal debtor with Viturwell for the amounts owing to
Investec by Viturwell . In doing so, Viturwell was not liberated from its

Investec by Viturwell . In doing so, Viturwell was not liberated from its

56 Section 9(4) of the NCA read with “ Determination of Thresholds ” published in terms of the
NCA under General Notice 713 in Government Gazette 28893 of 1 June 2016.

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obligations. Rather, both Maree and Viturwell became liable in solidum
for the debt.57
[69] The purpose of the Maree guarantee was not for Investec to provide
credit to Maree. Although Maree points to the phraseology of the Maree
Guarantee which speaks to a ‘principal obligation’, what is recorded to be
that principal obligation is guarantee of the due and punctual payment by
Viturwell to Investec, which Maree guarantees.
[70] Indeed, no credit was ever advanced to Maree, and he cannot and does
not assert for the converse.
[71] No credit provider – consumer relationship was established between
Maree and Investec and the Maree Guarantee thus, factually, could not
be a credit facility of credit transaction in its own right.
58
[72] Alternatively, a further assertion was made in the answering affidavit, but
not advanced during argument, that the Maree Guarantee is not a credit
guarantee because it ‘makes no reference whatsoever to the Loan
Agreement’ and therefore the ‘exclusion contained in section 4(2)(c) of
the NCA does not apply … ’.
[73] Maree’s argument would mean that every continuing and covering
security given by a surety or guarantor would not (and could not)
constitute a ‘Credit Guarantee’ in relation to a loan agreement if such
was not specifically referred to in the suretyship/guarantee, even though
it is manifest that section 8(5) of the NCA was directed at the regulation
of this very type of agreement.
[74] Not only is this argument absurd, but it would also profoundly (and
adversely) affect the entire financial and banking sector.
[75] A purposive approach must be adopted to ascertain whether an
agreement constitutes a credit guarantee.
59
[76] It is not disputed that the Maree g uarantee was given as security for
Viturwell’s indebtedness to Investec under and in terms of the Loan
Agreement.

57 Total South Africa (Pty) Limited v Bekker NO 1992 (1) SA 617 (A) 627G to 628C.

57 Total South Africa (Pty) Limited v Bekker NO 1992 (1) SA 617 (A) 627G to 628C.
58 Shaw v McIntosh and Another 2019 (1) SA 398 (SCA) paras 12 and 13.
59 Ratlou v Man Financial Services SA (Pty) Limited 2019 (5) SA 117 (SCA).

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[77] The Maree g uarantee and the Loan Agreement were executed on the
same day.
[78] If the Maree guarantee was not issued in respect of the Loan Agreement,
it begs the question for what debt it was ‘granted’ ? Only one debt of
Viturwell to Investec is advanced by Investec, and no other debts are
referenced. Indeed, Investec confirms that only one loan facility was
granted by it to Viturwell.
[79] I consequently reject any argument that the Maree guarantee was not a
credit guarantee as defined [in] the NCA.’
[119] To the above must be added the following explanation in Toyota Financial Services
(South Africa) v Waste Partners Investment (Pty) Ltd:60
‘… The provisions of the National Credit Act do not apply to juristic persons with an
asset value or annual turnover of more than R1 million, nor does it apply to juristic
persons with an asset value or annual turnover of less than R1 million who enters
into a mortgage agreement or an agreement with a loan value of more than R 250
000. In this case the loan amount exceeds R 250 000, so irrespective of the
turnover of the Defendant, the National Credit Act is not applicable, and there is,
therefore, no statutory requirement to deliver a notice to the Defendant in terms
of section 129 prior to the enforcement of the agreement.’
[120]
Ultimately decisive of the legal questions / disputes is the express wording of section
78(1) - the opening section of Part D (‘Over-indebtedness and reckless credit’) - of the
NCA. The section, under the heading ‘Application and interpretation of this Part’, reads:
‘78(1) of This Part does not apply to a credit agreement in respect of which the
consumer is a juristic person.’
[121] In summary, because Investec did not extend credit to Mr. Maree, and because the
provisions in issue of the NCA do not apply to the Viturwell loan agreement, they also

60 2022 JDR 2824 (GJ) para 31.

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do not apply to the related Maree Guarantee. 61 Consequently, the NCA’s Part D (‘Over-
indebtedness and reckless credit’) does not apply to the Maree Guarantee.
[122] No oral argument was presented at the hearing before me on behalf of Mr. Maree as to
any errors, defects or omissions in, or reasons to depart from, Theron AJ’s reasoning
and findings.
[123] In conclusion of this topic, the ‘legal questions / disputes’ are determined as follows: (i)
the Maree Guarantee does not stand to be set aside, (ii) the Maree Guarantee does not
constitute reckless credit of the type contemplated in the NCA, and (iii) Mr. Maree’s
liability under the Maree Guarantee does not fall to be suspended.
[124] As such, I am satisfied that Investec has established the required claim against Mr.
Maree, and is a creditor of his estate in at least the prescribed amount.62
Mr. Maree has committed an act of insolvency and is also insolvent
[125] Investec states that Mr. Maree ’s pleaded statement that he is unable to satisfy the
Maree Guarantee debt in his particulars of claim in the Maree / Investec action is an act
of insolvency in terms of section 8(g)63 of the Insolvency Act. I agree.
[126] Investec also argues that Mr. Maree’s written request for relief for a two year
suspension of liability under the Maree Guarantee is an act of insolvency under section

61 Plastomark (Pty) Ltd v CK Injection Moulders CC and Another; In re: Ultrapolymers (Pty) Ltd
v CK Injection Moulders CC and Another (19065/2015) [2015] ZAWCHC 129 (1 September
2015) [2015] ZAWCHC 129 para 15-21.
62 See section 12(1)(a) of the Insolvency Act, 1936.
63 A debtor has given notice in writing to any one of his creditors that he is unable to pay any of
his debts.

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8(e)64 of the Insolvency Act. I likewise agree, albeit I believe that it is, in substance, also
a section 8(g) act of insolvency.
[127] Equally important is Mr. Maree’s claim in his answering affidavit in this application that
the sequestration of his estate will not be to the advantage to creditors (an issue I deal
with next in this judgment). 65 It is therefore understandable that Mr. Maree does not
seriously contend that he is solvent.
[128] I am therefore satisfied that Mr. Maree has committed at least one an act of insolvency
and is also insolvent.66
Is there an advantage to creditors by the final sequestration Mr. Maree estate?
[129] While the Insolvency Act does not define the phrase ‘ advantage to creditors ’, it is
generally accepted that creditors will be advantaged when there is a reasonable
prospect of some pecuniary benefit to the general body of Mr. Maree’s creditors. 67 The
concept of advantage to creditors is therefore something of a broad church .68 It is not
only limited to a suitable (not-negligible) dividend, but incorporates a non-exhaustive list
of other considerations and factors; 69 such as an enquiry into a debtor's financial
affairs.70 In essence, a sequestration order must have served some useful purpose.71

64 A debtor makes or offers to make any arrangement with any of his creditors for releasing him
wholly or partially from his debts.
65 An admission of insolvency in sequestration proceedings is sufficient to establish an act of
insolvency – see Courier- IT SA (Pty) Ltd v Van Staden and Another 2022 JDR (GJ) pars 65
to 67.
66 See section 12(1)(b) of the Insolvency Act, 1936.
67 Ex Parte Bouwer and Similar Applications 2009 (6) SA 382 (GNP) para 13.
68 Stratford and others v Investec Bank Ltd 2015 (3) SA 1 (CC) para 44 to 46 and Body
Corporate of Empire Gardens v Sithole and Another 2017 (4) SA (SCA) para 10.
69 See for example that listed in Body Corporate of Ceres v Ntukwana supra para 31.

69 See for example that listed in Body Corporate of Ceres v Ntukwana supra para 31.
70 Ex Parte Shmukler-Tshiko and Thirteen other cases 2012 JDR 1796 (GSJ) para 34 and 59.
71 Hillhouse v Stott 1990 (4) SA 580 (W) 585E and Body Corporate Empire Gardens v Sithole
2017 (4) SA (SCA) 161 at page 164 H.

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[130] Accordingly, while the onus of establishing an advantage to creditors remains on the
petitioning creditor, 72 the petitioning creditor is not required to convince a Court, either
prima facie or on a balance of probabilities, that there will as a fact be an advantage to
creditors. All that is required is that the petitioning creditor establishes that there is
reason to believe that there is a prospect, which is not too remote, that there will be an
advantage to creditors.73
[131] Investec claims that creditors will receive a pecuniary benefit, in the form of a not
immaterial dividend74 of approximately R0.75 i n the Rand in Mr. Maree’s sequestration
based on an analysis performed by Investec . In an endeavour to dilute this claimed
dividend, Mr. Maree delphically claims , relying on share certificates , that he is not a
shareholder in various related companies . He does so in the face of his previous
representations to Investec that, while these shares may have been held by others, they
were nevertheless to be regarded as his assets (i.e. that they fell within his estate).
[132] The Supreme Court of Appeal, in Commissioner, South African Revenue Services v
Hawker Air Services (Pty) Ltd and Hawker Aviation Partnership and Others ,75 confirmed
that a Court need not be satisfied that there will be advantage to creditors in the sense
of immediate financial benefit, but that the court need be satisfied only that there is
reason to believe - not necessarily a likelihood, but a prospect not too remote - that by
invoking the machinery of the Insolvency Act, 1936 and as result of the accompanying

72 See Mercantile Bank Limited, a division of Capitec Bank Limited v Ross and another [2023]
JOL 58951 (GJ) and the discussion of this judgment on this point in K2015353139 South
Africa (Pty) Limited v Motsoane and another [2024] JOL 65874 (GJ).
73 See inter-alia Wilkins v Pieterse 1937 CPD 165, London Estates (Pty) Ltd v Nair 1957 (3) SA

591 (N) 592H-F and Epstein v Epstein 1987 (four) SA 606 (C) 609D.
74 Stratford supra.
75 2006 (4) SA 292 (SCA).

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investigations and enquir ies, assets might be unearthed, attached, recovered or sold,
the proceeds of which will yield a pecuniary benefit for creditors.76
[133] Investec also pursues this application on the aforesaid basis. There is indubitable merit
in it doing so. Having regard to inter-alia (i) the dispute that Mr. Maree now raises
regarding the true ownership of shareholdings he previously relied upon when engaging
with Investec, (ii) the non-explanation of the fate of the asset bases of the various
companies wound-up by Mr. Maree, (iii) Investec’s claims that Mr. Maree played a key
role in Viturwell’s misappropriation and misdirection of funds (a most serious claim
which he fails to meaningfully address ), (iv) Mr. Maree’s unexplained withdrawal of
some R5,7 million from related company bank accounts, and (v) the receipt of some
R21,5 million by Mr. Maree’s and Zatopax’s Mr. Muller family members, I am satisfied
that there is at least a prospect, not too remote, that an investigation and enquiry into
Mr. Maree’s financial affairs may reveal assets capable of realisation in order to achieve
a reasonably satisfactory or meaningful pecuniary benefit for his estate’s creditors.
77 Mr.
Malherbe’s submission that there is no evidence that Mr. Maree himself pocketed ‘any
money himself’ merely entrenches the need for an investigation and enquiry.
[134] If anything, t he aforesaid considerations, separately or cumulatively, serve as a classic
example of satisfying section 12(1)(c)’s advantage to creditors requirement within the
context of insolvency investigations and enquiries.78 I am therefore satisfied that there is

76 See inter-alia Stratford supra , Liberty Group v Moosa 2023 (5) SA 126 (SCA) para 127,
Dunlop Tyres (Pty) Ltd v Brewitt 1999 (2) SA 580 (W) 583; Lynn & Main Inc v Naidoo &
another 2006 (1) SA 59 (N) 68 to 69; Commissioner, South African Revenue Service v
Hawker Aviation Partnership & Others 2006 (4) SA 292 (SCA) 306, and BP Southern Africa

Hawker Aviation Partnership & Others 2006 (4) SA 292 (SCA) 306, and BP Southern Africa
(Pty) Ltd v Furstenburg 1966 (1) SA 717 (O) 720, Amod v Kahn 1947 (2) SA 432 (N) 438, and
Meskin & Co v Frieman 1948 (2) SA 555 (W) 559.
77 Stratford and others v Investec Bank Ltd supra at 46.
78 Meskin & Co v Friedman supra 558, and Du Randt Richards Inc Attorneys v Scheepers NO
and another (ABSA Bank Limited intervening) [2013] JOL 30519 (GSJ) para 5.

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reason to believe that it will be to the advantage of Mr. Maree’s creditors if his estate is
finally sequestrated.79
[135] Semble, whilst unnecessary for purposes of determining the fate of this application, it
may be time for our Court’s to consider definitely expanding, in an appropriate case
obviously, the advantage to creditors consideration to include neutralising recidivistic
businesspeople and serial defaulters who transact and conduct their affairs recklessly,
with gross negligence or for fraudulent purposes to the prejudice of creditors. 80 I
reiterate that section 12(1)(c) of the Insolvency Act only references an ‘advantage to
creditors’. As, already indicted, this is not a closed list. The advantage to creditors
consideration should possibly not only sound, be it directly or indirectly, in a dividend or
possible return for creditors , or what the Constitutional Court labels as a “pecuniary
benefit’
81, but also in an advantage ensuing to creditors by their being protected from
doing business with recalcitrant insolvents, who avoid having their estates sequestrated
only because a petitioning creditor is unable to demonstrate an advantage to creditors
that sounds, be it directly or indirectly, in pecuniary dividend for creditors . I believe that
this, in an appropriate case, would not only be to the advantage of creditors but also in
the broader public interest.


79 See section 12(1)(c) of the Insolvency Act, 1936.
80 Using the language in section 22 of the Companies Act, No. 71 of 2008
81 Stratford supra para 45

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Mr. Maree’s additional defenses / considerations / arguments
[136] I have, at some length, carefully considered - in addition to that set out above - all of the
other defences, considerations and arguments raised by and on behalf of Mr. Maree in
his answering affidavit, his heads of argument filed in respect of the provisional
sequestration (albeit their main focus was the then-postponement application
proceedings), and in oral argument before me.
[137] None of Mr. Maree’s additional defences, considerations and arguments have merit, nor
do they move me to come to a different conclusion in respect of this application, or to
exercise my discretion any differently.
[138] Mr. Maree’s additional defences, considerations and arguments include a meritless, and
ultimately (correctly) not pursued, denial of the personal knowledge of the deponent to
Investec’s founding and replying affidavits.82
[139] Mr. Maree also claims that it would be unfair, unreasonable and unduly harsh for his
estate to suffer a final sequestration order despite the pending and to be determined
Investec / Santam proceedings, and the Santam / Maree proceedings. There is an
obvious overlap between these claims and that already stated above when dealing with
Mr. Maree’s lis pendens defence and his last-minute ‘stay’ application.
[140] In addition to that stated above inter -alia in respect of Mr. Maree’s ‘stay’ application and
his lis alibi pendens plea, I also must add that the Investec / Santam proceedings and
the San tam / Maree proceedings are proceedings aimed at enforcement and money
judgments.
[141] It is trite that sequestration proceedings are not proceedings pertaining to the
enforcement of a debt. 83 They are instead aimed primarily at securing an equitable

82 On the lack of merit in this denial see the ratio in Rees and Another v Investec Bank Limited
2014 (4) SA 220 (SCA).

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distribution of an insolvent’s estate among the insolvent’s creditors.84 As Trengove AJ in
Investec Bank Ltd and Another v Mutemeri and Another stated:85
‘…a sequestration order is not an order for enforcement of the claim . Its purpose
and effect are merely to bring about a convergence of the claims in an insolvent
estate to ensure that it is wound up in an orderly fashion and that creditors are
treated equally’.
[142] Consequently, I am unable to find that a respondent, in opposing sequestration
proceedings, is able to invoke lis alibi pendens within the context of pending (other)
proceedings unrelated to the sequestration of his or her estate.86
[143] I also find nothing unfair, unreasonable or unduly harsh for Mr. Maree’s estate to suffer
a final sequestration order in circumstances where Mr. Maree voluntarily undertook and
undertook the obligations that he did under the Maree Guarantee. Mr. Maree is, by all
accounts, an experienced businessperson.
[144] Finally, Mr. Malherbe, on behalf of Mr. Maree, did not take no issue with Investec’s
compliance with the necessary service and procedural formalities for the sequestration
application, nor with its compliance with the terms of the provisional sequestration order.
[145] It is statutorily prescribed, and long -established, that the granting of a sequestration
order is discretionary ; irrespective of the grounds upon which the sequestration order is
sought.87

83 Collett v Priest 1931 AD 290 at 299.
84 Electrolux South Africa (Pty) Ltd v Rentek Consulting (Pty) Ltd (19664/2022) [2023] ZAWCHC
202; 2023 (6) SA 452 (WCC).
85 2010 (1) SA 265 (GSJ) para 31.
86 Electrolux South Africa supra.
87 Section 12(1) of The Insolvency Act.

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[146] This discretion is, however, a limited or narrow discretion where an unpaid creditor is ex
debito justitiae entitled to a sequestration order. This limited or narrow discretion is to be
judicially but rarely exercised and then in special or unusual circumstances only.
[147] This is case where an unpaid creditor is ex debito justitiae entitled to a sequestration
order. Considering this application holistically , and also considering its various features ,
nuances and so too Mr. Maree’s various pleas ad misericordiam, separately, there are
no special or unusual circumstances, nor any circumstances, that warrant my not
granting a final sequestration order.
Costs / litigation is not a game
[148] Before concluding this judgment, I must mention that w hile it is understandably
desirable that litigation should not result in a ‘zero-sum context’,88 litigation is more
importantly not a game, and must not be engaged in as such.89
[149] More specifically:90
‘Litigation is not a game of chess where players outsmart themselves by dexterity
of purpose and traps. On the contrary, litigation is a contest by judicial process

88 See Commissioner: Companies & Intellectual Property Commission v Independent Music
Performance Rights Assoc and Another (37475/2020) [2020] ZAGPPHC 668 (23 November
2020) para [1].
89 See, inter-alia, Cadac (Pty) Ltd v Weber-Stephen Products Co and others 2011 (3) 570 (SCA)
para 10; HAL obo MML v MEC for Health, Free State 2022 (3) SA 571 (SCA) para 197.
Tumileng Trading CC v National Security and Fire (Pty) Ltd; E and D Security Systems CC v
National Security and Fire (Pty) Ltd 2020 (6) SA 624 (WCC) para 14, MGB v DEB 2013 (6)
SA 86 (KZD) para 39, Niewoudt v Joubert 1988 (3) SA 84 (SE) 90E and 91 B/C, Ramodibe v
S (A80/2018) [2020] ZAGPPHC 271 (4 May 2020) para 32, Sithole v Regional Magistrate A
Swanepoel and Another (REV69/2022) [2024] ZALMPPHC 17 (26 February 2024) para 19,
Makate v Vodacom Ltd 2016 (4) SA 121 (CC) para 120.

Makate v Vodacom Ltd 2016 (4) SA 121 (CC) para 120.
90 Oladeji v Inspector General of Police and Another (2018) LPELR-45141 (CA) and attributed
to Nigerian Supreme Court Justice Karibi -Whyte – see Aduaka and Anyaegbu, The Abuse of
Legal Process in Nigeria: The Remedies , The International Institute for Science, Technology
and Education (IISTE), Journal of Law, Policy and Globalization, www.iiste.org . Similar
judicial sentiments and language is used by Naude- Odendaal J, with whom Phatudi JP
concurs, in Sithole v Regional Magistrate A Swanepoel and Another (REV69/2022) [2024]
ZALMPPHC 17 (26 February 2024) para 19 and also in Satya Bhama Gandhi v Director of
Public Prosecutions & 3 others [2018] KEHC 6100 (KLR) page 26 – a decision of the Kenyan
High Court: Nairobi (Milimani Law Courts).

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where the parties place on the table of justice their different positions clearly,
plainly and without tricks.’
[150] The aforesaid must also be true because judicial resources are severely constrained in
this Division.91 As Navsa JA states in Socratous v Grindstone Investment: 92 ‘Courts are
public institutions under severe pressure’. If and where litigation is treated as a game,
Court and judicial resources are further unduly burdened; frustrating the administration
of justice, and eroding faith in the judicial system.
[151] Rendering the aforesaid judicial sentiments and dicta applicable, Mr. Maree’s opposition
to the sequestration application , on a conspectus of the whole application , and
Zatopax’s intervention application are not bona fide or reasonable. A s such , in the
absence of the required special circumstances ,93 the ordinary or general rule applies 94
and the costs of Mr. Maree’s opposition to the sequestration application are not to be
included in the costs of the sequestration.95
[152] I must however mention that Messrs Malherbe and Griesel respectively – faced with
prominent and seasoned opponents and difficult cases – conducted themselves in the
best traditions of the Bar, argued pointedly and without hyperbole, and made the
appropriate concessions; for which I express my gratitude.
Conclusion and orders
[153] For the reasons set out above, I grant the following orders:

91 Supercart South Africa (Pty) Limited v Vanesco (Pty) Limited [2025] 2 All SA 911 (GJ) p ara
28.
92 2011 (6) SA 325 (SCA).
93 Julie Whyte Dresses (Pty) Ltd v Whitehead 1970 (3) SA 218 (D).
94 Behrman v Sideris 1950 (2) SA 366 (T) and Cyril Smiedt (Pty) Ltd v Lourens 1966 (1) SA
1150 (O) at 158.
95 Matsepe NO V Plaatjie NO [2020] JOL 47327 (FB).

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1. The intervention application by Za topax (Pty) Ltd dated 9 March 2026 is dismissed
with costs, which costs shall be on Scale C and shall include the applicant’ s costs
of both senior and junior counsel (where employed).
2. The respondent’s application dated 9 March 2026 for a stay of the provisional
sequestration order is dismissed.
3. The provisional order for the sequestration of the estate of the respondent (Identity
no. 6[…]) is confirmed and made final , and a final order for the sequestration of his
estate is granted.
4. The respondent’s costs of his opposition to the sequestration application are not to
be included in the costs of the sequestration of his estate.
5. The costs of these proceedings, other than the costs order set out in paragraphs 1
and 4 above, are to be costs in the sequestration of the respondent’s estate. These
costs shall be taxed on Scale C and shall include the applicant’ s costs of both
senior and junior counsel (where employed).

AMM AJ
ACTING JUDGE OF THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION
JOHANNESBURG

Electronically submitted:

Delivered: This judgment was prepared and authored by the Acting Judge whose name is
reflected above. This judgment is handed down electronically by circulation to the p arties / their
legal representatives by email and/or by uploading it to the electronic file of this matter on
CaseLines.

COUNSEL FOR THE APPLICANT: Mr. AG Sawma SC
Mr. JM Hoffman (Adv.)
INSTRUCTED BY: Tugendhaft Wapnick Banchetti & Partners
Attorneys

COUNSEL FOR THE RESPONDENT: Mr. Malherbe (Adv.)

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INSTRUCTED BY: Machobane Kriel Inc. Attorneys

COUNSEL FOR INTERVENING APPLICANT: Initially Mr. E. Braga (Adv.) and
subsequently Mr. PJA Griesel (Adv.)

INSTRUCTED BY: Van Rensburg Schoon Inc.

ENROLLED AS MATTER: OIN-7
DATE OF ARGUMENT: 10 March 2026
DATE OF JUDGMENT: 15 June 2026