IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, PRETORIA
CASE NO: 2026-096276
In the matter between:
CLIVE MALCOLM ELLISON Applicant
and
ABSA BANK LIMITED First Respondent
MR RICHARD HICKEN Second Respondent
MR DEVALD BREYTENBACH Third Respondent
MASTER OF THE HIGH COURT Fourth Respondent
DATE OF JUDGMENT: This judgment is issued by the Judge whose name is reflected herein
and is submitted electronically to the parties/their legal representatives by email. The judgment
is further uploaded to the electronic file of this matter on CaseLines by the Judge’s secretary.
The date of the judgment is deemed to be 22 June 2026.
JUDGMENT
Manamela, J
(1) REPORTABLE: NO
(2) OF INTEREST TO OTHER JUDGES: NO
(3) REVISED.
22 June 2026
Date K. La M Manamela
-
2
Like all things in life, like the best of times and the worst of times, litigation must, at
some point, come to an end.1
Introduction
[1] The facts in this matter deserve the prologue above, fittingly in the form of the dicta
(observations, pronouncements, remarks, sayings, utterances )2 from the Constitutional Court,
the apex court in South Africa. The dicta sum up the attributes of the principle of finality of
litigation.3 For, litigation cannot be pursued forever on the same issues no matter the personal
convictions of a litigant about its importance or the implications thereof for his personal
interests.
[2] The applicant, Mr Clive Malcolm Ellison , approached this Court by way of an urgent
application seeking relief on substantially the same facts as those that formed part of the
litigation which churned not less than three orders of this Division and two orders of the
Supreme Court of Appeal. Details of the orders are set out below.4 Even the current absence of
legal representation on his part did not impair his pursuit of endless litigation. The applicant’s
conduct – no doubt – contradicts the principle that it is in the public interest that litigatio n be
brought to finality.5
[3] The applicant was declared bankrupt in the United Kingdom (‘the UK’) in 2000.
Almost two decades later, in April 2018, the applicant’s UK insolvency or bankruptcy was
recognised in South Africa in terms of the order of this Court and the third respondent, Mr
1 Zuma v Secretary of the Judicial Commission of Inquiry into Allegations of State Capture, Corruption and
Fraud in the Public Sector Including Organs of State and Others (CCT 52/21) [2021] ZACC 28; 2021 (11)
BCLR 1263 (CC) (17 September 2021) [1].
2 VG Hiemstra and HL Gonin, Trilingual Legal Dictionary (3rd edn, Juta 1992).
3 DE van Loggerenberg, Erasmus: Superior Court Practice (Jutastat e -publications, 30 January 2026
(Revision Service 29, 2026) ) (‘Erasmus: Superior Court Practice ’) RS 27, 2025, D1 Rule 42 -1 to 42 -2
and the authorities cited there.
4 Pars [10]-[13] below.
5 Footnote 3 above.
3
Marthinus Jacobus Dewald Breytenbach 6 (‘Mr Breytenbach’ or the third respondent,
interchangeably) was appointed by the fourth respondent, the Master of the High Court,
Pretoria (‘the Master’), as a trustee. Mr Breytenbach was initially appointed jointly with the
second respondent, Mr Richard Hicken (‘Mr Hicken’), but the latter subsequently resigned
from his position as a trustee. The effect of the recognition order of the applicant’s UK
bankruptcy is that assets owned by the applicant in South Africa at the time formed part of his
insolvent estate administered by Mr Breytenbach. The applicant ’s assets included an
immovable property situated in Waterkloof Extension 2, Pretoria (‘the Property’). The first
respondent, ABSA Bank Limited (‘the Bank’) , held security over the Property due to monies
previously lent and advanced to the applicant, ostensibly, towards acquisition of the Property.
[4] The relief currently sought by the applicant is rather unclear due to the nature and extent
of its formulation in both the notice of motion and the founding affidavit. This is not surprising
as the applicant appeared in person at the hearing, without the benefit of legal representation,
and this appears to have been the position when his papers were drafted. The applicant seeks
the following relief, quoted verbatim (word for word; literally),7 from the notice of motion:
• Condoning non-compliance with ordinary forms and service due to urgency.
• Interdicting any sale, transfer, attachment, dissipation, or further
administration steps pending final determination.
• Directing Respondents to suspend reliance on any alleged insolvency /
bankruptcy process concerning Applicant.
• Directing the Fourth R espondent to produce the co mplete file, claims,
minutes, appointments, and supporting documents.
• Reviewing and setting aside any unlawful appointments, recognition s,
meetings, or acts founded on unproven claims.
• Costs against opposing Respondents.8
meetings, or acts founded on unproven claims.
• Costs against opposing Respondents.8
[5] In the heads of argument – also seeming to have been prepared without the benefit of
legal representation - the applicant stated th e relief sought to include the following : (a)
6 The full names of the trustee as reflected on FA annexure ‘MB1’ certificate of appointment, CL 011-15.
7 Hiemstra and Gonin, Trilingual Legal Dictionary.
8 Notice of motion, CaseLines (‘CL’) 006-4.
4
declaring that the first respondent’s (i.e. the Bank’s) authority under the recognition order has
expired; (b) declaring that no lawful bas is exists for execution against the Property; (c)
directing the respondents to disclose all documents relied upon, and (d) costs of the application
to be paid jointly and severally by the respondents. The applicant says he launched the urgent
application due to ongoing prejudice, which continues through reliance on an allegedly
unlawful insolvency process.
[6] The application is opposed only by Mr Breytenbach as the third respondent and the
trustee of the applicant’s insolvent estate. In the main, Mr Breytenbach labels the application
an abuse of the process of this Court and a pure attempt to further avoid the legal consequences
of binding orders previously granted by the Court. He also criticises the timing of the launch
of the application, whose primary target he considers to be an attempt to interdict the sale and
transfer of the Property. The Property was sold on auction during late April 2026 following the
applicant’s eviction from the Property in February 2026.9
[7] The application came before me on 5 May 2026 and was stood down to 8 May 2026.
This, in the main, was to allow the applicant – appearing in person - to file a replying affidavit,
but he instantaneously declined the offer to do so. The applicant was resolute in his rejection,
despite the Court conscientising him about the importance of the legal step (i.e. delivery of a
replying affidavit). In the end the matter was stood down for him to familiarise himself with
the contents of the answering affidavit , as he disputed the clear proof that same had been
emailed to him . Mr GJ Lötter appeared for the third respondent on bo th occasions . This
judgment was then reserved . I deemed it necessary to hand down a written judgment ,
significantly, to accommodate the applicant as a litigant in person. The judgment , gratefully,
benefitted from the written submissions filed by counsel.
benefitted from the written submissions filed by counsel.
9 The applicant’s eviction from the Property was first ordered on 17 June 2022. See par [12] below.
5
Brief background
[8] This matter has a long history , but it is only necessary to state a few issues in its
background in order to give context to the relief sought and opposition thereto.
[9] The applicant was declared bankrupt in the UK by an order granted on 4 October 2000
by the High Court in that country at the instance of the Commissioner for Inland Revenue, also
of that country. Mr Hicken was appointed a trustee in the UK on 21 November 2004, following
the release from that position of another trustee appointed earlier. Following investigations, Mr
Hicken came to know that the applicant owned the Property and held a bank account in South
Africa (‘SA’).
[10] In his capacity as the trustee of the insolvent estate of the applicant in the UK , Mr
Hicken approached this Division, on application, in 2016 seeking the recognition in SA of the
applicant’s insolvency or bankruptcy in the UK. A provisional order was granted in the form
of a rule nisi 10 during January 2017. On 18 April 2018 , Kollapen J ( before his elevation )
granted final relief, essentially, recognising in SA the applicant’s bankruptcy order from the
UK (respectfully, ‘the Kollapen Judgment’). The order made in the Kollapen Judgment, in its
full nature and extent, reads as follows:
1. The rule nisi issued on the 30 th of January 2017 is confirmed and a
final order is issued:
1.1 Recognising the insolvency of the First Respondent ordered in terms
of Mr Deputy Registrar Schaffer of the High Court of Justice in
Bankruptcy (United Kingdom) on 4 October 2000 under case number
3873-2000.
1.2 Recognising the Applicant’s appointment as trustee of the Insolvent
Estate of t he First Respondent in terms of the Certificates of
Appointment of Trustee by Creditors’ Meeting of 21 November 2014.
1.3 Once the Applicant has provided security to the satisfaction of the
Master:
Master:
10 ‘A rule nisi is an order of court to which a fixed period of validity has been assigned; when that period of
validity has once expired the rule lapses ’: RC Claassen and M Claassen, Claassen's Dictionary of Legal
Words and Phrases (LexisNexis 2024).
6
1.3.1 Empowering the Applicant to administer the estate of the First
Respondent in respect of all his assets which are or may be
found or are situated within South Africa.
1.3.2 Granting the Applicant all the rights, powers and title of a
trustee in terms of the i nsolvency Act No. 24 of 1936,
including but not limited to protecting and realising any assets
which the First Respondent may have in South Africa for the
benefit of the Bankruptcy Estate.
1.3.3 Entitling the Applicant to administer the estate of the First
Respondent as if a sequestration order had been gr anted
against him by a South African court.11 [underlining added]
[11] The applicant’s efforts to appeal the Kollapen Judgment were to no avail. On 6 March
2019, the first meeting of creditors in the applicant’s insolvent estate was held. Thereafter, on
18 March 2019, the Master appointed Messrs Breytenbach and Hicken, as joint trustees.12 But,
on 1 December 2021, Mr Hicken resigned as trustee. On 22 February 2022 , Mr Breytenbach
was appointed sole trustee by the Master.
[12] The applicant refused to vacate the Property and had to be evicted . The trustees
launched court proceedings for his eviction, which he opposed. He coupled his opposition with
a counterapplication geared towards overturning the Kollapen Judgment and for a declaratory
order that the Property fell outside of his insolvent estate. On 17 June 2022, Collis J granted an
eviction order and dismissed the counterapplication in terms of the following order
(‘respectfully, ‘the Collis Judgment’):
58.1 The First Respondent is evicted from the pr emises situated at … Waterkloof,
Pretoria (‘the premises’).
58.2 The First Respondent is to vacate the premises within 30 days of the date of
this order.
58.3 The sheriff and his/her lawful deputy is authorised and directed to take such
steps as are necess ary to evict the First Respondent from the premises in the
event that the First Respondent does not vacate the premises within 30 days
event that the First Respondent does not vacate the premises within 30 days
from the date of this order.
58.4 The First Respondent is to pay costs of this application on the attorney and
client scale.13
11 FA annexure ‘MB2’ Judgment by Kollapen J handed down on 12 April 2018, CL 011 -26 to 011-27.
12 FA annexure ‘MB1’ certificate of appointment, CL 011-15.
13 FA annexure ‘MB3’ Judgment by Collis J handed down on 17 June 2022, CL 011 -70.
7
[13] The applicant was granted leave to appeal against the Collis Judgment. His appeal
against the Collis Judgment before the Full Court of this Division was unsuccessful in terms of
its judgment handed down on 5 June 2025.14 He was, equally, unsuccessful with his application
for leave to appeal at the Supreme Court of Appeal (‘the SCA’).15 And, on 2 December 2025,
Molemela P of the SCA dismissed his application for reconsideration in terms of section
17(2)(f) of the Superior Courts Act 10 of 2013.16
[14] On 22 December 2025, the Master rejected the applicant ’s request or application for
the removal of Mr Breytenbach as trustee of his insolvent estate.
[15] On 27 February 2026 , the applicant was evicted from the Property, which was
subsequently sold on auction during late April 2026. This urgent application ensued on 28 April
2026.
Applicant’s case
[16] As I have already indicated, the nature and extent of the relief sought by the applicant,
set out in its full extent above,17 is not crafted or set out in very clear terms. As also indicated,
the applicant launched the current proceedings and participated in them without legal
representation.
[17] The relief sought by the applicant may be summarised (with some considerable loyalty
to its original form on my part) as being for: (a) an interdict against the sale and transfer of the
Property, as well as any attachment or execution process against the Property ; (b) an interdict
against further or continuation of the administration of his insolvent estate, pending the final
determination of some unspecified step(s); (c) directing the respondents to pause or suspend
14 FA annexure ‘MB4’ Full Court Judgment, coram (before): Davis J, Van der Westhuizen J and Mazibuko
AJ, handed down on 5 June 2025, CL 011-74 to CL 011-75.
15 FA annexure ‘MB5’ SCA Judgment, coram: Hughes JA and Henney AJA of 30 July 2025, CL 011-77.
16 FA annexure ‘MB6’ Reconsideration order, per Molemela P granted on 2 December 2025, CL 011-78.
17 Par [4], read with par [5], above.
8
their reliance on any alleged insolvency or bankruptcy process in as far as the a pplicant is
concerned; (d) directing the Master to produce a complete file of documents including claims,
minutes and appointments; (e) r eviewing and setting aside of unlawful appointments ,
recognitions, meetings, or acts founded on unproven claims ; (f) declaring that the first
respondent’s (i.e. the Bank’s) authority under the recognition order has expired, and ( g) joint
and several liability for the respondents towards payment of costs of the application. The relief
in (a) to (d) constitutes interdictory relief with ( a) and (b) being in the fo rm of prohibitory
interdict and (c) and (d) mandatory interdict.18
[18] The applicant s tates that the steps purportedly taken by the respondents to create or
administer a bankruptcy or sequestration process affecting him are not lawful. He complains
about the events at the first creditors’ meeting held on 6 March 2019, including the submission
of further claims which were unsupported or rejected for want of proof. Reliance, according to
him, appears to have been placed on claims that were not properly proven or supported by
admissible documentation. And there was material procedural unfairness in the convening of
the meetings, treatment of claims, and the opportunity afforded to challenge the allegations.
Further, that material facts were omitted or not candidly disclosed to relevant decision makers.
The applicant also seeks that the respondents be compelled to discover and produce ‘the full
record’ of the relevant documents or information. The applicant says that he has attempted to
investigate the basis upon which the respondents act, but the M aster has refused or failed to
provide him access to the relevant records. Similarly, the Bank has refused to disclose i ts
dealings with the purported trustee. This obstructive conduct has materially prejudice d him
with regard to his ability to understand and challenge the actions taken against him , the
with regard to his ability to understand and challenge the actions taken against him , the
18 Pars [53]-[57] below on the requirements for interdicts.
9
applicant contends. Notably, these complaints mainly relate to events which took place several
years ago and were either ruled upon by the Court or overtaken by subsequent events.
[19] The applicant, further, complain s that information held by the Bank regarding his
mortgage bond, ostensibly relating to the Property, was utilised without proper authority. The
information is confidential and, thus, should not have been used or circulated without proper
authority or informed consent, the applicant further complains. These complaints, notably, are
not matched by the relief currently sought by the applicant tabulated above. The applicant
doesn’t say what should happen in the event that his complaints or claims are established in
this regard. But I hasten to state that the claims are, clearly, not established.
[20] The applicant, further, complains that, at the relevant times, his mortgage payments to
the Bank were up to date. Prejudicial conduct was visited on him despite the clear evidence
that his relevant accounts were current or not in arrears. According to the applicant a ny
suggestion of insolvency is unfounded and unsupported by admissible evidence. I understand
this to mean that the Property should not have been affected by the insolvency or bankruptcy
process as he was paying the required amounts in compliance with his mortgage bond or loan
agreement with the Bank. But , this wouldn’t matter for purposes of insolvency as it is a
collective debt-collection process affecting all assets and liabilities in an insolvent estate. The
Collis Judgment effectively confirmed that the Property forms part of the insolvent estate.19
[21] Overall, the applicant’s case is that: (a) t he cumulative effect of these irregularities
renders the process ‘unsafe and unreliable ’; (b) he continues to suffer prejudice and harm to
his creditworthiness, reputation and commercial standing ; (c) h e has endured significant
his creditworthiness, reputation and commercial standing ; (c) h e has endured significant
amount of distress, uncertainty and expense in attempting to protect his rights ; (d) t here is a
real risk of loss of assets due to the enforcement steps and continued impairment of his legal
19 Pars [12]-[13] above.
10
rights. Therefore, the applicant seeks the relief set out in the notice of motion, particularly the
preservation of the status quo pending final determination. But the applicant failed to disclose
what is still to be finally determined, when and in what form.
[22] The applicant sought to expand or supplement his case in the heads of argument. This
is impermissible. The assertions in this regard include that the recognition order granted on 12
April 2018 (i.e. the Kollapen Judgment) of the applicant’s UK bankruptcy expressly limited
the powers’ of the t rustees to those which would have existed had the sequestration being
ordered in SA on 4 October 2000. The latter date, it is to be remembered, is the date when the
applicant was declared bankrupt in the UK. 20 The applicant argues that considering the latter
date the sequestration ought to have terminated under SA law after 10 years, being on 4 October
2010, due to his rehabilitation ‘by operation of law’. In my view, this is a purported reliance
upon the provisions of section 127A of the Insolvency Act 24 of 1936 (‘the IA 1936’) providing
for rehabilitation by effluxion of time .21 But the latter provision does not reinvest the
rehabilitated insolvent with his estate or assets from the insolvent estate . The exception
provided in the IA 1936 is under its section 129(2) where rehabilitation was granted by the
court under section 124(3) of the IA 1936, on the basis that no claims have been proven against
the estate of rehabilitated insolvent. This is not applicable to the applicant as claims have been
proven against his estate. Therefore, the trustee is entitled to deal with the Property as an asset
in the applicant’s insolvent estate.
[23] Under the heading ‘constitutional prejudice’, the applicant state s, among others, that
the Property is his primary residence. Therefore, the attempted sale thereof constitutes a severe
infringement of his constitutional rights, including protection against arbitrary deprivation of
20 Par [9] above.
21 Section 127A of the Insolvency Act 24 of 1936 reads in the material part: ‘ (1) Any insolvent not
rehabilitated by the court within a period of ten years from the date of sequestration of his estate, shall be
deemed to be rehabilitated after the expiry of that period …’
11
property and right of access to adequate housing. The infringement in this regard is not
authorised by law and is procedurally substantively unfair , the applicant’s contention
concludes. But, obviously, the court would have considered this when granting the latest
eviction, including earlier in the Collis Judgment. Those orders remain intact and this Court ,
as currently constituted, is incapacitated to interfere with the eviction order.
Third respondent’s case
[24] The case put forward by Mr Breytenbach, as the third respondent, garnered from his
answering affidavit and the submissions by his counsel, Mr GJ Lötter, may be summarised as
appearing below. More details would appear , further below, in the discussion of the issues
identified as requiring determination.
[25] The third respondent’s paramount ground of opposition is that the application
represents the applicant’s quest to relitigate or revisit issues that have been finally determined.
The impugned issues or relief sought is incompetent, moot and res judicata (a matter adjudged;
matter settled by judgment) 22 and that the application is doomed for failure , as they concern
that: (a) the applicant’s bankruptcy in the U K was recognised in SA ; (b) the trustees are
empowered to administer the applicant’s insolvent estate in SA , including realisation of the
assets in the insolvent estate for the benefit of the creditors; (c) the Property forms part of the
applicant’s insolvent estate; (d) the applicant was liable to be evicted from the Property, and
(e) the applicant has already been evicted from the Property in February 2026 . The third
respondent is also of the view that this urgent application was launched by the applicant in an
attempt to suspend the transfer of the Property. As stated above the Property was sold at an
auction a few days before the launch of this application. The application, it is submitted, is an
abuse of process which should not be countenanced by the Court.
abuse of process which should not be countenanced by the Court.
22 Hiemstra and Gonin, Trilingual Legal Dictionary.
12
[26] On the procedural front, the third respondent states that service of the urgent application
was defective due to non -compliance with Rule 4 of the Uniform Rules of this Court. Rule 4
prescribes that new court proceedings, such as motion or application proceedings, ought to be
served by the Sheriff of the High Court.23 The application was served by hand at the attorneys
of record for the third respondent, despite the proceedings not being an interlocutory process.
Service upon the rest of the respondents may also be defective. Therefore, the application ought
to be dismissed due to the defective service on the respondents.
[27] The applicant, it is also submitted, has embarked on an i mpermissible journey of
attacking the orders of the court, despite their final form and effect. But this Court, it is further
submitted, is not cloaked with the jurisdiction to vary or suspend the material previous orders.
This leaves the applicant with no option, but to obey the orders granted against him by the court
as they remain binding until set aside, regardless of whether they are valid or not. This is so as
the applicant has unsuccessfully exhausted all of his appeal options.
[28] Be that as it may, it is submitted that the application ought to fail for another reason :
the failure of the applicant to satisfy the requirements for an interim or interlocutory interdict.
For example, the applicant purports to exercise a prima facie right to occupy or possess the
Property when he has no such right, as the Property belongs to his insolvent estate administered
by Mr Breytenbach, as the trustee. Also, there is no apprehension of irreparable harm that may
befall the applicant from the exercise of a statutory mandate by Mr Breytenbach under the IA
1936.
[29] The application lacks a factual or legal basis for the relief sought, especially with regard
to an error allegedly committed by the Master in rejecting his complaint . The application is
to an error allegedly committed by the Master in rejecting his complaint . The application is
significantly based on conjecture flavoured with sweeping statements devoid of any factum
23 Rule 4 of the Uniform Rules of this Court.
13
probans (probative fact).24 It is materially defective and does not identify precisely the relief
sought. Even where it attempts to identify the relief sought it does not provide in the affidavit
(which takes the place of pleadings and evidence in motion proceedings ) any particulars or
substance for the relief sought . For example, it appears that part of the relief sought by the
applicant is by way of a review. But the applicant has not clearly identified the impugned
administrative decision or conduct and the decision-maker involved, including the ground on
which the review is premised, be it from the Promotion of Access to Justice Act 3 of 2000
(‘PAJA’) or the principle of legality. Be that as it may, a review is not competent for the orders
or judgments of the High Court which ought to be varied through the appeal process, the
submission concludes.
Issues for determination
[30] Identification of the issues requiring determination in this matter is largely affected by
the condition of the craft of the founding papers. I have already lamented the absence of
precision in the relief sought and the evidence t o establish the facts to be determined. But the
situation is not without solution.
[31] From the applicant’s papers and the defences put forward by the third respondent the
following are the issues to be determined to dispose of this matter: (a) urgency of the
application; (b) service of the application and condonation; ( c) recognition of the UK
bankruptcy order in SA; (d) declaring that the first respondent (i.e. the Bank) authority under
the recognition order has expired; (e) suspension of the insolvency or bankruptcy process; (f)
compliance with the mortgage payment requirements; (g) interdict against the sale and transfer
of the Property ; (h) the Property as a primary residence; (i) i nterdict against further or
continuation of the administrati on of his insolvent estate; (j) directing the production of th e
24 Hiemstra and Gonin, Trilingual Legal Dictionary.
14
complete documents in the Master file; (k) u tilisation of the applicant’s confidential
information without proper authority; (l) reviewing and setting aside of unlawful appointments
etc; (m) res judicata; (n) mootness; (o) vagueness; (p) unenforceability of the relief ; (q)
impermissible attack on final court orders; (r) requirements for an interdict and (s) costs.
[32] The above issues are not necessarily all the issues raised by the parties in the papers
before the Court, but they are – in my view – dispositive of the matter. The issues will serve as
rubrics to guide the discussion below and, due to their nature , some of the issues will be
discussed jointly. I turn to the issues, next.
Urgency, service of the application and condonation
[33] The third respondent complains that the application as a document initiating motion or
application proceedings ought to have been served by the sheriff of this Court directly on the
respondents, as required by Rule 4 of the Uniform Rules. The applicant was served by hand on
the third respondent’s attorneys of record. I agree with the third respondent that there was non-
compliance in this regard. But with regard to the view I take on the matter, I will ‘dispense
with the forms and service provided for’ in the Uniform Rules, without implying that the matter
is indeed urgent, to which I turn.25
[34] The applicant says the matter is inherently urgent and that he would not obtain
substantial redress in due course. He has lost his home in the form of the Property. But there is
no explanation as to why the other terms of the relief should be adjudicated upon on an urgent
basis. On the other hand, the third respondent denies that the matter is urgent . The third
respondent points out to the fact that the applicant has already been evicted from the Property
in February 2026 and the Property has already been sold in April 2026. The real purpose of
this application, the respondent contends, is to delay the transfer of the Property. The third
this application, the respondent contends, is to delay the transfer of the Property. The third
25 Rule 6(2) of the Uniform Rules.
15
respondent says the application constitutes an abuse of process of the Court. The applicant has
not explained why no steps were taken prior to the Property being sold to approach the Court
on an urgent basis. The proverbial horse has bolted on the sale of the Property, the contention
continues. As for the other issues in the matter also indicated as requiring determination on an
urgent basis, the submissions on behalf of the third respondent are to the effect that they have
all been litigated to finality and the applicant has exhausted all of his options at the appellate
level without success.
[35] Considering the nature and substance of the relief sought by the applicant , I had no
doubt that none of the issues raised in the matter required urgent determination. In fact almost
all of the issues, including the very issue that sparked this application, namely, the sale of the
Property, have been already pronounced upon by the Court. Anything else that did not
previously form part of the issues determined by the Court is also not urgent and does not place
the applicant in a position where no substantial relief is impossible in due course. The matter
remained on my urgent court roll due to the submission on behalf of the third respondent that
it is geared towards impeding the sale of the Property in a manner that constitutes nothing but
an abuse of the process of the Court. The latter consideration, if established, weighed heavier
on the mind of the Court than to prolong the alleged abuse through an order striking the matter
off the urgent roll . Overall, the interests of justice appeared to me to favour this approach of
the Court.
Recognition of the UK bankruptcy order in SA and its implications (including authority of
the trustee and time-period of the insolvency process)
[36] The applicant, as stated above, was declared bankrupt in the UK in 2000 and in 2018
the UK bankruptcy was recognised in SA in terms of the Kollapen Judgment. The effect of the
the UK bankruptcy was recognised in SA in terms of the Kollapen Judgment. The effect of the
latter judgment or order was that: (a) the administration of the applicant’s insolvent estate ought
to be conducted as if the sequestration order had been granted against the applicant by a court
16
in SA; (b) the trustee is empowered to administer the applicant’s insolvent estate ‘in respect of
all his assets which are or may be found or are situated within [SA]’, and (c) the trustee obtained
‘all the rights, powers and title of a trustee ’ in terms of the IA 1936 for the administration of
the applicant’s insolvent estate.26
[37] The applicant claims that the respondents ought to be directed to suspend their reliance
on any alleged insolvency or bankruptcy process flowing from the Kollapen Judgment. In his
view, the Kollapen Judgment no longer has authority as the sequestration or insolvency process
has expired in terms of SA law in 2010, being a period of ten years from 2000 when the
applicant was declared bankrupt in the UK. The applicant is of the view that in SA insolvency
or sequestration is time bound. This is o bviously incorrect. It is the period for rehabilitation
which is time-bound, not the sequestration process. Rehabilitation of an insolvent would be
automatic by effluxion of a time-period of ten years from date of sequestration. This is provided
by section 127A of the IA 1936. 27 But, as I already stated, this is applicable to rehabilitation
and has no relevance to the rehabilitated person’s insolvent estate. The latter estate would
remain under the control of the trustee and the proceeds from all assets therein would be used
to meet creditors’ claims. The rehabilitated insolvent is free to accumulate assets in his or her
new estate or has, actually, been entitled to do so from the moment the sequestration order of
the insolvent estate was granted (or from the recognition order in case of the applicant in this
matter). This means that the trustee is still in 2026 e mpowered to deal with the asset s in the
applicant’s insolvent estate, including the Property. His authority remains valid.
Mortgage payments to the Bank were up to date
[38] The applicant’s case is also that when the recognition order was granted he was up to
[38] The applicant’s case is also that when the recognition order was granted he was up to
date with payments or obligations in respect of the mortgage agreement with the Bank and,
26 FA annexure ‘MB2’ Judgment by Kollapen J, CL 011-26 to 011-27.
27 Par [22] above.
17
ostensibly, the sequestration should not have been ordered . This caused him some pr ejudice.
This claim by the applicant does not appreciate that once the recognit ion order was made in
2018 the applicant’s estate in SA, even if it was solvent (i.e. with the value of the assets
exceeding the amount or estimate of liabilities), it would ex lege (by force (operation) of law;
as a matter of law; according to law)28 be treated as if it was insolvent.
Interdict against the sale and transfer of the Property, a primary residence
[39] The applicant also seeks an order that the sale and transfer of the Property be interdicted.
The sale of the Property had occurred by the time the application was launched. The transfer
of the Property is, indeed, still pending, but that does not alter the position. The Property
belongs to the insolvent estate and may be subjected to all processes necessary in terms of SA’s
insolvency laws. As for the fact that the Property may be a primary residence and, thus,
impacting the applicant’s right to housing, I find solace in the fact the applicant was evicted in
terms of an order of court. That court would have ordered the eviction whilst mindful of the
fact that the Property is a primary residence, if it indeed was, and that the applicant’s
constitutional right of access to adequate housing may be implicated. Eviction of the applicant
from the Property was first ordered in June 2022 terms of the Collis Judgment,29 even though
the applicant ultimately vacated the Property in February 2026. The Property has been part of
the applicant’s insolven t estate sin ce 2018 in terms of the Kollapen Judgment, 30 a fact
subsequently confirmed in the Collis Judgment. The proverbial horse is long gone ; it has
bolted.
Interdict against further or continuation of the administration of his insolvent estate
[40] The applicant’s interdict against further or continuation of the administration of his
[40] The applicant’s interdict against further or continuation of the administration of his
insolvent estat e has been addressed above. I am referring to its lack of merit. With the
28 Hiemstra and Gonin, Trilingual Legal Dictionary.
29 Par [12] above.
30 Par [10] above.
18
sequestration process in respect of the applicant’s insolvent estate still valid and authorised in
terms of the Kollapen Judgment - which has withstood challenges - there is no valid reason for
the interdict, whether interim or final.
[41] Mr Breytenbach, as trustee, is mandated to administer the insolvent estate and to deal
with all assets of the estate, including the Property. The latter empowerment includes the sale
and transfer of the Property.
Directing the Master to produce complete file of documents
[42] The relief sought by the applicant includes that the Master be directed to produce a
complete file of documents including claims, minutes and appointments. These documents,
according to the applicant, are apparently required to understand the basis upon which the
respondents conducted themselves. The Master has apparently not provided the applicant with
access to the relevant records. Equally, the Bank has refused to disclose its dealings with Mr
Breytenbach, as the trustee. But it is unclear what documents the applicant expect the
respondents to possess which are not already i n the public domain or his possession after the
tumultuous litigation he pursued. Also, it is unclear what right the applicant intends to exercise
which he has not by now done so. There is no merit in this claim as no document would
contradict the force of the Kollapen Judgment and other rulings made by the Court. The
applicant has failed to precisely indicate the relevance of the impugned documents to the urgent
relief sought in this matter.
Utilisation of confidential information without proper authority
[43] Another complaint by the applicant is that his confidential information held by the Bank
relating to his mortgage bond w as utilised without proper authority. The applicant has not
provided details or evidence of this. But the Bank as a party to the agreement would ordinarily
be entitled to disclose such information as it is required when enforcing or protecting its rights.
19
I d o not think that the applicant’s consent would be required for this purpose. Also, the
applicant has not stated why such information would be confidential to whoever it has been
divulged to without his consent.
Reviewing and setting aside of unlawful appointments etc
[44] The applicant also refers to a review and setting aside of unlawful appointments,
recognitions, meetings, or acts founded on unproven claims . He refers to the first creditors’
meeting held on 6 March 2019 and creditors’ claims submitted at the meeting or following the
meeting which were not properly proven or supported by admissible documentation. These
events occurred years ago and the applicant has not shown why they should be revisited.
[45] This complaint also related to the discovery and production of a ‘ full record’ of the
relevant documents or information . I agree with the third respondent that there is no factual
basis for this . The a pplicant attended the impugned creditors meetings and did not take any
steps to challenge the rulings made in those meetings. Th e length of time which has since
elapsed is un reasonably long to seek that those meetings be set aside, even if there was any
semblance of merit in all these.
Res judicata, mootness, vagueness and unenforceability of the relief sought
[46] The applicant seeks in terms of this application substantially the same relief as
previously sought and disposed of through orders of the court. The same issues or cause of
action have been already litigated to finality between the same parties. This is impermissible
in terms of the principle of res judicata.31 Also, some of the relief sought appear to be moot or
unenforceable. But overall there is general vagueness in the nature and extent of the relief
sought. I discuss these further below.
31 Par [25] above for a meaning of res judicata.
20
[47] Starting with the applicant’s claims regarding the validity of the recognition order
incorporated in the Kollapen Judgment. The latter was handed down on 18 April 2018. This is
over eight years ago. The applicant was unsuccessful in appealing the Kollapen Judgment.
Therefore, I agree with counsel for the third respondent that the challenge of the validity of the
recognition order is moot and academic. Otherwise, the incorrect claim of a ten-year validity
period has been dealt with above.32
[48] What I have just mentioned would equally apply to the applicant’s challenge or
assertion of invalidity of the appointment of Mr Breytenbach as the trustee of his insolvent
estate. His appointment was in March 2019 , jointly with Mr Hicken, and as sole trustee in
February 2022, after Mr Hicken resigned as trustee. Further, the Master dismissed the
applicant’s demand for the removal of the trustee in December last year. The dismissal appear
to have been on sound grounds.
[49] The declaration that the Property falls within the applicant’s insolvent estate was made
in June 2022 in terms of the Collis judgment confirmed by a Full Court of this Division on
appeal. I agree with the third respondent that this issue is now res judicata.
[50] The principle of res judicata ensures the finality in litigation and affords protection to
litigants against repetitive legal proceedings concerning substantively the same issues which
have already been decided. 33 For litigation cannot continue endlessly, but ought to reach
finality.34 The applicant remains bound by the decisions or orders of the court already made .
And this Court, as currently constituted, cannot overturn, vary or suspend those decisions or
orders. I also agree with the third respondent that the fact that the applicant did not disclose the
32 Pars [22]-[37] above.
33 Smith v Porritt and Others 2008 (6) SA 303 (SCA).
32 Pars [22]-[37] above.
33 Smith v Porritt and Others 2008 (6) SA 303 (SCA).
34 Visagie v Health Professions Council of South Africa And Others 2023 (2) SA 626 (GP) [14] per Potterill
J; Nestlé (South Africa) (Pty) Ltd v Mars Incorporated 2001 (4) SA 542 (SCA) [16].
21
decisions or orders granted against him amounts to an impermissible approach of the Court
with unclean hands.35
[51] The applicant’s main objective in this application is to regain title to and the right to
occupy the Property. He was evicted from the Property in February 2026 and the Property has
now been sold. All these flowed from valid court orders or processes. Therefore, the relief
sought by the applicant is moot and would have no practical effect. There cannot be legally
actionable ‘ongoing prejudice’ emanating from lawful execution of orders of the court.
[52] I agree with submissions on behalf of the third respondent that the applicant’s conduct
manifested by this application constitutes an impermissible attack of the orders of the court, at
this and appellate levels. It is also correct that this Court lacks jurisdiction to vary or suspend
the impugned decisions or orders. Therefore, the applicant ought to obey the orders until they
are set aside, despite his complaints or sentiments about them.36
Requirements for an interdict
[53] The relief sought by the applicant includes interdictory relief: (a) against the execution
process, sale and transfer of the Property; (b) against further or continuation of the
administration of his insolvent estate, pending some unspecified future step(s); ( c) for the
respondents to be directed to pause or suspend insolvency process involving the applicant, and
(d) for the Master to be d irected to produce a complete file of documents. I have already
mentioned that the first two constitute what is referred to as prohibitory interdict (i.e. an
interdict that requires that a person abstain s from ‘committing a threatened wrong or from
continuing an existing one ’) whilst the other two constitute m andatory interdict (i.e. order
issued by the court that requires a person to do some thing as a form of remedying a state of
35 Villa Crop Protection (Pty) Ltd v Bayer Intellectual Property GmbH 2024 (1) SA 331 (CC).
36 Department of Transport and Others v Tasima (Pty) Ltd 2017 (2) SA 622 (CC). See also section 165(5) of
the Constitution.
22
affairs which is wrongful, which the person is responsible for, or ordering a person to do
something which he or she ought to do to realise his or her rights).37 I have already ruled above
against the granting of the interdictory relief sought by the applicant. All that appears under
this part is stated merely for completeness of the discussion.
[54] The requirements for an interlocutory or interim interdict and a final interdict are
different. To succeed in obtaining a final interdict an applicant ought to satisfy three
requirements that, there is: (a) a clear right on the part of the applicant ; (b) an injury actually
committed or reasonably apprehended, and (c) an absence of other satisfactory remedy to the
applicant.38 Interlocutory interdict requires that the following be established: (a) a prima facie
(at first sight; on the face of it; at first blush )39 right; (b) a well-grounded apprehension of
irreparable harm; (c) a balance of convenience favouring the granting of interim relief, and (d)
the absence of other satisfactory remedy.40
[55] It is submitted that the interdict sought by the applicant appears to be interlocutory or
interim in nature, as it appears to be sought pending some unspecified future event or other
litigation to be instituted. The lack of spec ification of the future event may mean that the
applicant, actually, seeks interdictory relief with final effect. Be that as it may, I agree with
submissions on behalf of the third respondent that the applicant has not met the requirements
for either an interim or final interdict, as set out above.
[56] For example, the applicant purports to exercise a right to occupy or possess the Property
when he has no such right. There is no doubt in this regard as the Property belongs to the
applicant’s insolvent estate. But, there is nothing before the Court to establish such right on the
37 Erasmus: Superior Court Practice at RS 25, 2024, D6-3.
37 Erasmus: Superior Court Practice at RS 25, 2024, D6-3.
38 Erasmus: Superior Court Practice at RS 27, 2025, D6-18 and RS 28, 2025, D6-19 to RS 28, 2025, D6-24.
39 Hiemstra and Gonin, Trilingual Legal Dictionary.
40 Erasmus: Superior Court Practice RS 28, 2025, D6-24 to RS 28, 2025, D6-25 and, further, at RS 28, 2025,
D6-25 to RS 28, 2025, D6-33.
23
part of the applicant, be it a clear right (required for a final interdict) or a prima facie right (for
an interim interdict). The applicant has already been evicted from the Property and the Property
has been sold. The same applies to the suspension of the administration of the applicant’s
insolvent estate or the insolvency process, which would only delay the finalisation of the estate
and not benefit the general body of creditors, anxiously awaiting payment.
[57] Therefore, none of the orders sought by the applicant for interdictory relief has satisfied
the applicable requirements. As already indicated, the impugned relief is not only dealt with
under this part, but was traversed above.
Conclusion and costs
[58] On the basis of what is stated above, the application would fail. It simply lacks a factual
or legal basis for the relief sought. There was no valid basis for the application to be launched
considering the litigation history of the matter and the advanced stage in the administration of
the applicant’s insolvent estate. It is a clear abuse of process of this Court.
[59] The applicant may have been encouraged in his pursuit of this pointless litigation by
the fact that he does not run the risk of payment of a cost order, since he is an insolvent. But,
there is no such insulation against costs orders, since any such order would have to be satisfied
from the applicant’s new estate he started building immediately after the Kollapen Judgment.
It doesn’t really matter the size of such new estate. Therefore, I will mark the disapproval of
the Court of th is vexatious and mala fide litigation by ordering that the applicant should pay
the costs of this application at an attorney and client scale. But, I do not agree that such c osts
should include the costs of two counsel. There was no basis to involve two counsel considering
the facts of this matter, in particular the participation of the applicant in person or without legal
representation.
24
Order
[60] In the premises, I make the order, that:
(1) the application is dismissed, and
(2) the applicant is liable to pay the costs of this application on attorney and client
scale.
___________________________
Khashane La M. Manamela
Judge of the High Court
Dates of Hearing : 5 and 8 May 2026
Date of Judgment : 22 June 2026
Appearances:
For the applicant : Mr CM Ellison (in person)
For the third respondent : Mr GJ Lötter
Instructed by : Serfontein, Viljoen & Swart Inc,
Brooklyn, Pretoria
For the first, second and fourth : No appearance
respondents
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