About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: North Gauteng High Court, Pretoria
You are here:
SAFLII
>>
Databases
>>
South Africa: North Gauteng High Court, Pretoria
>>
2026
>>
[2026] ZAGPPHC 949
|
Noteup
|
LawCite
Ex Parte: Van Antwerp; Ex Parte: Van Der Westhuizen; Ex Parte: Snyman; Ex Parte: Vermaak (067434/2020) [2026] ZAGPPHC 949 (20 August 2026)
Download original files
PDF format
RTF format
HIGH
COURT OF SOUTH AFRICA
(GAUTENG
DIVISION, PRETORIA)
CASE NO: 067434/2020
(1)
REPORTABLE: YES
(2)
OF INTEREST TO OTHER JUDGES: YES
(3)
REVISED.
DATE:
20 AUGUST 2026
SIGNATURE
In
the matter between:
EX
PARTE
:
G VAN ANTWERP
Applicant
CASE
NO: 076862/2026
EX
PARTE
:
A J VAN DER
WESTHUIZEN
Applicant
CASE
NO: 067567/2026
EX
PARTE
:
P J SNYMAN
Applicant
CASE
NO: 082579/2026
EX
PARTE
: Q and P M
VERMAAK
Applicants
Summary:
Insolvency Law – voluntary surrender – in the Gauteng
Division it is the practice that applicants for the acceptance
of the
voluntary surrender of their estates indicate the availability of a
dividend of 20c/Rand for concurrent creditors, after
the costs of the
application and the administration of the estate have been accounted
for. Upon a consideration of a number of
matters enrolled on the
insolvency court roll of the Pretoria seat of this Division, it
appeared that a practice has developed
where parties only disclose so
much of their assets as to enable them to achieve the minimum
dividend threshold, alleging that
this represented an advantage to
creditors. The non-disclosure of assets and the contrivance of
evidence to reach a targeted
dividend, are unlawful and improper.
Applications for the acceptance of the voluntary surrender of estates
wherein a court cannot
be satisfied that dividend calculations have
not been manipulated, should be refused.
ORDER
The applications for
voluntary surrender of the applicants’ respective estates in
matters
Ex parte G Van Antwerp
Case No. 067434/2026,
Ex
parte
A J Van der Westhuizen
Case No, 076862/2026,
Ex
parte P J Snyman
Case No. 067567/2026 and
Ex parte Q and P M
Vermaak
Case No. 082579/2026, are refused.
JUDGMENT
The
matters under consideration were heard in open court and the judgment
was prepared and authored by the judge whose name is reflected
herein
and was handed down electronically by circulation to the parties’
legal representatives by email and by uploading
it to the electronic
file of this matter on Caselines. The date of handing-down is
deemed to be 20 August 2026.
DAVIS,
J
Introduction
[1]
Despite
“debtor-friendly” voluntary bankruptcy systems operating
in some foreign jurisdictions and despite occasional
calls for a
change in the approach to applications for the surrender of estates
in South Africa, our law is still that insolvency
proceedings are
creditor driven
[1]
. This means
that the invocation of the mechanisms provided for in the Insolvency
Act
[2]
(the Act), must be to the
advantage of the general body of concurrent creditors of a debtor
[3]
.
[2]
The
practice in this Division is that, in order to indicate to a court
that there would be a sufficient pecuniary benefit for creditors
in
applications for the voluntary surrender of an applicant’s
estate, a dividend of no less than 20c/Rand is expected
[4]
.
[3]
In
Ex
parte Slabbert
[5]
(
Slabbert)
,
this court has pointed out that experience has shown that a
surprising number of applicants in applications for the acceptance
of
the voluntary surrender of their respective estates, irrespective of
where they may reside within the area of the Court’s
jurisdiction and irrespective of the multiple permutations resulting
from their differing circumstances, the differences of their
assets,
the number and extent of their creditors, the dividends are almost
without fail 20ⅽ – 25ⅽ/Rand.
[4]
In
Slabbert
the improbability of these figures being correct, raised concerns and
the three applications in that matter were all refused. In
those
matters the applicants and/or the valuator used by them, only valued
certain assets, erroneously claiming that other (undisclosed)
assets
may validly be excluded.
[5]
The creation
of insolvency courts in both seats of this Division resulted therein
that multiple applications enrolled by the same
attorney, often come
to be considered by the same judge. While individual applications
might on the face of each of them appear
to be in order, once
multiple applications are read jointly, patterns emerge which
indicate a manipulation of the figures presented
to court. In the
matters under consideration in this judgment, this was not done
by claiming exclusion of certain assets
(as was done in
Slabbert
),
but simply by selectively disclosing only sufficient of their assets
to reach a target dividend.
The
matters in question
[6]
In the third
week of term 3 of 2026, I heard 84 matters in the insolvency court of
the Pretoria seat of the Gauteng Division. Among
those matters, were
the four applications for the surrender of estates which form the
subject-matter of this judgment. They are:
Ex
parte G Van Antwerp
Case No 067434/2026,
Ex
parte
A
J Van der Westhuizen
Case No 076862/2026,
Ex
parte
P
J Snyman
Case No 067567/2026 and in the application for the surrender of their
joint estate,
Ex
parte
Q
and P M Vermaak
Case No 082579/2026.
[7]
Before I deal
with the consideration of these applications individually, it is
apposite to first set out the legal requirements
that the respective
applicants had to meet, before indicating indicate why I found that
the applicants’ applications weren’t
up to scratch.
The
applicable law
[8]
Section
3(1) of the Act provides that “…
an
insolvent debtor … may petition the court for the acceptance
of the surrender of the debtor’s estate for the benefit
of his
creditor
”.
For “petition” read “apply to”.
[6]
[9]
Section 4 of the Act prescribes a
number of formalities applicable to applications for voluntary
surrender. These pertain
to prior notice of the application,
both by publication and registered mail to creditors as well as the
availability for inspection
of the applicant’s statement of
affairs at the Master and, where applicable, the local Magistrates
office.
[10]
Section 6(1) of the Act, amongst
other issues, prescribe that the voluntary surrender of an
applicant’s estate can only be
accepted once the court is
satisfied that the estate is factually insolvent and that the debtor
owns “
realisable property of a
sufficient value to defray all costs of sequestration … and
that it will be to the advantage of
creditors if his estate is
sequestrated
…”.
[11]
As
already indicated, in this Division, the “advantage to
creditors” has been taken to mean a dividend, after costs,
of
no less than 20ⅽ/Rand for the general body of creditors
[7]
.
This is despite the fact that “…
the
troubled economic times might engender sympathy for debtors whose
financial burden has become too much to bear…”
[8]
.
[12]
In
addition, although the requirements and formalities for applications
for voluntary surrender have been statutorily prescribed,
the
applications remain
ex
parte
in nature. As such, each applicant must display
uberrima
fides
,
that is utmost faith to the Court. In
Ex
parte Arntzen
[9]
the court has emphasized that in applications of this nature, the
requirement of full disclosure to be made by applicants, is even
more
stringent as the relief sought impacts on the rights of third
parties, namely the estate’s creditors.
[13]
In
Ex
parte Steenberg & other related cases
[10]
the court expressed the view that often valuators give an inflated
value to assets “
for
insolvency purposes … to enable the debtor … to
surmount the difficulty of showing advantage to creditors
”.
To ward against this, full and proper description of the assets must
be given, so much so that the court can be satisfied
that the values
reflected are true and realistic.
[14]
The
existence of a free residue, sufficient to pay all the costs of
sequestration, has been described as an “indispensable
condition precedent” to a court’s acceptance of a
voluntary surrender
[11]
.
[15]
In
compiling a statement of the applicant’s affairs as required by
section 4(3) all assets must be included and no assets
should be
omitted merely because they are hypothecated or regarded as
worthless
[12]
.
[16]
The
reason why the statement of affairs must be furnished with meticulous
accuracy “…
is
to afford each of the creditors information concerning the debtor’s
property and liabilities in order to enable such creditors
to
determine the attitude [they] intend to adopt towards the
application
”.
[13]
[17]
Once
full disclosure has been made of the applicant’s estate, not
only are the creditors of the debtor/insolvent in a position
to
determine their response to the proposed voluntary surrender, but the
Court is then also in a position to make a determination
as to
whether the acceptance of the surrender would carry with it a
sufficient advantage for the general body of creditors
[14]
.
[18]
In
order to assist with and provide a measure of proof of the advantage
and possible dividends, the assets disclosed must be inspected
by a
qualified valuator in the presence of the applicant and a sworn
valuation must be provided, indicating the realisable value
of each
item of the assets, both movable and immovable
[15]
.
[19]
Against the backdrop of these
requirements, I shall now deal with the applications under
consideration and indicate thereafter why
I was not satisfied that
the substantive requirement of advantage to creditors had been met.
Ex
parte G Van Antwerp
Case
No 067434/2026 (
Van
Antwerp
)
[20]
The applicant in this matter is a
self-employed skills developer from Edenvale, Gauteng. He has
disclosed creditors of R106 288.91.
The assets he disclosed
consist of a three-seater aluminium couch, two typists chairs, a
wooden wardrobe and two second-hand “quad
bikes”. These
assets were valued by a valuator at the rounded off figure of
R52 000.00. Based on this, the dividend,
after the attorneys
fees of R10 500.00 had been taken into account, was calculated
at 25c/Rand.
[21]
No vehicle was listed as an
asset, but the applicant listed vehicle insurance as one of his
monthly expenses.
Ex
parte E P Van der Westhuizen
Case No
076862/2026 (
Van
der Westhuizen
)
[22]
In this matter
the applicant is a self-employed debt collector from Krugersdorp,
Gauteng. He disclosed creditors of R101 446.27.
Household items,
ranging from an air fryer to a “gaming steering wheel”,
were disclosed and valued at R50 000.00.
The attorneys fees were
lower in this instance, being R10 000.00, resulting in a
calculated dividend of 23c/Rand.
[23]
Again, as in
Van
Antwerp
,
no vehicle was disclosed, despite the applicant claiming the payment
of vehicle insurance as an expense.
Ex
parte P J Snyman
Case
No 067567/2026 (
Snyman
)
[24]
In this matter
the applicant is a self-employed contractor from Magalieskruin in
Pretoria, Gauteng. The applicant disclosed creditors
of R101 209.46.
The disclosed assets consisted of twelve household items, valued at
R50 000.00. After a reduction of
the attorneys fees to
R8 500.00, the calculated dividend was 24c/Rand.
[25]
Again, no
vehicle was disclosed.
Ex
parte
Q
and P M Vermaak
Case No 082579/2026 (
Vermaak)
[26]
The applicants
in this matter are married to each other. Mr Vermaak is a testing
technician and his wife is unemployed, having been
retrenched three
years ago in 2023. They are from Boksburg, Gauteng. They have
disclosed creditors in the amount of R82 107.62.
[27]
This time
round, a vehicle was indeed disclosed but featured as the sole asset.
It was a sixteen-year-old VW in a fair/poor condition,
valued at
R40 000.00.
[28]
After having
taken attorneys fees, which now were listed as R8 000.00, into
account, a dividend of 22c/Rand was calculated.
Evaluation
[29]
It is
immediately apparent that the applications feature remarkable
similarities. The applicants in all four applications were
represented by the same attorneys and all used the same valuator. All
the disclosed assets consisted only of movables and were valued
in
rounded-off figures. While this might not alone be significant, the
asset values were all close to each other, being R52 000.00,
R50 000.00, R50 000.00 and R40 000.00 respectively.
The value of creditors disclosed in the first three applications
were
similarly very close to each other, being some R106 000.00 in
the matter of
Van
Antwerp
and some R101 00.00 in both
Van
der Westhuizen
and
Snyman
.
In
Vermaak
the disclosed creditors were 20% less, but by the same measure, so
was the value of the sole asset.
[30]
The most
striking similarity is that, despite the numerous permutations which
must surely accompany each set of circumstances, the
applicants all
managed to disclose dividends which are a few cents apart and which
are all marginally above that which would supposedly
satisfy a court.
[31]
The risk for
creditors when the extent of their claims are under-disclosed or
underestimated, is that the eventual actual dividend
ends up being
far less than that portrayed to the court at the time of voluntary
surrender. This is exactly what happened in the
insolvent estates of
a number of other clients of the same attorneys, which also featured
in the same week on the same insolvency
court roll. I shall give the
examples hereof hereunder.
[32]
In an
application for rehabilitation in
Ex
parte J. J. P and S Prinsloo
Case No 023 303/2026, the creation of an insolvent estate was by
way of a sequestration order obtained by a single creditor.
In
the sequestration application, it was alleged that the insolvent owed
a company, Workcraft Solution (Pty) Ltd some R80 000.00.
Despite allegations that sequestration would be to the advantage of
creditors, the insolvent disclosed in his subsequent application
for
rehabilitation, that he had no assets at the time of sequestration.
Unsurprisingly, the creditor did not prove a claim.
There having been
insufficient funds to cover the costs of administration of the
estate, a contribution was levied, which the insolvent
had paid with
a view to his rehabilitation. More surprising than the fact that the
sequestrating creditor had not proven a claim,
was that the
sequestrating creditor was represented by the same attorneys who
represented the applicant in the application for
rehabilitation. This
was the same set of attorneys who represented the applicants in all
the matters under consideration in this
judgment.
[33]
In a similar
application for rehabilitation in
Ex
parte W.A Maree
Case No 093017/2026, yet another single creditor had obtained a
sequestration order less than two years prior to the rehabilitation
application. The sequestrating creditor was a close corporation
of which the insolvent was a member, so there should not
have been
any doubt about the extent of the insolvent’s estate. In
the rehabilitation application, the insolvent disclosed
that, at the
date of sequestration he had no assts. Again, unsurprising in
these circumstances, no claims were proven.
The same attorneys
represented both the sequestrating creditor and the insolvent.
They are the same attorneys as in the present
matters.
[34]
In yet another
application for rehabilitation in
Ex
parte F. J. Bzuidenhout
Case No 122112/2026 the insolvent, in his prior application for
voluntary surrender, disclosed creditors of some R157 000.00
and
assets sufficient to realise a 20c/Rand dividend. This was
clearly an understatement of liabilities as claims exceeding
R247 000.00 were proven, which reduced the dividend to about
13c/Rand. The understatement was insufficiently explained
when
I granted the insolvent the opportunity to supplement his papers.
Yet again, the same set of attorneys featured.
[35]
The fourth
example appeared in the rehabilitation application of
Ex
parte A. J Serfontein
Case no 100390/2026. In that matter, an understatement of
creditors of R119 000.00 resulted in claims being proven in
excess of R397 000.000. Once again, the understatement was
insufficiently explained in a supplementary affidavit.
The
result was, however, that the estimated dividend of 20c/Rand in the
prior voluntary surrender, was reduced to about 6c/Rand
in the course
of administration of the estate.
[36]
In
all the above applications, and after the attorneys had been
furnished an opportunity to address the court’s concerns
regarding possible conflicts of interest in representing
sequestrating creditors and thereafter representing the insolvent in
the
same respective estates, separate ex tempore judgments had been
delivered. It is not necessary to go into the merits of those matters
or the respective judgments beyond what has already been stated
above, save to underline that the lack of acceptable dividends
illustrate the point made earlier about the risk of a lack of a
proper benefit for creditors. This court has also had other occasions
to frown upon the understatement of liabilities in applications for
the surrender of estates
[16]
.
Conclusion
[37]
In
Van
Antwerp, Van der Westhuizen
and
Snyman
,
I find it improbable that a person would pay for vehicle insurance,
but have no vehicle to disclose in his estate, even if such
a vehicle
is subject to a credit agreement. Similarly, I find it improbable
that
Van
Antwerp
and
Snyman
would only have the limited number of household items to discover. I
find it even more improbable that Mr and Mrs Vermaak would
have, as
the sole asset in their joint estate, an almost dilapidated vehicle.
If any of these applicants have excluded household
assets or other
items because they (or their attorney or the valuator) believed that
those assets may be shielded from execution,
they have not said so
and any such non-disclosure would in any event fall foul of
Slabbert.
[38]
I find it much
more probable that the respective disclosures and non-disclosures of
assets have been done in order to manipulate
the calculation of a
dividend which would satisfy the requirements already referred to
above. It is not possible to determine how
much of each estate has
not been disclosed to the court, but from the patterns which have
emerged, this court cannot reasonably
be satisfied that a full and
frank disclosure had been made or that the requirements of section
6(1) of the Act had been satisfied
in each of the applications.
Order
[39]
I therefore
make the following order:
The applications for
voluntary surrender of the applicants’ estates in matters
Ex
parte G van Antwerp
Case No. 067434/2026,
Ex parte A J van der
Westhuizen
Case No. 076862/2026,
Ex parte P J Snyman
Case
No. 067567/2026 and
Ex parte Q and P M Vermaak
Case No.
082579/2026 are refused.
N
DAVIS
Judge
of the High Court
Gauteng
Division, Pretoria
Date
of Hearing: 04 August 2026
Judgment
delivered: 20 August 2026
APPEARANCES:
For the
Applicants:
Adv
R
P Loibner
Attorney for the
Applicants:
Herman Esterhuizen
Smalman Attorneys,
Pretoria.
[1]
See:
Acta Unversitatis Danubis,
The
Meaning of Advantage to Creditors under Voluntary, Compulsory and
Friendly Sequestration in South Africa
,
AUDI, Vol 15 No 2/2019 pp 62-83, Roestoff & Boraine,
Body
Corporate Palm Lane v Masinge: Discretion and powers of the court in
applications for sequestration
2013
De Jure
208
and
Boraine, Evans, Roestoff & Steyn,
The
Pro-Creditor Approach in South African Insolvency Law and the
Possible Impact of the Constitution
(2015) 3 NIBLeJ 5
[2]
24 of 1936
[3]
Section 2 of the Act and see:
Meskin
& Co v Friedman
1948 (2) SA 555 (W).
[4]
Ex
parte Ogunlaja
[2011] JOL 27029
(GNP) at par 9 per Bertelsmann J.
[5]
(099263/2024) [2025] ZAGPPHC 286;
[2025] 3 All SA 264
(GP) (20 March
2025).
[6]
Section 1 of the Petition Proceedings Replacement Act 35 of 1976.
[7]
See the various permutations of the Practice Directives and Practice
manuals over the years since
Ex
parte Ogunlaja
referred to in footnote 4 above.
[8]
Ogunlaja
at par 9 again.
[9]
2013 (1) SA 49
(KZN). See also in general
Schlezinger
v Schlezinger
1979 (4) SA 342 (W).
[10]
1996 (3) SA 822 (W).
[11]
Ex
parte Vane
1956 (4) SA 616
(O),
Ex
parte Swanepoel
1975 (2) SA 367
(O) and
Ex
parte Matthysen et uxor (First Rand Bank intervening)
2003 (2) SA 308
(T) at 311J – 312G.
[12]
Ex
parte Klopper
1965
(2) SA 107 (O).
[13]
Meskin,
Insolvency
Law in South Africa
at par 7.3.2 on 3-8 (3) and
Ex
parte Nel
(
supra
)
and
Ex
parte Van Zyl
1963 (2) SA 311 (G).
[14]
See:
Stratford
and Others v Investec Bank Ltd
2015 (3) SA 1
(CC) at par [45] and
Meskin
& Co Ltd v Friedman
1948 (2) SA 555 (W).
[15]
Ex
parte Erasmus
2015 (1) SA 540
(GP) per Bertelsmann J, laying down the procedure in
this regard in this Division.
[16]
Ex
parte Le Roux
(016174/2026) ZAGPPHC (6 May 2026), relying on
Ex
parte McBride
(003235/2024) [2024] ZAGOPGC 1166 (15 August 2024.)