THE HIGH COURT OF SOUTH AFRICA
(NORTHERN CAPE DIVISION, KIMBERLEY)
Reportable/Not Reportable
Case no: 2025-134472
In the matter between:
ACCESS BANK (SOUTH AFRICA) LIMITED Applicant
and
RICHARD JOHANNES DE VOS N.O. (SENIOR) First Respondent
RICHARD JOHANNES DE VOS N.O. (JUNIOR) Second Respondent
(The Respondents are cited in their capacities as the trustees for the time being of the
De Vos Boerdery Trust [Trust No: IT 9082/97].)
Neutral citation: Access Bank (South Africa) Limited v Richard Johannes De Vos
N.O. (Senior) and Another (Case no 2025-134472).
Coram: Tyuthuza AJ.
Heard: 06 March 2026.
Delivered: 08 September 2026. This judgment was handed down electronically by
circulation to the parties/their legal representatives by email and by uploading it to the
electronic file of this matter on Caselines.
Summary: Provisional sequestration – Insolvency Act 24 of 1936 – requirements for
provisional sequestration to be established prima facie – applicant’s locus standi and
liquidated claim established – trust bound as surety and co-principal debtor – principal
debtor subject to business rescue – statutory moratorium does not afford surety a
defence to enforcement of its obligations – factual insolvency – liability under
2
suretyship to be taken into account in determining solvency – ordinary right of recourse
against principal debtor had not accrued in absence of payment by surety – no reliable
evidence of the value of any claim or remedy available to Trust against principal debtor
– advantage to creditors – reasonable prospect of pecuniary benefit – provisional
sequestration granted.
ORDER
1. The estate of the De Vos Boerdery Trust (Trust No: IT 9082/97) is placed under
provisional sequestration and is placed in the hands of the Master of the High
Court, Kimberley.
2. A rule nisi is hereby issued calling upon all interested parties to appear and show
cause, if any, to this Court on the 16th day of October 2026 at 09:30 or so soon
thereafter as the matter may be heard, why the estate of the De Vos Boerdery
Trust should not be placed under final sequestration and why the costs of this
application, on the attorney and client scale, should not be costs in the
sequestration.
3. This order operates with immediate effect as a provisional order for the
sequestration of the De Vos Boerdery Trust.
4. Service of this order shall be effected in the following manner:
4.1. on the respondents at Farm Quaggasfontein, Terewa Road, Colesberg,
9795;
4.2. on the employees of the De Vos Boerdery Trust, if any;
4.3. on every registered address of the trade unions that represent
employees of the Trust, if any;
4.4. on the South African Revenue Service; and
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4.5. on the Master of the High Court, Kimberley.
JUDGMENT
Tyuthuza AJ
Introduction
[1] The applicant is Access Bank (South Africa) Limited (“Access Bank”), a
company with limited liability, duly registered and incorporated as such in terms of the
company laws of the Republic of South Africa. Its head office is situated in Sandton,
Gauteng Province. The first respondent is Richard Johannes De Vos N.O. (Senior),
who ordinarily resides at Farm Quaggasfontein in Colesberg. The second respondent
is Richard Johannes De Vos N.O. (Junior), who also ordinarily resides at Farm
Quaggasfontein in Colesberg. In terms of the signature page of the Unlimited
Suretyship, the Trust’s address and domicilium citandi et executandi is also Farm
Quaggasfontein. The first and second respondents are cited in their capacities as the
trustees for the time being of the De Vos Boerdery Trust (“the Trust”).
[2] The applicant (Access Bank) seeks, inter alia, an order placing the estate of the
Trust under provisional sequestration in terms of the Insolvency Act 24 of 1936 (“the
Insolvency Act”) and placing the estate in the hands of the Master of the High Court,
Kimberley (“the Master”). It further seeks an order issuing a rule nisi calling upon all
persons interested to show cause, if any, on a specified date and at a specified time,
why the estate of the Trust should not be finally sequestrated and placed in the hands
of the Master, and why the costs of this application, on the attorney and client scale,
should not be costs in the sequestration. The applicant further seeks an order that the
provisional sequestration order operate with immediate effect.
Background
4
[3] On 6 November 2019, De Vos Landgoed (Pty) Ltd (“De Vos Landgoed”), whose
registered address is also Farm Quaggasfontein, Colesberg , concluded a Facility
Letter with the applicant in terms of which it was provided the following facilities: (a) a
Working Capital Facility with an initial limit of R1 500 000.00 which was subsequently
increased to R5 000 000.00 and (b) a Term Loan Facility of R 18 800 000.00.
[4] In or around 6 December 2019, pursuant to clause 2.5 of the Facility Letter, De
Vos Landgoed and the applicant concluded a Term Loan Facility Agreement (Term
Loan Facility Agreement), the purpose of which was to record the full terms and
conditions of the Term Loan Facility. Around 8 December 2019, the Trust signed a
Limited Guarantee, wherein it inter alia guaranteed to and in favour of the applicant
the due and punctual payment of the Facility Letter and Term Loan Facility Agreement
limited to R22 million.
[5] On 1 August 2022, the Trust executed an unlimited deed of suretyship in favour
of the applicant; in terms thereof, the Trust guaranteed and bound itself jointly and
severally as surety and co-principal debtor with De Vos Landgoed for the due and
punctual payment and discharge of all obligations and liabilities, actual or contingent,
present or future, owed by De Vos Landgoed to Access Bank. This includes, but is not
limited to, obligations arising from loans, negotiable instruments, credit agreements,
guarantees, damages, compensation, and any indebtedness acquired by cession or
assignment. On 4 August 2022, De Vos Landgoed and the applicant concluded a
Medium-Pre-Term Agreement/Agreement of Loan and Acknowledgement of Debt
which replaced the Term Loan Facility.
[6] It is averred in the founding affidavit that the Suretyship is unlimited in amount
and covers all costs of recovery, including attorney and client costs and collection
commission. It is further averred that the Unlimited Suretyship may be called upon in
commission. It is further averred that the Unlimited Suretyship may be called upon in
circumstances where the Debtor fails to pay or perform any of its obligations, whether
such failure is due to insolvency, liquidation, death, insanity, incapacity or any other
cause. The Suretyship may also be enforced where any of the Debtor’s liabilities t o
the Bank become due and payable, irrespective of whether the Bank has granted the
Debtor any indulgence, extension or compromise. It is further averred that, where any
payment made by the Surety or on behalf of the Debtor is set aside under insolvency
5
laws or by court order, or where any security is set aside or released, the Surety’s
liability is revived. The Suretyship remains in force notwithstanding the liquidation,
judicial management or sequestration of the Debtor or any other surety, or any
compromise or agreement with creditors. The applicant further avers that it is not
required to exhaust its remedies against the Debtor before proceeding against the
Surety, as the Surety has renounced the benefits of excussion and division. Finally, it
is averred that a certificate signed by any manager or accountant of the applicant,
stating the amount owing by the Debtor, that such amount is due and payable, and the
applicable interest rate, constitutes prima facie proof of the amount due by the Surety.
[7] On 26 August 2024, the applicant instructed its attorneys to dispatch two letters
of demand to De Vos Landgoed, the first in terms of the Term Loan Facility Agreement
and the second in terms of the Working Capital Facility. De Vos Landgoed failed and/or
neglected to make payment as demanded, and no response was received by the
applicant’s representatives. On 3 September 2024, the applicant addressed a further
letter of demand to De Vos Landgoed in terms of section 345 of the Companies Act 61
of 1973. On 11 September 2024, the applicant addressed a letter of demand to the
Trust in terms of the Limited Guarantee. On 27 September 2024, De Vos Landgoed
resolved to commence business rescue proceedings, following which the applicant
submitted a claim to the business rescue practitioners in respect of the facilities
agreements in the amount of R23 995 001.98. On 28 July 2025, a further letter of
demand was sent to the Trust in terms of the Unlimited Suretyship. The Trust failed to
make payment pursuant to the demands. The applicant relies on the Trust’s failure to
satisfy these demands as supporting its contention that the Trust does not have
sufficient funds to discharge its indebtedness in full and is, in fact, insolvent.
sufficient funds to discharge its indebtedness in full and is, in fact, insolvent.
Applicant’s case:
[8] The applicant seeks the provisional sequestration of the estate of the De Vos
Boerdery Trust. It relies on the Trust’s alleged indebtedness arising from the Limited
Guarantee and the Unlimited Suretyship executed by the Trust in respect of the
indebtedness of De Vos Landgoed (Pty) Ltd to the applicant.
6
[9] The applicant contends that it is the lawful successor to Grobank Limited and
therefore the creditor under the Facilities and Guarantee originally concluded with
Grobank. It accordingly relies on its alleged succession to Grobank’s rights and on the
Unlimited Suretyship executed by the Trust in favour of Access Bank.
[10] The applicant contends that the Trust is indebted to it in an amount exceeding
R27 million, comprising the liability under the Unlimited Suretyship and the Limited
Guarantee. It relies, inter alia, on the demands made upon the Trust and the
certificates of balance as proof of the indebtedness.
[11] The applicant contends that the Trust is factually insolvent. Its case is that, once
the amount allegedly owing to Access Bank is taken into account, the Trust’s liabilities
exceed its assets.
[12] The applicant further contends that sequestration will be to the advantage of
creditors. It relies on the Trust’s assets and submits that the appointment of a trustee
would enable an investigation into the Trust’s affairs and the recovery or realisation of
assets for the benefit of creditors.
[13] The applicant accordingly contends that it has established the requirements for
provisional sequestration, including that it has locus standi as a creditor, that the Trust
is insolvent and that sequestration will be to the advantage of creditors.
Respondents’ case:
[14] The respondents oppose the application and contend that the applicant has
failed to establish the jurisdictional and statutory requirements for provisional
sequestration. They submit that the application is premature, defective and an abuse
of process. They further contend that the applicant has failed to establish locus standi,
in that it has not proved that it lawfully succeeded to the rights of Grobank.
[15] The respondents submit that the applicant has not established that it is the
holder of an enforceable claim against the Trust. They contend that the Facilities and
holder of an enforceable claim against the Trust. They contend that the Facilities and
the Limited Guarantee were concluded in favour of Grobank and that the alleged
7
transfer of Grobank’s rights to the applicant under section 54 of the Banks Act 94 of
1990 has not been proved. In this regard, they rely on the absence from the papers
of, inter alia, a transfer scheme, ministerial approval, Gazette publication, deed of
cession or confirmatory affidavit evidencing the alleged transfer.
[16] The respondents further submit that the Unlimited Suretyship is accessory in
nature and that the applicant must accordingly establish a valid, due and enforceable
principal indebtedness of De Vos Landgoed. They rely on the ongoing business rescue
proceedings relating to De Vos Landgoed, including the statutory moratorium under
section 133 of the Companies Act 71 of 2008 (“Companies Act”) and the pending
application in terms of section 153(7) of the Companies Act . They contend that, until
those proceedings have been determined, the principal indebtedness is not presently
enforceable and cannot found liability under the Unlimited Suretyship.
[17] The respondents further submit that the applicant participated in the business
rescue proceedings, lodged its claim with the business rescue practitioners and voted
against the proposed business rescue plan, and opposed the section 153(7)
application. They contend that the applicant cannot use sequestration proceedings to
obtain an advantage in respect of a debt whose enforceability is the subject of the
business rescue process and that its conduct amounts to an abuse of the insolvency
process.
[18] As to insolvency, the respondents contend that the Trust is not factually
insolvent. They rely on the Trust’s audited financial statements and submit that these
reflect assets exceeding its liabilities, resulting in a positive net asset value. Their case
is that the applicant’s allegation of insolvency depends substantially upon treating its
disputed claim as a liability of the Trust.
[19] The respondents further submit that the applicant has failed to establish that
[19] The respondents further submit that the applicant has failed to establish that
sequestration will be to the advantage of creditors and that the allegations relied upon
in this regard are speculative. They also contend that the applicant impermissibly
introduced new matter in its replying affidavit in an attempt to cure deficiencies in its
founding papers and that such matter should be disregarded.
8
[20] The respondents accordingly submit that the applicant has failed to establish
an enforceable claim, the insolvency of the Trust and that sequestration would be to
the advantage of creditors, and that the application should therefore be dismissed.
Law:
[21] In terms of section 9(1) of the Insolvency Act, a creditor (or his agent) who has
a liquidated claim for not less than fifty pounds against a debtor who has committed
an act of insolvency or is insolvent may petition the court for the sequestration of the
estate of the debtor. In Kleynhans v Van der Westhuizen NO
1, the threshold of fifty
pounds was treated as R100. 2 This approach was subsequently followed by the
Supreme Court of Appeal in Osborne v Cockin NO 2018 JDR 1298 (SCA). Section
9(2) of the Insolvency Act further provides that a liquidated claim which has accrued
but is not yet due on the date of the hearing of the petition shall be reckoned as a
liquidated claim for purposes of subsection (1).
[22] In Osborne v Cockin NO
3, the Supreme Court of Appeal observed as follows:
‘Alkema J pointed out that the predominant purpose of a sequestration of an estate is
the bona fide achievement of sequestration, not the resolution of a dispute over a debt.
This is trite: see Investec Bank Ltd v Lewis 2002 (2) SA 111 (C). Section 9(1) of the
Insolvency Act provides that a creditor who has a liquidated claim for not less than
R100 against a debtor who has committed an act of insolvency, or is insolvent, may
apply to court for the sequestration of the estate of the debtor. But Osborne showed
neither that he had a claim against the Cockin Trust, nor that it was liquidated. To the
extent that he made allegations of fact (rather than speculated on what must have
happened to his cattle) these were disputed.
. . .
The liquidated nature of the claim or rather, the “liquidatedness” of the claim, is relevant
only insofar as the threshold in terms of s 9(1) of the Insolvency Act 24 of 1936 is
1 1970 (2) SA 742 (A).
1 1970 (2) SA 742 (A).
2 See also A Smith, K Van Der Linde and J Calitz Hockly’s Law of Insolvency (winding-up & Business
Rescue) 10th ed (2022) at 42.
3 2018 JDR 1298 (SCA), para 20 and 30.
9
concerned. In terms thereof, in order to apply to (petition) the court for the
sequestration of the estate of a debtor, one must have a claim “for not less than fifty
pounds” against a debtor. The purpose of the provision was plainly to prevent persons
who had trifling claims or claims that were speculative from being able to sequestrate
the estate of another person. The longevity of the currency of the Insolvency Act is
testimony to its extraordinarily capable draftsmanship. The passage of time has,
however, eroded the value of money. Translated into modern South African currency,
the threshold is R100. It had to appear in the application (petition, to use the original
terminology) that a creditor had a claim incontestably worth at least this amount in
order to have locus standi.’
[23] Section 10 of the Insolvency Act provides as follows:
‘Provisional sequestration
If the court to which the petition for the sequestration of the estate of a debtor has been
presented is of the opinion that prima facie-
(a) the petitioning creditor has established against the debtor a claim such as is
mentioned in subsection (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 make an order sequestrating the estate of the
debtor provisionally.’
[24] Essentially, the sequestrating creditor approaches the Court at two stages. The
first is to obtain a provisional order of sequestration in terms of section 10 of the
Insolvency Act, and the second is to have the provisional order confirmed and made
final in terms of section 12. The requirements for sequestration must be established
at each stage, but the standard of proof differs. At the provisional stage, the Court must
be satisfied that there is prima facie evidence that the statutory requirements for
be satisfied that there is prima facie evidence that the statutory requirements for
sequestration have been established. At the final stage, the Court must be satisfied,
on a balance of probabilities, that the requirements for a sequestration order have
been established.
4
4 A Smith, K Van Der Linde and J Calitz Hockly’s Law of Insolvency (Winding-up & Business Rescue)
10th ed (2022) at 66.
10
[25] In Magnum Financial Holdings (Pty) Ltd (In Liquidation) v Summerly and
Another NNO5, the Court observed:
‘Clearly then the trust as such is enabled to possess an estate and incur liabilities.
That this has occurred, is apparent from the founding affidavit. It is alleged that the
trust holds the entire issued share capital of the applicant as also shares in various
other companies, together with other assets such as a yacht, aeroplane and motor
car, and that it is indebted to the applicant in respect of monies lent and advanced to
the trust. It is further stated that the trust has substantial other debts. The trust is, in
the result, so it seems to me, “a debtor in the usual sense of the word”, and accordingly
susceptible of sequestration - provided that it is not
“a body corporate or a company or other association of persons which may be placed in liquidation
under the law relating to companies”.
[26] It is so that, in terms of section 11(1) of the Insolvency Act, if the Court
provisionally sequestrates the estate of a debtor, it must simultaneously grant a rule
nisi calling upon the debtor, on a day specified in the rule, to appear and to show cause
why his or her estate should not be sequestrated finally.
[27] Once an applicant for a provisional order of sequestration has established on a
prima facie basis the requisites for such an order, the Court retains a discretion
whether to grant the order. In Firstrand Bank Ltd v Evans
6, the Court held that, where
the prescribed conditions for a provisional sequestration order have been satisfied, the
Court should, in the absence of special circumstances, ordinarily grant the order. The
onus rests on the respondent to establish the special or unusual circumstances
warranting the exercise of the discretion in its favour.
[28] In Meskin & Co v Friedman
7, the Court held that the petitioning creditor bears
the onus of establishing, in addition to the debtor’s insolvency or an act of insolvency,
the onus of establishing, in addition to the debtor’s insolvency or an act of insolvency,
that there is “reason to believe” that sequestration will be to the advantage of creditors.
5 1984 (1) SA 160 (W) at 163A – C.
6 2011 (4) SA 597 (KZD) para 27.
7 1948 (2) SA 555 (W) at 558–559.
11
At the provisional stage, it is sufficient for the Court to be of the opinion that prima facie
there is such reason to believe. Even at the final stage, the Court need only be satisfied
that there is reason to believe that sequestration will be to the advantage of creditors;
it need not be satisfied that sequestration will in fact result in a financial advantage.
The facts must disclose a reasonable prospect, not necessarily a likelihood, but one
which is not too remote, that some pecuniary benefit will result to creditors.
[29] In Orestisolve (Pty) Ltd t/a Essa Investments v NDFT Investment Holdings (Pty)
Ltd and Another
8, the Court observed:
‘In an opposed application for provisional liquidation the applicant must establish its
entitlement to an order on a prima facie basis, meaning that the applicant must show
that the balance of probabilities on the affidavits is in its favour ( Kalil v Decotex (Pty)
Ltd and Another 1988 (1) SA 943 (A) at 975J-979F). This would include the existence
of the applicant’s claim where such is disputed.’
[30] In an opposed application for provisional sequestration, the applicant must
establish its entitlement to an order on a prima facie basis, including, where its claim
is disputed, the existence of that claim on a prima facie basis. Once the applicant has
shown that the debt prima facie exists, the onus rests on the respondent to show that
the debt is bona fide disputed on reasonable grounds. This principle is reflected in the
Badenhorst rule, which precludes the use of insolvency proceedings as a means of
enforcing payment of a debt that is bona fide disputed on reasonable grounds.9 Stated
differently, Badenhorst10 establishes that sequestration proceedings are not debt-
collection proceedings and should not be used to enforce a debt that is bona fide
disputed on reasonable grounds. The rationale is that insolvency proceedings are
designed to address insolvency and not to resolve ordinary disputes concerning
indebtedness.
11
indebtedness.
11
8 2015 (4) SA 449 (WCC) para 7.
9 Orestisolve (Pty) Ltd t/a Essa Investments v NDFT Investment Holdings (Pty) Ltd and Another 2015
(4) SA 449 (WCC) para 7 – 8.
10 Badenhorst v Northern Construction Enterprises (Pty) Ltd 1956 (2) SA 346 (T).
11 Commissioner for the South African Revenue Service v Muleya [2026] JOL 76787 (GP) para 97-99.
12
[31] In Exploitatie-en Beleggingsmaatschappij Argonauten 11 BV and Another v
Honig12, the Supreme Court of Appeal insightfully observed:
‘Sequestration proceedings are designed to bring about a concursus creditorem to
ensure an equal distribution between creditors, and are inappropriate to resolve a
dispute as to the existence or otherwise of a debt. Consequently, where there is a
genuine and bona fide dispute as to whether a respondent in sequestration
proceedings is indebted to the applicant (as in this case), the court should as a general
rule dismiss the application. This is the so-called “Badenhorst rule”. Named after the
decision in Badenhorst v Northern Construction Enterprises Ltd , this principle was
reaffirmed by this Court in Kalil v Decotex (Pty) Ltd and another and applies equally in
both winding up and sequestration proceedings. It is a rule of long standing and good
sense and is not likely to be departed from in circumstances such as the present. On
this basis alone, the appellants may well face grave difficulty in obtaining a
sequestration order against the respondent, as their counsel correctly conceded.’
(footnotes omitted)
Locus Standi:
[32] As alluded to above, the respondents contend that the applicant has failed to
establish its locus standi in terms of section 9(1) of the Insolvency Act. Their contention
is that the applicant has failed to prove that it lawfully succeeded to Grobank Limited’s
rights under the Facility Agreements and the Limited Guarantee and, consequently,
that it has failed to establish that it is a creditor of the Trust.
[33] Section 9(1) of the Insolvency Act provides:
‘A creditor (or his agent) who has a liquidated claim for not less than fifty pounds, or
two or more creditors (or their agent) who in the aggregate have liquidated claims for
not less than one hundred pounds against a debtor who has committed an act of
insolvency, or is insolvent, may petition the Court for the sequestration of the estate of
the debtor.’
the debtor.’
12 [2012] 2 All SA 22 (SCA) para 11.
13
It follows that, for purposes of section 9(1), the applicant must establish that it is a
creditor of the debtor with a qualifying liquidated claim and that the debtor has
committed an act of insolvency or is insolvent. At the provisional stage, these
requirements need only be established on a prima facie basis, whereas at the final
stage they must be established on a balance of probabilities.
[34] In its founding affidavit, the applicant asserts that it took over the assets and
liabilities of Grobank Limited pursuant to a transfer in terms of section 54 of the Banks
Act 94 of 1990 and, by virtue thereof, stepped into the shoes of Grobank and became
entitled to exercise the rights previously held by it. It accordingly contends that it is the
creditor of the Trust pursuant to the Unlimited Suretyship and Limited Guarantee
executed by the Trust in respect of the indebtedness of De Vos Landgoed. The
respondents dispute the alleged section 54 transfer, characterising the applicant’s
assertions as bald and contending that the applicant has produced no evidence of the
alleged transfer. They further dispute the applicant’s assertion that the transfer is
common cause and, on that basis, contend that the applicant has failed to establish
that it succeeded to Grobank’s rights, thereby placing its locus standi squarely in issue.
[35] Dealing with the challenge to its locus standi in reply, the applicant explains that
Access Bank (South Africa) Limited is owned by Access Bank PLC, based in Nigeria,
which acquired a controlling stake in Grobank. In the founding affidavit, Mr John
Vlismas, the deponent to both the founding and replying affidavits, had stated that the
acquisition had been implemented through a transfer of the assets and liabilities of
Grobank in terms of section 54 of the Banks Act. Following the respondents’ challenge
to this assertion, he explains that he investigated the matter further and established
to this assertion, he explains that he investigated the matter further and established
that the acquisition was not implemented by way of a section 54 transfer. Instead,
Access Bank PLC acquired a controlling stake in Grobank through the acquisition of
shares in terms of section 37 of the Banks Act. In support thereof, the applicant relies
on the approval issued by the South African Reserve Bank.
[36] The applicant further explains that Grobank subsequently changed its name to
Access Bank (South Africa) Limited. In support of this, it relies on the statement issued
by the South African Reserve Bank on 31 March 2021, the confirmation of the name
change issued by the CIPC and the certificate issued by the Prudential Authority. The
14
applicant accordingly contends that Grobank and Access Bank (South Africa) Limited
are the same legal entity. Of particular significance, it relies on the fact that the
registration number 1947/025414/06 reflected in the founding affidavit as the
applicant’s registration number is the same registration number reflected in the
relevant documents concluded in the name of Access Bank and in documents
concluded in the name of Grobank.
[37] The applicant submits that, in these circumstances, the respondents’ insistence
that it prove compliance with section 54 of the Banks Act is misconceived. Its
contention is that the common registration number, together with the evidence of the
subsequent name change, demonstrates that Grobank and Access Bank (South
Africa) Limited are the same juristic person and that the reference to Grobank, being
its former name, in the relevant agreements does not deprive the applicant of locus
standi. The applicant further submits that the Trust’s allegation that it lacks locus standi
is not made bona fide. In support of the latter submission, it points to the acceptance
of its claim in the business rescue proceedings of De Vos Landgoed without any issue
being raised as to why the claim was in Access Bank’s name rather than Grobank’s
name, and to correspondence in which representatives of De Vos Landgoed made
undertakings to pay Access Bank.
[38] The respondents contend that the Facility Letter , the Term Loan Facility
Agreement and the Guarantee were concluded with Grobank and, as such, that the
applicant has failed to discharge the onus of proving its locus standi as a creditor. The
respondents aver that the applicant has failed to demonstrate that any rights were
ceded or assigned to it.
[39] In its papers, the Trust at no stage disputes that it stood surety for De Vos
Landgoed. It concedes that the Unlimited Suretyship was executed in favour of the
applicant, but disputes that the Unlimited Suretyship is presently enforceable. The
applicant, but disputes that the Unlimited Suretyship is presently enforceable. The
respondents contend that the Unlimited Suretyship is an accessory obligation and that
its liability would arise only once the obligations of De Vos Landgoed have been proved
and are enforceable.
15
[40] It is so that on 1 August 2022, the Trust executed the Unlimited Suretyship in
favour of Access Bank and bound itself in solidum as surety and co-principal debtor
with De Vos Landgoed. The first and second respondents, in their capacities as
trustees of the Trust, were authorised to execute the deed of suretyship on its behalf.
In terms of the Unlimited Suretyship, the Trust guaranteed and bound itself jointly and
severally as surety and co-principal debtor with De Vos Landgoed for the due and
punctual payment and discharge of all obligations and liabilities, actual or contingent,
present or future, owed by De Vos Landgoed to Access Bank.
[41] The conduct of the parties thereafter is consistent with the applicant’s case. The
letter of demand addressed to the Trust advised the trustees that Access Bank had
taken over the assets and liabilities of Grobank Limited and had stepped into the shoes
of Grobank. Although the reference therein to section 54 of the Banks Act was
erroneous, the demand itself identified Access Bank as the creditor asserting the rights
arising from the Guarantee. The correspondence further demonstrates that the Trust
was thereafter dealing with Access Bank. More importantly, the trustees had
themselves executed the Unlimited Suretyship in favour of Access Bank on 1 August
2022. The respondents provide no explanation for this subsequent execution of the
Unlimited Suretyship if Access Bank was, as they now contend, a wholly different
creditor with no entitlement arising from the Trust’s earlier obligations to Grobank.
[42] It is common cause that De Vos Landgoed has been under business rescue
since September 2024 and that an application in terms of section 153(7) is currently
pending. The respondents accordingly aver that, until the section 153(7) application
has been finalised, there has been no final determination as to whether the business
rescue plan will be adopted and implemented. This Court, however, notes that the said
rescue plan will be adopted and implemented. This Court, however, notes that the said
section 153(7) application has recently been dismissed by the North Gauteng High
Court, Pretoria.
13
[43] It is trite that the statutory moratorium in favour of a company undergoing
business rescue proceedings constitutes a defence in personam. It is a personal
13 De Vos Landgoed (Pty) Ltd v Access Bank (South Africa) Ltd (Al Mabroor Agri (Pty) Ltd intervening)
(2025/047078) [2026] ZAGPPHC 899 (20 August 2026).
16
privilege or benefit in favour of the company. 14 A defence which is purely personal to
the principal debtor may not be raised by the surety. Business rescue proceedings do
not affect the right to pursue sureties for the company.15
[44] The respondents dispute the indebtedness relied upon by the applicant,
principally on the basis that the Unlimited Suretyship is not presently enforceable while
the indebtedness of De Vos Landgoed remains unresolved. The issue, therefore, is
whether the respondents have raised a bona fide dispute as to the indebtedness on
reasonable grounds.
[45] I am of the view that the respondents’ defence in this regard is neither bona fide
nor founded on reasonable grounds. The documentary evidence, considered together
with the subsequent conduct of the parties, establishes on a prima facie basis that
Grobank Limited and Access Bank (South Africa) Limited are the same juristic person,
the latter being the changed name of the former. The error in the founding affidavit
concerning the statutory mechanism by which the acquisition occurred does not alter
that conclusion. Nor does the fact that certain agreements were concluded in the name
of Grobank, while the subsequent Unlimited Suretyship was concluded in the name of
Access Bank, establish that the Trust was dealing with two different creditors.
[46] The respondents further contend that the applicant’s reliance in reply on section
37 of the Banks Act amounts to an impermissible attempt to make out a new case. I
do not agree. The applicant’s case, both in the founding affidavit and in reply, remained
that Access Bank was entitled to enforce the rights arising from the banking
relationship previously conducted in the name of Grobank. The reference in the
founding affidavit to section 54 of the Banks Act was an error concerning the statutory
mechanism by which the acquisition occurred. The explanation in reply that the
acquisition was effected through the acquisition of shares in terms of section 37,
acquisition was effected through the acquisition of shares in terms of section 37,
coupled with the evidence of the subsequent name change, was directly responsive
to the respondents’ challenge to the applicant’s locus standi. It did not introduce a new
cause of action or a new basis for the applicant’s claim against the Trust. The
14 Investec Bank Ltd v Bruyns 2012 (5) SA 430 (WCC) para 18.
15 New Port Finance Co (Pty) Ltd and Another v Nedbank Ltd 2016 (5) SA 503 (SCA).
17
respondents were therefore not prejudiced by the explanation, and their objection on
this ground cannot be sustained.
[47] The applicant has accordingly established, on a prima facie basis, that it is a
creditor of the Trust with a liquidated claim as contemplated in section 9(1) of the
Insolvency Act. The respondents’ challenge to the applicant’s locus standi therefore
falls to be rejected.
Factual insolvency/ act of insolvency:
[48] In Boschpoort Ondernemings (Pty) Ltd v Absa Bank Ltd
16, the Supreme Court
of Appeal discussed the distinction between factual insolvency and commercial
insolvency. It is apt, in the circumstances, to quote the relevant remarks:
‘For decades our law has recognised two forms of insolvency: factual insolvency
(where a company's liabilities exceed its assets) and commercial insolvency (a
position in which a company is in such a state of illiquidity that it is unable to pay its
debts, even though its assets may exceed its liabilities). See, for example, Johnson v
Hirotec (Pty) Ltd; Ex parte De Villiers and Another NNO: In re Carbon Developments
(Pty) Ltd (in Liquidation); Rosenbach & Co (Pty) Ltd v Singh's Bazaars (Pty) Ltd.
That a company's commercial insolvency is a ground that will justify an order for its
liquidation has been a reality of law which has served us well through the passage of
time. The reasons are not hard to find: the valuation of assets, other than cash, is a
notoriously elastic and often highly subjective one; the liquidity of assets is often more
viscous than recalcitrant debtors would have a court believe; more often than not,
creditors do not have knowledge of the assets of a company that owes them money
— and cannot be expected to have; and courts are more comfortable with readily
determinable and objective tests such as whether a company is able to meet its current
liabilities than with abstruse economic exercises as to the valuation of a company's
liabilities than with abstruse economic exercises as to the valuation of a company's
assets. Were the test for solvency in liquidation proceedings to be whether assets
exceed liabilities, this would undermine there being a predictable and therefore
16 2014 (2) SA 518 (SCA) para 16 – 17.
18
effective legal environment for the adjudication of the liquidation of companies: one of
the purposes of the new Act, set out in s 7(l) thereof.’ (footnotes omitted)
[49] Although a creditor may have good reason for believing that the debtor is
insolvent, he may seldom be able to prove that the debtor’s liabilities exceed his
assets. This appears to have been the reason why the legislature has designated
certain acts or omissions by a debtor as “acts of insolvency”. It follows that, if a creditor
can establish that the debtor has committed one or more of these acts of insolvency,
he may seek an order sequestrating the debtor’s estate without having to prove that
the debtor is actually insolvent. An act of insolvency is a statutory concept which
obviates the necessity of proving actual insolvency.
17 An act of insolvency is distinct
and separate from actual insolvency and constitutes a separate basis upon which
sequestration may be sought.
18 Commercial insolvency refers to a situation in which
a debtor cannot pay his debts as and when they fall due for payment. 19 Section 9(1)
of the Insolvency Act accordingly envisages two distinct and separate bases upon
which sequestration may be sought: one based on a legislatively defined act of
insolvency and the other on actual insolvency. It follows that a debtor’s estate may be
sequestrated even though he is technically solvent.
20 In the present matter, the
applicant relies on actual insolvency and contends that, if the debt owed to it by the
Trust is taken into account, the Trust’s liabilities exceed its assets and it is therefore
factually insolvent.
[50] The applicant submits that it has made a prima facie case that the Trust is
factually insolvent. The Trust disputes this and avers that its financial statements
reflect a clear surplus of assets over liabilities. This, the Trust contends, is the position
unless and until the disputed liability owed by the Trust to the applicant is included
among its liabilities.
among its liabilities.
17 De Villiers NO v Maursen Properties (Pty) Ltd 1983 (4) SA 670 (T) at 676E.
18 Absa Bank Limited v Appelcryn 2022 JDR 1780 (GJ) para 15.
19 Absa Bank Limited v Appelcryn 2017 JDR 1802 (GJ) para 5.
20 DP Du Plessis Prokureurs v Van Aarde 1999 (4) SA 1333 (T).
19
[51] In Ullman Sails (Pty) Ltd and others v Jannie Reuvers Sails (Pty) Ltd and Others
and Related Matters21, the Court observed:
‘It is not incumbent on an applicant relying on factual insolvency to adduce evidence
that would enable the respondent’s assets and liabilities to be finitely determined in
rands and cents. It would be a rare case, other than in the context of so-called friendly
sequestrations, for an applicant to be able to do that. It is well established that an
applicant can discharge the onus of establishing a prima facie case on the basis of
factual insolvency by adducing sufficient evidence to justify the inference as a matter
of probability that the respondent is insolvent. Once an applicant does that, the
respondent attracts an evidential onus to rebut the inference by showing that he does
possess sufficient assets to be able to settle his liabilities, see Absa Bank Ltd v
Rhebokskloof (Pty) Ltd and Others 1993 (4) SA 436 (C) at 443D-G and Mackay v Cahi
1962 (4) SA 193 (O) at 204F-G. A strong and persuasive indicator of insolvency is the
failure by a respondent to pay his debts; cf the oft-cited observation by Innes CJ in De
Waard v Andrews and Thienhans Ltd 1907 TS 727 at 733:
“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”.’
[52] The applicant has attached the financial statements of the Trust as at February
2024, the veracity of which is not disputed. The applicant further alleges that the
financial statements do not take into account the liability owed by the Trust to it. In its
answering affidavit, the Trust does not dispute the accuracy of the financial
statements, but disputes its liability in terms of the Unlimited Suretyship on the basis
that it is unenforceable and that the applicant lacks locus standi.
[53] The applicant correctly relied on Fedco Cape (Pty) Ltd v Meyer
22, wherein the
[53] The applicant correctly relied on Fedco Cape (Pty) Ltd v Meyer
22, wherein the
Court held that, in determining whether a debtor is insolvent, the enquiry is not
confined to direct evidence concerning the debtor’s assets and liabilities. Where such
evidence is inconclusive, the court may have regard to indirect and inferential evidence
concerning the debtor’s conduct and consider such evidence together with the direct
evidence in determining whether the debtor is insolvent.
21 [2022] 3 All SA 290 (WCC) para 48.
22 1988 (4) SA 207 (E) at 211B-D and 212D-I.
20
[54] The question whether the applicant’s claim against the Trust is to be taken into
account in determining its factual solvency requires consideration of the nature of the
Trust’s liability under the Unlimited Suretyship. The liability of a surety is accessory to
the principal debt. The accessory nature of the obligation does not, however, render
the surety’s liability contingent merely because it is accessory. Where, as in the
present case, the Trust bound itself as surety and co-principal debtor, its liability is
enforceable when the principal debt becomes due and payable, subject to the terms
of the suretyship.
[55] In Millman and Another NNO v Masterbond Participation Bond Trust Managers
(Pty) Ltd (under curatorship) and Others
23 (“Millman”), the Court held that, unless the
parties have agreed otherwise, where a surety has bound himself also as co-principal
debtor, his debt becomes enforceable at the same time as the principal debt. The Court
further held that the liability of a surety and co-principal debtor is not contingent unless
the principal debt itself is contingent. It follows that, in determining whether the
liabilities of the surety and co-principal debtor exceed his assets, the obligations
undertaken by him as surety and co-principal debtor must be included among his
liabilities. To the extent that an amount is recoverable pursuant to the right of recourse,
a corresponding amount must be taken into account as an asset.
[56] In the present matter, the Trust expressly bound itself as surety and co-principal
debtor for the obligations of De Vos Landgoed to the applicant. The Trust, however,
disputed its liability under the Unlimited Suretyship on the basis that its obligation was
accessory and that the indebtedness of De Vos Landgoed remained unresolved. I
have dealt with this contention above and found that it does not constitute a bona fide
dispute founded on reasonable grounds. The applicant’s claim against the Trust is
dispute founded on reasonable grounds. The applicant’s claim against the Trust is
accordingly enforceable and due and payable. Its liability under the Unlimited
Suretyship cannot, merely by reason of its accessory nature, be excluded from the
determination of its liabilities. It must be taken into account.
23 1997 (1) SA 113 (C) at 123A–D.
21
[57] It is also relevant that, on 28 July 2025, the applicant demanded payment from
the Trust in terms of the Unlimited Suretyship. The Trust did not make payment as
demanded. At the time, however, the Trust disputed its liability and contended that the
principal indebtedness remained unresolved. The failure to make payment must
therefore be considered in the light of my finding above that the defence relied upon
by the Trust is not bona fide and is not founded on reasonable grounds.
The surety's right of recourse:
[58] It is so that a surety who has paid the debt of the principal debtor to the creditor
has a right of recourse against the debtor; he is entitled to reimbursement by the
principal debtor of what he has paid the creditor. This was so in Roman law,
notwithstanding that payment of the debt extinguished it and released the debtor; it
became the Roman-Dutch law and is our law.
24 In Zungu-Elgin Engineering (Pty) Ltd
v Jeany Industrial Holdings (Pty) Ltd and others25, the Supreme Court of Appeal, with
reference to Proksch v Die Meester en Andere 26, confirmed that, at common law, a
surety becomes a creditor of the principal debtor upon payment to the creditor.
[59] In Taylor and Thorne, NNO, and Others v the Master 1965 (1) SA 658 (N), the
Court insightfully made the following apt observations:
‘Those rights embrace pre-eminently the right of recourse and, save in the exceptional
circumstances which I shall mention, that right depends upon the surety having
discharged the principal debtor's obligation, that is to say by payment in the legal
sense. That is clear from the following authorities. . . . Having so paid, the surety is
subrogated by law to the rights of the creditor against the principal debtor; in these
days there is no necessity for him to obtain a cession of action (though in certain
circumstances there may be advantages to be gained from doing so) but he is entitled
to claim directly against the principal debtor to be re-imbursed his outlay. See also
to claim directly against the principal debtor to be re-imbursed his outlay. See also
Burge on Suretyship pp. 358, 359.
24 CF Forsyth and JT Pretorius Caney's The Law of Suretyship (6 ed) (2010) at 159) ─ (cited with
approval by the Supreme Court of Appeal in Zungu-Elgin Engineering (Pty) Ltd v Jeany Industrial
Holdings (Pty) Ltd and others [2020] JOL 49099 (SCA) para 12.
25 Ibid para 13.
26 1969 (4) SA 567 (A).
22
If the principal debtor is insolvent and the surety has made payment in pursuance of
the suretyship, he is an unconditional creditor in the insolvency. Rossouw and
Rossouw v Hodgson and Others, 1925 AD 97. If the surety has not made payment, then
prima facie his claim against the insolvent estate of the principal debtor is conditional;
but, for the applicants, Mr. Leon contended that events may occur, as he submitted
they have in the instant case, to make the claim unconditional. The consequence of a
claim being conditional is that the provisions of sec. 48 of the Insolvency Act operate
in respect of it: “a creditor whose claim against an insolvent estate is dependent upon
a condition may prove that claim . . ., but subject to the following provisions”, and para.
(b), applicable in the present case, provides for valuation of the claim. The Act contains
no definition of a conditional claim or an unconditional claim, but it appears to me that
the statement in Erskine's Institutes of the Law of Scotland, quoted in Winter and
Others v Inland Revenue Commissioners, (1961) 3 All E.R. 855 at p. 859, is apposite.
The condition upon which a surety's claim against the insolvent estate of the principal
debtor is dependent is, in accordance with the general principle I have stated, the fact
of his having discharged the obligation or, at any rate, partly discharged it, for to the
extent that he has done so he has a right of recourse against the principal debtor; see
the authorities cited above. To that extent only has he then an unconditional claim.’
27
[60] The corresponding issue is whether, and to what extent, any right or remedy
available to the Trust against De Vos Landgoed should be taken into account as an
asset. In Millman, the Court held that, to the extent to which an amount is recoverable
pursuant to the right of recourse, a corresponding amount must be taken into account
as an asset. In the present matter, however, the Trust has not paid the applicant
as an asset. In the present matter, however, the Trust has not paid the applicant
pursuant to the Unlimited Suretyship. Its ordinary common-law right of recourse has
accordingly not accrued. Furthermore, the evidence does not establish the existence
or value of any presently recoverable monetary claim against De Vos Landgoed.
[61] This is particularly so because De Vos Landgoed is subject to business rescue
proceedings, and the papers do not provide a sufficiently reliable basis upon which to
determine what, if anything, the Trust could presently recover from De Vos Landgoed.
27 At 661A-H.
23
The potential existence of a remedy available to the Trust before payment does not,
without evidence of its nature and recoverability, justify attributing a corresponding
value to the Trust’s assets. The applicant’s claim against the Trust must accordingly
be brought into account as a liability, without treating a presently unquantified or
unrealisable claim against De Vos Landgoed as an equivalent asset.
[62] The applicant has accordingly established that its claim against the Trust is
enforceable and due and payable. The Trust’s failure to satisfy that debt is a relevant
consideration in determining whether it is factually insolvent. The respondents rely on
the financial statements, which reflect a surplus of assets over liabilities, but that
position does not take into account the liability arising from the Unlimited Suretyship.
Nor is there a sufficiently reliable evidential basis upon which to attribute a
corresponding value to any claim which the Trust may have against De Vos Landgoed.
[63] Having regard to the liability arising from the Unlimited Suretyship, the evidence
regarding the Trust’s assets and liabilities, the absence of a sufficiently reliable basis
upon which to attribute a monetary value to any claim by the Trust against De Vos
Landgoed, and the Trust’s failure to satisfy the enforceable and due debt, I am satisfied
that the applicant has established a prima facie case that the Trust’s liabilities exceed
its assets. The inference of factual insolvency is, in the circumstances, justified as a
matter of probability.
Advantage to Creditors:
[64] To be successful with a provisional sequestration application, the applicant
must satisfy the Court that there is prima facie reason to believe that sequestration will
be to the advantage of the creditors of the debtor.
[65] In Meskin & Co v Friedman
28, the Court held:
‘In my opinion, the facts put before the Court must satisfy it that there is a reasonable
‘In my opinion, the facts put before the Court must satisfy it that there is a reasonable
prospect – not necessarily a likelihood, but a prospect which is not too remote – that
28 1948 (2) SA 555 (W) at 559.
24
some pecuniary benefit will result to the creditors. It is not necessary to prove that the
insolvent has any assets. Even if there are none at all, but there are reasons for
thinking that as a result of enquiry under the Act some may be revealed or recovered
for the benefit of creditors, that is sufficient.’
[66] In Liberty Group Ltd v Moosa
29, the Supreme Court of Appeal reaffirmed the
principle formulated in Meskin & Co v Friedman that advantage to creditors may lie in
the prospect of assets being found in the insolvent estate, including assets which may
have been concealed or improperly disposed of. The creditor must, on an overall
consideration of the papers, demonstrate reasonable grounds for concluding that,
upon investigation and inquiry, a trustee may be able to uncover assets which can be
attached and sold for distribution amongst creditors. The Court confirmed that it is not
necessary to prove that the insolvent has assets at the time of the application, provided
that there is a reasonable prospect, not too remote, that some pecuniary benefit will
result to creditors.
[67] In Body Corporate of Empire Gardens v Sithole and Another
30, the Supreme
Court of Appeal considered the concept of advantage to creditors and held:
‘The phrase “advantage to creditors” is not defined in the Insolvency Act, but if the
principle of concursus creditorum is taken into account, it means that there should be
a reasonable prospect of some pecuniary benefit to the general body of creditors as a
whole. (See Lynn and Main Inc. v Naidoo and Another 2006 (1) SA 59 (N) paras 33-
35; Ex Parte Bouwer and Similar Applications 2009 (6) SA 382 (GNP) para 13). This
requirement is fulfilled where it is established that there is reason to believe that there
will be advantage to a “substantial proportion” or the majority of the creditors reckoned
by value. (See Fesi and Another v Absa Bank Ltd 2000 (1) SA 499 (C) 505-506; Trust
Wholesalers and Woolens (Pty) Ltd v Mackan 1954 (2) SA 109 (N); Samsudin v De
Wholesalers and Woolens (Pty) Ltd v Mackan 1954 (2) SA 109 (N); Samsudin v De
Villiers Berrange NO [2006] SCA 79 (RSA)). Although advantage to creditors is not a
rigid concept (Stratford and Others v Investec Bank Ltd and Others 2015 (3) SA 1 (CC)
para 44), it requires proof of a tangible benefit to the general body of creditors.’
29 2023 (5) SA 126 (SCA) para 27.
30 2017 (4) SA 161 (SCA) para 10.
25
[68] In London Estates (Pty) Ltd v Nair31 the court held:
‘The standard of proof differs in respect of a provisional and final order (cf. Sacks
Morris (Pty) Ltd v Smith 1951 (3) SA 167 (O) at 170). This must relate to the proof of
the facts giving rise to the belief - not to the degree of conviction the belief engenders.
In both cases the facts must show that there is a reasonable prospect - not necessarily
a likelihood, but a prospect which is not too remote - that some pecuniary benefit will
result to creditors. But in the case of a provisional order there need only be prima facie
proof of those facts; in the case of a final order the Court must be satisfied that those
facts exist, presumably on a balance of probabilities. This must be the case whether
the applications are opposed or not. The onus is on the applicant and in general he
must allege and prove his facts. A bald allegation in the petition that sequestration will
be to the benefit of creditors is not sufficient.’
[69] The applicant submits that the Trust’s asset structure indicates that, upon
sequestration, there is a substantial pool of assets that could satisfy creditors’ claims.
It was further submitted that the appointment of a trustee would have concomitant
benefits for creditors, in that the appointed trustee will be able to conduct an insolvency
inquiry into the affairs of the Trust. The respondents submit that the allegation of a
clear advantage is unfounded and that sequestration would not produce any non-
negligible dividend. The respondents further submit that the applicant has not, on a
balance of probabilities, demonstrated that sequestration will be to the advantage of
the creditors.
[70] In Stratford and Others v Investec Bank Ltd and Others
32, the Constitutional
Court considered the requirement of advantage to creditors and held:
‘In terms of the Insolvency Act, a court may grant a sequestration order, either
provisionally or finally, if “there is reason to believe that it will be to the advantage of
provisionally or finally, if “there is reason to believe that it will be to the advantage of
creditors of the debtor if his estate is sequestrated”. It is the petitioner who bears the
onus of demonstrating that there is reason to believe that this is so. In Friedman the
court held:
31 1957 (3) SA 591(D) at 593B-D.
32 2015 (3) SA 1 (CC) para 43 – 45.
26
“(T)he facts put before the Court must satisfy it that there is a reasonable prospect — not necessarily
a likelihood, but a prospect which is not too remote — that some pecuniary benefit will result to
creditors. It is not necessary to prove that the insolvent has any assets. Even if there are none at all,
but there are reasons for thinking that as a result of enquiry under the [Insolvency] Act some may be
revealed or recovered for the benefit of creditors, that is sufficient.”
The meaning of the term “advantage” is broad and should not be rigidified. This
includes the nebulous “not-negligible” pecuniary benefit on which the appellants rely.
To my mind, specifying the cents in the rand or “not-negligible” benefit in the context
of a hostile sequestration where there could be many creditors is unhelpful. Meskin et
al state that —
“the relevant reason to believe exists where, after making allowance for the anticipated costs of
sequestration, there is a reasonable prospect of an actual payment being made to each creditor who
proves a claim, however small such payment may be, unless some other means of dealing with the
debtor’s predicament is likely to yield a larger such payment. Postulating a test which is predicated
only on the quantum of the pecuniary benefit that may be demonstrated may lead to an anomalous
situation that a debtor in possession of a substantial estate but with extensive liabilities may be
rendered immune from sequestration due to an inability to demonstrate that a not-negligible dividend
may result from the grant of an order.”
The correct approach in evaluating advantage to creditors is for a court to exercise its
discretion guided by the dicta outlined in Friedman. For example, it is up to a court to
assess whether the sequestration will result in some payment to the creditors as a
body; that there is a substantial estate from which the creditors cannot get payment,
except through sequestration; or that some pecuniary benefit will redound to the
creditors.’
creditors.’
[71] The Trust’s financial statements reflect a surplus of assets over liabilities. The
respondents rely on this position in support of their contention that the Trust is solvent.
As I have found above, however, the liability arising from the Unlimited Suretysh ip
must be taken into account in determining the Trust’s solvency. The question whether
sequestration will be to the advantage of creditors is nevertheless a separate enquiry.
Having regard to the circumstances disclosed in the papers and the fact that the
financial affairs of the Trust warrant investigation, I am satisfied that there is a
reasonable prospect that sequestration will result in a pecuniary benefit to the general
body of creditors.
27
[72] In conclusion, it is clear from the papers that the applicant has the necessary
locus standi to bring this application, that the Trust is factually insolvent, and that there
is reason to believe that sequestration will be to the advantage of its creditors.
Accordingly, the applicant has made out a case for the provisional sequestration of the
Trust.
[73] Consequently, I make the following order:
1. The estate of the De Vos Boerdery Trust (Trust No: IT 9082/97) is placed
under provisional sequestration and is placed in the hands of the Master
of the High Court, Kimberley.
2. A rule nisi is hereby issued calling upon all interested parties to appear
and show cause, if any, to this Court on the 16th day of October 2026 at
09:30 or so soon thereafter as the matter may be heard, why the estate
of the De Vos Boerdery Trust should not be placed under final
sequestration and why the costs of this application, on the attorney and
client scale, should not be costs in the sequestration.
3. This order operates with immediate effect as a provisional order for the
sequestration of the De Vos Boerdery Trust.
4. Service of this order shall be effected in the following manner:
4.1. on the respondents at Farm Quaggasfontein, Terewa Road,
Colesberg, 9795;
4.2. on the employees of the De Vos Boerdery Trust, if any;
4.3. on every registered address of the trade unions that represent
employees of the Trust, if any;
4.4. on the South African Revenue Service; and
4.5. on the Master of the High Court, Kimberley.
TTYUTHUZA
ACTING JUDGE OF THE HIGH COURT
28
NORTHERN CAPE DIVISION
29
Appearances
For applicant: Adv D.M. Leathern SC.
Instructed by: Edward Nathan Sonnenbergs Inc.
c/o Duncan & Rothman.
For respondents: Adv P.J.J Zietsman SC.
Instructed by: Dreyer and Dreyer Attorneys Inc.
c/o Roux Welgemoed & Du Plooy Attorneys.