Craggs v Dedekind; Baartman v Baartman and Another; Van Jaarsveld v Roebuck; Van Aardt v Borrett

• Jurisdiction: South Africa
• Judge: Conradie J
• Judgment Date: 08 September 1995
• Citation: 1996 (1) SA 935 (C)
• Docket Number: 9432/95, 9284/95, 9429/95 and 9433/95
• Hearing Date: 17 August 1995
• Counsel: G C le Roux for applicants in the Craggs, Baartman and Van Aardt cases. W Young for applicant in the Van Jaarsveld case.
• Court: Cape Provincial Division

Conradie J:

Friendly sequestrations are nothing new. As long ago as 1925 Curlewis JP in Kerbel v Chames 1925 WLD 72 at 76-7 remarked:

'It is said that very frequently, in this Court particularly, what are called "friendly sequestrations" take place . . . and one has a strong I suspicion that in a very large number of sequestrations in this Court, these sequestration proceedings are not for the benefit of the creditors, but are entirely for the benefit of the insolvent, and are very often instituted by a friend to help the debtor out of his difficulties.'

For many years the Courts have warned against neglecting the interests of creditors in applications of this kind. Kerbel v Chames 1925 WLD 72; J Wepener v Ericson 1926 WLD 81; Klemrock (Pty) Ltd v De Klerk and

Conradie J

Another 1973 (3) SA 925 (W) at 927A; Campher v Campher 1978 (3) SA 797 (O) at 798E; Epstein v Epstein 1987 (4) SA 606 (C) at 610F. This is a legitimate concern which should continue to engage the attention of the Courts, but it is not my principle concern with the four applications on which I have reserved judgment. A

B Friendly sequestrations seem to share certain characteristics. Although, like pornography, they may be hard to define, they are easy to recognise. The debt which the sequestrating creditor relies upon is almost always a loan. It is usually quite a small loan, very often made in circumstances where it would have been apparent to the whole world that the respondent C was in serious financial difficulty. Despite this, the loan is customarily made without security of any sort. It is seldom evidenced by a written agreement, or even subsequently recorded in writing. The only writing that is produced to the Court is the letter stating, with appropriate expressions of dismay that the debt cannot be paid, and, sometimes, for good measure, setting out details of the respondent's D assets and liabilities. Very often debtor and creditor are related: fathers commonly sequestrate sons, wives sequestrate husbands and sweethearts sequestrate each other, without, I am sure, any damaging effect on their relationship.

Co-operation between debtor and creditor, which is fine, can easily turn into collusion which is not. A Court should, I consider, be on its guard E against it. Because of this, and when the signs are there, a Court may be forgiven for requiring rather more from a friendly petitioner in the way of establishing his claim...