CVI Shackleton (Pty) Ltd v Jaffer
| Jurisdiction | http://justis.com/jurisdiction/166,South Africa |
| Judge | Mudau J |
| Judgment Date | 19 September 2023 |
| Docket Number | 2022/35033 |
| Hearing Date | 14 August 2023 |
| Court | Gauteng Local Division, Johannesburg |
Mudau J:
This is an application for the sequestration of the respondent’s estate in terms of the provisions of the Insolvency Act [1] (the Act). The applicant is CVI Shackleton (Pty) Ltd (CVI), a company duly registered and incorporated according to the company laws of the Republic of South Africa. The respondent is an adult male with a given address at Grysvalk Walk, Pretoria, Gauteng Province.
In terms of section 8 of the Act, a debtor commits an act of insolvency:
if he makes or offers to make any arrangement with any of his creditors for releasing him wholly or partially from his debts;
. . .
if he gives notice in writing to any one of his creditors that he is unable to pay any of his debts.”
Background facts
On 5 October 2018, the respondent entered into a loan agreement with Direct Axis, a business unit of FirstRand Bank Limited, on behalf of Wesbank, a division of FirstRand Bank Limited. In time, the respondent breached the terms of the loan agreement with Direct Axis which rendered the full outstanding balance of the said loan immediately due and payable. With effect from 1 August 2021, Direct Axis, the cedent entered into an agreement with CVI in terms of which it ceded, inter alia, the right, title, and interest in and to said claim against the respondent to CVI.
On 17 June 2022, the respondent wrote a letter to the applicant in which he acknowledged his full liability to CVI and made an offer of settlement. On CVI’s version, the respondent is indebted to it, taking account of the capital and interest in the sum of R 211 250.72 as of 13 October 2022, with further interest on that amount continuing to accrue. The respondent informed CVI that he does not have monies wherewith to satisfy CVI’s claim. Following negotiations between the respondent and CVI, the respondent offered to make a payment of R 1 000
2023 JDR 3604 p3
Mudau J
by 1 August 2022, and would thereafter make monthly payments of R 2 500 from 30 August 2022 onwards.
The respondent thereafter made two payments of R 1 000 each, on 1 and 31 August 2022, respectively. No further payments had been received by CVI. CVI contends that by arranging with his creditor for releasing him wholly or partially from his debt, the respondent thus committed an act of insolvency as defined in section 8(e) of the Act. CVI contends that by indicating that he was unable to make payment to CVI of a discounted lumpsum in settlement of the debt, the respondent also committed an act of insolvency in terms of section 8(g) of the Act. Prior to the launch of CVI’s action under case number...
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