Oosthuizen v Steyn
| Jurisdiction | South Africa |
| Judge | NM Mavundla J |
| Judgment Date | 14 May 2020 |
| Docket Number | 238969 / 2019 |
| Court | North Gauteng High Court, Pretoria |
| Hearing Date | 14 May 2020 |
| Citation | 2020 JDR 0867 (GP) |
Mavundla J:
This is an application for the provisional sequestration of the respondent, brought by her erstwhile attorney, the applicant herein.
The basis of the application is that, the applicant is a judgment creditor in the amount of R41 258.14 (excluding costs and interest) and the respondent has admitted the debt and also the inability to pay.
It is common cause that the aforesaid debt emanated as a defamation action under case number 44384/2015 that was instituted by the applicant against the respondent. This resulted in the parties reaching a settlement agreement that was made an order of court by Ledwaba DJP on 7 March 2017. The respondent was ordered to pay R2000. 00 per month to liquidate the aforesaid debt of R41258. 14.
The applicant subsequently taxed her bill of costs. She also attached annexure "G" which is the latest statement reflecting the amount of R153 933. 35 which the respondent is indebted to the plaintiff.
The respondent has acknowledged in writing that she is unable to satisfy the judgment debt and make monthly payments in the amount of R2000.00 per month on 18 October 2017 and 16 January 2018. In
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this regard annexure "H1" and "H2" respectively were attached to the papers.
The written acknowledgment that she is unable to pay the judgment debt, which amounts to an act of insolvency in terms of section 8(g) of the Act.
It is common cause that the sheriff attempted to attach the moveable property of the respondent on 10 July 2018. In this regard a notice of attachment was attached as annexure "I". The value of the attached goods as per sheriff's return amounted to R7 100. 00. However, a third party named Chares Bester laid claim on the goods so attached, although this claim was dismissed by Mothle J on 13 March 2019, as Bester failed to deliver particulars of her claim to the attached goods, as per annexure "J".
A deed of search was conducted and revealed that the respondent is the owner of immovable property situated within the jurisdiction of the Court.
The applicant submitted that the respondent is factually insolvent. Based on the fact that the respondent is the owner of an immovable property, it was submitted that there would be at least something to levy execution against, and be of advantage to the body of creditors,
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although the applicant is unable to state what dividend in monetary terms would be after sequestration.
The applicant contended further in her papers that, given the notice of attachment and subsequent interpleader proceedings and massive amount of the judgment debt, it is highly improbable that the applicant respondent has movable assets exceeding the amount of the judgment debt. It is further submitted that on a preponderance of probabilities the applicant (sic) is factually insolvent in that her liabilities exceed her assets. (Although in the papers it is stated that the applicant is factually insolvent-- reading the statement in context it is clear that reference in fact is made to the respondent.).
The applicant further submitted that it is essential that the hand of the law be placed on the respondent and her estate (which she has been evading for the past two years already, and committed numerous acts of insolvency) so that a trustee be appointed who can investigate the affairs of the respondent, unearth assets and liquidate assets for the benefit of creditors, as it would be in the interest of and benefit of creditors of the respondent if she is sequestrated.
The applicant further stated that the application would be served on the South African Revenue Services in terms of the provisions of
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section 9(4A) (a)(iii) of the Act and the Master of the High Court in terms of section 9(4) of the Act.
The applicant further stated that she was not aware whether there are employees employed by the respondent or not. The sheriff will make the necessary enquiry with the respondent when the sequestration is served on the respondent, and if there are employees. Instructions would be given to the sheriff to serve the application on employees and to indicate in her return what she has done in that regard,
A Bond of security for the necessary security for the costs of this application, as required by section 9(3)(b) of the Act, has been taken out with the Master of this Court and is attached as annexure "L".
Accordingly, the applicant prays that the estate of the respondent be provisionally sequestrated.
On the other hand the respondent in resisting the grant of the order prayed for, raised as a first defence a point in limine that there has been non-compliance with the regulations governing the administering of an oath or affirmation, GN R1258 3619, 21 July 1972 (As amended) in that:
The deponent has described herself as an adult female attorney in paragraph 1.1 of the founding affidavit, however, as
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per the graphs below the commissioner of oaths refers to the deponent as a male.;
The commissioner of oaths certified as follows:
"Signed and Sworn to before me at Pretoria on this 3rd day of April 2019 after the Deponent declared that she/he is familiar with the contest of this statement and regards the prescribed oath as binding on his conscience and he has no objection against taking the prescribed oath. There has been compliance with the requirements of the Regulations contained in Government Gazette R1258M dated 21 July 1972 (as amended.);
In terms of Regulation 4(1) of the Regulations, regardless of whether the Deponent is male or female, the commissioner of oaths is required to certify below the Deponent's signature or mark that the Deponent has acknowledged that he (where the Deponent is male), or she (where the Deponent is female) understands the contents of the declaration and that he or she (depending on the gender of the Deponent) has stated the manner, place and date of taking the declaration/ oath. If the
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Deponent is female the commissioner of oaths is required to use the pronoun "she".
The commissioner of oaths certified that the Deponent has acknowledged that "he/she" is familiar with the contents of the statement and regards the prescribed oath as binding on his conscience and has no objection against the taking of the said prescribed oath;
that the court can place no reliance on the certification of the commissioner of oaths ex facie the affidavit as it is unclear whether the deponent is a male or a female. On a balance of probabilities, the deponent appears from the certification...
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