Optima Fertilizers (Pty) Ltd v Turner

• Jurisdiction: South Africa
• Judge: Caney J
• Judgment Date: 23 July 1968
• Citation: 1968 (4) SA 29 (D)
• Court: Durban and Coast Local Division

A Caney, J.:

This is an application for the provisional sequestration of the estate of the respondent, who, having been served with the papers, contests the application. The petitioner carries on business as a manufacturer and distributor of fertiliser. The respondent is a farmer. His debt to the petitioner is in the sum of R5,753.96, and arose in the B following manner. In or about July, 1964, he, and his daughter and her husband, arranged with the petitioner to supply them with fertiliser on credit. He and they fell into arrears with their obligations in this regard and on 8th February, 1967 he owed R6,271.92, whilst they owed C R6,633.36. The respondent assumed liability for the latter debt and on the date mentioned signed a document in which he acknowledged his indebtedness to the petitioner in the sum of R12,905.28, undertaking to pay interest at 81/2 per cent per annum from 1st January, 1967 on the monies owing from time to time; he also undertook to liquidate the debt by payment of eight monthly instalments of R1,500 each payable on the D first days of each of the months of January to March and July to November, inclusive, of that year and a final instalment to cover the balance owing at the end of December, 1967. In the event of any one instalment not being paid on due date, the full balance owing by him was to become due and payable forthwith.

E The respondent failed to comply entirely with his obligations, with the consequence that the petitioner sued him in this Court and on 22nd December, 1967 obtained judgment against him for the sum of R4,949.85 (apparently the balance of his debt to the petitioner), with interest and costs. In the meantime, after receipt of the summons on which the F judgment was granted, the respondent on or about 30th November applied to the Department of Agricultural Credit and Land Tenure for assistance in terms of the provisions of the Agricultural Credit Act, 1966. The Department issued him a certificate dated 28th December as a result of which all proceedings against him were stayed; this, however, was too late to stand in the way of the petitioner taking the judgment I have G mentioned. On 29th February, 1968 the Department informed the respondent that his application for assistance could not be granted.

On 21st March, 1968 the petitioner issued a writ of execution of the judgment, and on 26th of that month the Deputy Sheriff made an attachment of goods of the respondent, being cattle and farming implements, upon which the Deputy Sheriff placed a value of R2,180. On H the following day the respondent interviewed the manager of the Land and Agricultural Bank, to which he was then indebted in a sum of R4,500, and applied for a loan of a further R4,500. An official of the Bank communicated with the petitioner's attorneys and this was followed by the respondent interviewing the petitioner's attorney; it was contemplated that, if the Bank granted the loan, a sum of R2,250 would be paid from it on account of the petitioner's claim. As the outcome of discussions on 5th April the respondent signed a document containing inter alia, a statement by him which the petitioner contends amounts to the act

Caney J

of insolvency provided by sec. 8 (g) of the Insolvency Act, 24 of 1936. This document reads as follows:

'I, the undersigned (the respondent), do hereby acknowledge that I am indebted to (the petitioner) in the sum of R5,753.96 (in words and figures) being in respect of capital, interest, judgment and writ costs, A Deputy Sheriff's charges and agreed collection charges and attorney and client costs. Of the said sum . . . I hereby acknowledge the sum of R5,610.64 (in words and figures) is at present due, owing and payable by me to (the petitioner). I am at present unable to pay the said sum of R5,610.64 to (the petitioner).'

(This sentence is the statement relied upon by the petitioner as amounting to an act of insolvency). By the document the respondent then went on to undertake and promise to pay his total indebtedness by an B instalment of R2,250 payable on 30th April and thereafter four instalments of R700 each payable on the last days of the months of July to October inclusive, and a final instalment of R703.96 payable on 30th November...