IN THE HIGH COURT OF SOUTH AFRICA

(LIMPOPO DIVISION, POLOKWANE)

Case no:

In the matter between:

BUILDING WHOLESALERS CC Applicant

and

MXXXXX FXXXXX CXXXXX Respondent

________________________________________________________________

FOUNDING AFFIDAVIT
________________________________________________________________

I, the undersigned

XXXXX ABDUL XXXXX,

do hereby make an oath and state that:

1. I am a major male business person and a member of the applicant, conducting

business at 12 Dal street, Polokwane, and I am duly authorized to depose

to this affidavit on behalf of the applicant as appears more fully from the

relevant Resolution signed by the members of the applicant, copy of which is

attached hereto marked as ANNEXURE “YA1”.

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2. The facts contained herein are within my personal knowledge, unless indicated

otherwise or apparent from the context, and are, to the best of my knowledge

and belief, both true and correct.

3. Where I refer to legal aspects I do so on advice from the applicant’s attorneys.

THE APPLICANT

3. The applicant is BUILDING WHOLESALERS CC, a close corporation

duly incorporated and registered in terms of the laws of the Republic of South

Africa, and with registration number 1998/013815/23, and having its registered

address and principle place of business at 12 Dal street, Polokwane,

Limpopo Province.

4. The applicant is a legitimate creditor of the respondent in terms of a judgment

in the sum of R2 351 919.37.

THE RESPONDENT

5. The respondent is MXXXX FXXXXX CXXXX, a major male person

with ID number 999999 5555 083, with residential address at 999 Zone 9,

Seshego, Limpopo Province. Copy of ID document is attached hereto as

ANNEXURE “YA2”.
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JURISDICTION

6. I respectfully submit that this Honourable Court has jurisdiction to hear this

application by virtue of the fact that the respondent is ordinarily resident

within its area of jurisdiction.

PURPOSE OF THE APPLICATION

7. This application has the bona fide purpose to put the respondent’s estate

under sequestration on the basis that the respondent committed an act of

insolvency as contemplated by Section 8(b) of the Insolvency Act, Act

number 24 of 1936, as amended, as will be more fully set out hereunder.

BACKGROUND

8. During 2016 the applicant sold and delivered goods and material to

respondent.

9. At the end of September 2016 the respondent was indebted to the applicant

the amount of R2 351 919.37 in respect of goods sold and delivered, which

amount was due and payable.

10. On the 7th of October 2016 the respondent signed an acknowledgement of

debt, whereby unconditionally admitted his liability to the applicant.

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11. As a result thereof the applicant instituted legal action against the

respondent in this Honourable Court under case number 2222/2016.

12. Subsequently judgment and a warrant of execution was obtained against the

the respondent, copies of which are attached hereto as ANNEXURE

“YA3” and ANNEXURE “YA4” respectively.

13. The sheriff attached certain movable property and on the 00th of October

2017 held a sale in execution, which sale yielded the total sum of R1 000.00.

Copy of the relevant return is attached hereto as ANNEXURE “YA5”.

14. I respectfully submit that the sheriff’s return of service is a nulla bona return

and therefore the respondent has committed an act of insolvency as

contemplated by Section 8(b) of the Act.

15. The judgment debt therefore remains unsatisfied.

16. The applicant’s attorneys have made several attempts to make contact with

the respondent to arrange for payment of the outstanding judgment debt but

without success. I respectfully refer the Honourable Court to the confirmatory

affidavit of Ziyaad Ismail, an attorney in the employment of the applicant’s

attorneys, attached hereto as ANNEXURE “YA6”.

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17. To date of signing this affidavit the neither the respondent nor his attorneys

have contacted me or the applicant’s attorneys in order to discuss the

outstanding debt and the repayment thereof, either once off or in

installments.

18. I submit that the applicant has exhausted all legal remedies available to it in

order to collect the outstanding debt, and there is no other course of

action left other to bring this application to have the respondent’s estate put

under sequestration.

19. The respondent had ample time to settle the debt, or to make arrangements

for the payment of the outstanding judgment debt, either by way of

installments or otherwise, which he continuously fails to do.

20. I do not know the exact details of the respondent’s asset and liability position,

but in the circumstances I believe that there is sufficient reason to belief that

the sequestration of the respondent’s estate will be to the advantage of the

all of the respondent’s creditors as a body.

21. I further respectfully submit that there are reasonable beliefs that a proper

investigation into the respondent’s affairs by a liquidator may discover assets

for the disposal to the benefit and advantage of the creditors.

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22. I say this on the basis that the respondent is an active member of a close

corporation named XXXXX CC, with registration number 198502/000000/23,

which close corporation is currently still active. Copy of Windeed Director

Report issued by the Companies and Intellectual Property Commission is

attached hereto as ANNEXURE “YA7”.

23. Based on the respondent’s economic activity I submit that there is a

reasonable likelihood that a liquidator may discover money or assets that

can be used to the advantage of the creditors.

24. On this basis I respectfully submit that the granting of an sequestration order

will have the effect that an independent third party can fully investigate the

assets and liabilities of the respondent and make payment to any person

who is a legitimate creditor of the respondent, and also to collect all debts

that may by owed to the respondent by third parties. The possibility of one

creditor preferred over another will be avoided.

25. I am advised, and therefore I respectfully submit that the applicant has made

out a proper case for the sequestration of the respondent’s estate, and

further that it would be proper for an sequestration order to be granted.

26. I confirm that the applicant holds no security over the respondent.
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SERVICE

27. A copy hereof will be served on the Master of the Honourable Court.

28. A copy will also be served on the employee(s), if any, of the respondent at

the respondent’s residential address by affixing a copy hereof on any notice

board, if any, to which such employee(s) have access inside the premises

of the respondent (if the sheriff is allowed such access), or if the sheriff is

refused such access, by affixing a copy hereof to the front gate or door of

such premises.

29. A copy hereof will also be served on the South African Revenue Service at its

head office.

SECURITY

30. Due security has been provided as appears more fully from the Deed of

Surety Signed by the members of the applicant, copy of which is attached

hereto as ANNEXURE “YA8”.

31. A certificate issued by the Master of the High Court to the effect that

sufficient security has been given for the payment of all fees and charges

necessary for the prosecution of all sequestration proceedings and of all

costs of administering the respondent’s in the provisional sequestration

until a provisional liquidator has been appointed, or if no provisional

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liquidator is appointed, of all fees and charges necessary for the discharge

of the respondent from the sequestration, has been requested. The original

certificate will be handed up to the Honourable Court at the hearing of this

application.

CONCLUSION

32. I respectfully submit that a proper case has been made out for the

sequestration of the respondent’s estate. The applicant has exhausted all

available legal remedies available to it and there is no reason why the

respondent’s estate should not be pit under sequestration.

33. I accordingly pray for an order as set out in the Notice of Motion.

____________________
XXXX ABDUL XXXXXX

SIGNED and SWORN to before me at POLOKWANE on this _________day of

OCTOBER 2019 by the Deponent who acknowledge that he knows and

understands the contents of this affidavit, that he has no objection taking the

prescribed oath and considers the prescribed oath as binding on his conscience

and in accordance with the requirements of Regulation R1258 dated 21 July

1972 as amended by Regulation No. R1648 dated 19 August 1977 as further

amended by Regulation No. R1428 dated 11 July 1980.

.

_______________________
COMMISSIONER OF OATHS