REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA 
(WESTERN CAPE HIGH COURT, CAPE TOWN)

Reportable 

In the matter between:

and

THE TRUST FOR THE TIME BEING

KOEN AJ.

[1] This is an application for the provisional sequestration of first Respondent I propose, in this judgment, to refer to him as Mr Vosloo.

[2] The matter has an unusually long history which it is necessary to traverse. It first came before Court by way of an application at the instance of Kuienkampff and Associates on 10 November 2008. The application was opposed and postponed by agreement to 20 November 2008 to enable Mr Vosloo to file an answering affidavit.

[3] On 20 November 2008 the matter was argued before Gauntlett AJ who made an order provisionally sequestrating Mr Vosloo. A provisional order of sequestration returnable on 27 January 2009 was issued.

[5] On 2 February 2009 an order was made regulating the exchange of affidavits. This order also recorded that Kuienkampff and Associates had withdrawn its application having been paid by a third party. Notwithstanding that the Kuienkampff application had been withdrawn, and that neither Mrs Vosloo nor Mr Alexander had been given leave to intervene at that stage, the provisional order was extended until 27 March 2009.

[6] On 10 March 2009 Mr Alexander's application was withdrawn.

[7] On 27 March 2009 the application came before Court again. It was postponed in terms of an order made by the agreement of the parties for hearing on the semi-urgent roll to 10 February 2010. and the provisional order was again extended.

[8] On the same day the third intervening creditor (to which I shall refer as "the Trust") issued an application, set down for hearing at 10h00 that day, for leave to be granted to it to intervene in this application. But the Trust's application never came before, or was considered, by this Court on that day and no order was made in regard to it.

[9] For many months nothing further transpired until, on 27 January 2010. a fourth intervening creditor, Farex CC ("Farex"), launched an application for leave to be granted to it to enter the fray and for a provisional order to made at its instance. Its application was set down for hearing on 10 February 2010.

[10]The next day, 28 January 2010. the Trust delivered a notice stating that its application was also set down for hearing on 10 February 2010. How it came to be assumed that the Trust was entitled simply to enrol the matter on the semi-urgent roll is not explained. A few days later the notice of set down was followed by an application made through the Chamber Book for leave to set down the Trust's application for hearing on 10 February 2010. That the Chamber Book application was made suggests that it was appreciated that the unilateral enrolment of the Trust's application on the semi-urgent roll was irregular.

[12] Because of the unsatisfactory state of affairs regarding the applications made by the Trust and Farex I enquired of counsel for Mr Vosloo whether these applications were opposed. I was informed that this was the case and that answering affidavits would be available later in the day. in respect of the Trust's application, and at a time in the near future in regard to Farex's application.

[14] From the aforegoing it is apparent that of the five applications on behalf of alleged creditors who have sought an order provisionally sequestrating the estate of Mr Vosloo, two have withdrawn their applications and two matters cannot be heard. What remains for consideration, then, is Mrs Vosloo s application Before dealing with the merits of the matter it should be mentioned at this stage, to contextualise the matter, that Mr and Mrs Vosloo are married to each other out of community of property, and that there are presently divorce proceedings pending between them. The antenuptial contract they concluded provides that should either of them be sequestrated then that party would not have a claim against the estate of the other for a share in any accrual in his or her estate. Much was made of this fact, to which I shall later advert, it being contended that Mrs Vosloos prime purpose in seeking an order sequestrating her husband was to deny him a share in any accrual in her estate.

[20] In the first place Mrs Vosloo relies upon a claim for maintenance payable to her in respect of her son. She contends that Mr Vosloo tendered to pay R2000 per month in this regard - this indicating his ability to pay. She also refers to a claim for maintenance for herself, made in the divorce action referred to above. No agreement in respect of maintenance is alleged by Mrs Vosloo, nor is there any Court order in terms of which an amount of maintenance must be paid.

[21] Mrs Vosloo also contends that her husband agreed to pay rates, taxes, electricity and related costs in respect of the immovable property she owns and resides in. He failed to pay these, and she was required to make payment, this giving rise - she alleges - to a claim against him for payment of the amount of R 64 180,62. Mr Vosloo denies such an agreement. He says that he paid these expenses until he ran into financial difficulty and that it was then agreed that Mrs Vosloo would pay these costs.

[23] A fourth claim alleged by Mrs Vosloo relates to loans she says she advanced to Mr Vosloo during 2000 and 2002. In support of this claim she attaches certain cheque stubs which reflect that the loans were made. On the face of it the stubs reflect payments made to Mr Vosloo and the annotation on the certain cheque stubs indicates that these were loans. She also alleges that she lent a further amount of R 6000 in cash to Mr Vosloo during 2005.

[24] Returning to the first of Mrs Vosloo's claims it is settled law that the obligation to pay maintenance is determined by the needs of the person requiring maintenance, and the ability on the part of the person from whom maintenance is claimed to pay it. Because the amount of the claim is not capable of ready ascertainment I cannot see that a claim for maintenance, in the absence of an agreement or order, is a liquidated claim. It follows, in my view, that this claim does not confer upon Mrs Vosloo standing as a creditor in this application.

[32] What remains for consideration is whether, notwithstanding that the requirements of section 10 have been proved, this Court should exercise the discretion vested in it to grant a provisional order of sequestration It will be noted that I have observed that the debts in respect of which Mrs Vosloo has obtained standing as a creditor arose, on her version, during 2000 and 2002 and that these debts have probably prescribed.

[36] I should add that a further consideration which, taken together with the factor mentioned above, persuades me not to make a provisional order of sequestration notwithstanding that the requirements of section 10 have been fulfilled, is that in this case is the claims alleged by Mrs Vosloo are of the kind which would ordinarily be determined in the divorce proceedings currently pending between the parties. There seems to me to be no pressing reason why these disputes should not be taken into account in the resolution of the divorce action between them, as opposed to the disputes being resolved piecemeal in different forums.

[37] Finally, I do not think that the interests of other creditors will be harmed if I refuse to grant an order of provisional sequestration at the instance of Mrs Vosloo. Indeed, their interests will be advanced if it transpires that Mr Vosloo does have a claim to share in any accrual in Mrs Vosloo's estate.

[38] In the circumstances I make the following order:

(1)The applications for leave to intervene made by the third and fourth intervening creditors are struck off the roll; 
(2) The application for leave to intervene made by the first intervening
creditor is dismissed with costs.