NICOLAAS BEKKER -vs- JOHANNES PHILLIP KOTZE & 6 OTHER.
of foreign provisional trustee by Court - doubtful whether this is
possible before trustee's appointment final. Vesting of movable
property - such takes places also in other jurisdictions if
insolvent was domiciled within jurisdiction of Court declaring
him insolvent at time of such order.
PHILLIP KOTZE & 6 OTHERS
on: 1994/12/06,08 Delivered on: 1994/12/08
was an urgent application for the relief set out in the Notice of
application followed upon a provisional sequestration of the common
estate of the first and second Respondents in the Republic of South
application before me was argued by Ms Viviers-Turck, Mr Grobler
appeared on behalf of the first and the second Respondents. No
answering affidavits were filed by the Respondents, neither was the
Court asked for a postponement to afford Respondents an opportunity
to file any documents. However, both parties freely made use
of affidavits and
documents previously filed in this Court and in the Court in South
Africa. From the allegations in these documents it was alleged that
the First Respondent had defrauded the Government of the Republic of
South Africa to the tune of some R23 914 752,11 by falsely
recovering value added tax on bogus purchases of mining machinery.
When this was discovered, application was made for a writ
However, by then the First Respondent had already moved to Namibia.
In moving to Namibia the First Respondent brought with him various
movable assets as well as money.
and on the 11th October 1994 the common estate of First and Second
Respondents were provisionally sequestrated in the Republic of South
Africa and the Applicant was appointed as a provisional trustee.
This sequestration was at the behest of the Receiver of Revenue.
upon this sequestration, the Applicant as provisional trustee in the
estate, asked and obtained orders in this Court whereby he was
recognised as provisional trustee in the estate and whereby all
assets of First and Second Respondents in Namibia vested in him as
provisional trustee. The Applicant by way of Rules
also asked for the attachment of various movables and interdicted
the other Respondents from dealing with any money which the First
Respondent had allegedly paid into their banking accounts.
attempt was made by the First Respondent to set aside the order by
Teek, J, and more particularly the order whereby
the Applicant was recognised in Namibia as a provisional trustee in
the estate. If successful this would have brought about the collapse
of the Applicant's case. The application was however refused. The
was confirmed and an appeal was lodged to the Full Bench of this
Court. This is due to be heard on the 8th December 1994.
on the 28th November 1994 the provisional sequestration order
obtained by the Receiver of Revenue in the TPD was discharged on a
ground of lack of locus
This had the effect of taking away the sub-stratum on which the
orders made by my brother Teek were founded. An application was then
launched by First Respondent to set aside the orders made by my
brother Teek, this application will also be heard on the 8th
December. However, both counsel were agreed that there is no way in
which the orders given by my brother Teek can survive the discharge
of the sequestration order in South Africa. These orders had then
also been set aside by me this morning.
the 1st December 1994 the common estate of the First and Second
Respondents was again provisionally sequestrated, this time at the
behest of the Government of South Africa. Following upon this the
Applicant was again appointed as provisional trustee in the estate
and the application now brought by him in this Court is
substantially the same as previously brought before my brother Teek
although the prayers set out in the Notice of Motion are now more
carefully framed as part of a Rule
and not as a final order except for prayer 2 which again ask for an
out and out
that all the movable assets in Namibia vest in the applicant.
Various points were argued by counsel. I myself have serious doubts
whether this Court can at this stage, bearing in mind that the
Applicant was appointed as a provisional trustee on a provisional
sequestration order, recognise such appointment. It seems to me that
the previous recognition which was based on a provisional
sequestration order clearly demonstrated why a Court would only
recognise final orders by a foreign court.
therefore seems to me that this application turns on a question
whether the Respondents, when the provisional sequestration was
given in the TPD, were domiciled within the jurisdiction of that
Court or not. Where the sequestration order was given by the Court
of the debtors domicile movables, wherever situated, vest in the
trustee and in my opinion also in the provisional trustee. See
Section 18(3) and 54(5) of Act 24 of 1936; and see further Mars,
Law of Insolvency,
8th ed. p. 133 paragraph 7.5.
far as the vesting of movables are concerned, Mars, in my view
correctly sums up the law as follows:
common law, therefore, a sequestration order
has no effect per
on immovable property
situated in a foreign country. Such
remain vested in the insolvent. But in regard
movables, the situation is different. A
order granted by the Court of the debtors domicile ipso
divest the insolvent of all his movable property, wherever situated,
but a sequestration order granted by any other
no operation on the debtors assets, whether movable or immovable,
situated out of such Court's jurisdiction."
in this regard, Mars, opus
p. 177 and see further Viljoen
N.O. 1981(2) SA 152, (W.L.D) at 155B.
regards the issue of First Respondent's domicile this must be
determined on all the evidence, as was stated by Jansen, J (as he
then was), in Massey
1962(2) SA 199 at 200:
of an interested party in these circumstances should be carefully
purposes of this question I will accept the various affidavits which
were by consent placed before me. In paragraph 4
his answering affidavit in the first application, First Respondent
stated that he is a Namibian citizen by birth and that he was
residing in Namibia with the intent to make it his permanent home.
He further went on to state that it is his intention to buy a farm
in Namibia and that the vehicles brought by him were brought with
the purpose of using them on this farm. He furthermore stated that
he did not flee South Africa but moved here in the normal way to
this the Applicant replied that there was still no fixed address in
Namibia where he could contact the First Respondent and the
documents still had to be served on his
To this was added that the First Respondent spent the greater part
of his adult life in the RSA. All documentation that the applicant
could find indicate that First Respondent was a South African
citizen. It was further also pointed out that First Respondent is
also not employed in Namibia.
is furthermore also clear from documents filed by the First
Respondent himself that the bulk of his estate is in the Republic of
South Africa. The Court was further informed by Mr Grobler that the
wife of the First Respondent, the Second Respondent herein, is also
still in the RSA.
into consideration the circumstances under which the First
Respondent came to Namibia, the fact of his physical presence in
Namibia cannot be seen as a voluntary move to Namibia with the view
of settling here. Notwithstanding the First Respondent's assurances
that this was just a normal move to Namibia, evidence in my opinion
is overwhelming that he left South Africa because he knew of the
risks involved if he should remain there. This is further confirmed
by the fact that, as shown out by the Applicant, no prior
arrangements were made to obtain property etcetera or was given in
evidence by the Respondent. There is also the issue of the various
amounts which were concealed by paying them into the accounts of
third parties and which were left unexplained by the First
that he intends to buy a farm in Namibia and
to stay here permanently was countered by the fact that he tried to
sell the very vehicles which he said were earmarked for such a farm.
It seems furthermore from his affidavit handed in by Mr Grobler that
he is adamant that he is not insolvent and that he is confident that
the problems which he is presently facing can be taken care of in
all the evidence I am therefore satisfied that the Applicant has at
established that the First and Second Respondent were at the time of
sequestration of their common estate still domiciled in the Republic
of South Africa.
this it follows as already previously set out, that the movable
assets of the common estate, also those in Namibia, vest in the
Applicant, and that as a result thereof he has the necessary locus
to bring this application. In the circumstances it is also not
necessary for this Court to recognise him as a provisional trustee.
As far as recognition is concerned, it is stated by Mars,
at p. 178 as follows:
necessity for recognition will always exist if the insolvent has
immoveables in a foreign jurisdiction, but in the case of his having
movables there, only if the order of sequestration has been granted
by some Court other than that of his domicile."
vesting of such movables follows by operation of law, and it is
therefore also not necessary for me to make such an order. If the
provisional sequestration is confirmed and
this applicant is appointed as trustee in the estate he must then
ask for recognition to deal with such assets. For purposes of this
application this is however not necessary.
Parte Palmer NO:
IN RE Hahn
have not dealt with counsel's arguments re the recognition of the
provisional trustee and the arguments around the definition that
Republic also includes the mandated territory of South West Africa
because of the conclusion to which I have come on the other point.
As regards Mr Grobler's argument that this application is premature,
the submission is in my opinion without any substance. Counsel were
agreed that nothing could extend the order which will be set aside
on the 8th.
it is, this judgment will only be given on the 8th
the Applicant is duty bound to safeguard the interest of creditors.
am also further satisfied that a prima
case was made out by the Applicant against all the Respondents for
the relief set out hereunder, namely:
non-compliance with the rules of this Court is condoned.
is hereby issued calling upon all the Respondents to show cause on
or as soon thereafter as counsel can be heard why -
and authority should not be granted to the Applicant
in terms of Section 18(3)
such legal steps to receive and/or freeze movable assets which
belong to the estate of the First and Second Respondents (now under
movables already attached in terms of the Rule
granted on 21st October 1994 should not remain under the attachment
for the purposes of this application;
the money or funds of the First and Second Respondents, held in
various bank accounts of the First and the Second Respondents, and
already attached in terms of the Court orders dated 21st October
1994 and 1st November 1994, should not remain under the attachment
for the purposes of this application;
Third and/or Fourth Respondent should not be interdicted and
restrained from withdrawing the amount of N$99 530 from his/her
bank account held with the Sixth Respondent's branch in Swakopmund
or transfer or deal in any manner with the amount of N$99 530 (or
.5 The Sixth Respondent should not be interdicted from transferring
and/or dealing in the amount of N$99 53 0 (and interest) in it's
Swakopmund branch in the name of Third and Fourth Respondents;
The Fifth Respondent should not be interdicted and restrained from
transferring, dealing or drawing the
of N$l 180 000, (and further interest thereon) held in his bank
account with Seventh Respondent;
Seventh Respondent should not be interdicted from transferring or
dealing in any manner with the amount of N$l 180 000 (and further
interest thereon) at present held in the account of the Fifth
amounts of N$99 530 and N$l 180 000 (together with further interest
thereon) in the bank accounts of Third, Fourth and Fifth
Respondents with the Sixth and Seventh Respondent's branches in
Swakopmund should not be attached.
order set out in prayers 2.1 to 2.8 shall serve as an interim
interdict pending the finalization of this application and the
appointing and recognition of the trustee to administer the joint
estate of the First and Second Respondents.
is hereby granted to the Applicant herein, and in the event that he
is appointed as trustee in the aforesaid insolvent estate in terms
of the provisions of Act 24 of 1936, to approach this Court, upon
notice thereto to First and Second Respondents on the same papers,
amplified if necessary for the relief set out in paragraphs A, B, C
and D of the Notice of Motion.
the orders were given Mr Grobler informed the Court that the Second
Respondent herein is presently residing in
accept th• ^