Question 1
1.1 Identify the problem / issue that was faced by the court in Magnum Financial Holdings (Pty) Ltd (in liquidation) v Summerly and another NNO 1984 (1) SA 160 (W) and give reasons why the court in this case was satisfied that the applicants had made out a case for the relief sought. (5...
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, Question 1
1.1 Identify the problem / issue that was faced by the court in Magnum Financial Holdings (Pty) Ltd
(in liquidation) v Summerly and another NNO 1984 (1) SA 160 (W) and give reasons why the
court in this case was satisfied that the applicants had made out a case for the relief sought. (5)
The only problem before the court was whether a trust could, at law, be sequestrated.
The reasons why the court was satisfied that the applicants had made out a case for the relief sought
was the following:
There had been sufficient service of the papers on the trustee of the trust.
The one provisional liquidator of the applicant company had locus standi to apply for the
provisional sequestration of the trust estate.
The applicant company had a claim against the trust for about R1.6 million which was due and
payable.
An act of insolvency in terms of section 8(g) had been committed, and the trust estate was also
insolvent.
It was to the advantage of the trust’s creditors that its estate be sequestrated urgently.
Further, the necessary security bond had been duly lodged and also annexed to the court
papers.
1.2 Dumisani approaches you for advice. He informs you that his brother, Benson, owes him R24
000 for gardening services rendered by his company. Dumisani explains to you that despite
various attempts to get Benson to pay his debts, he has yet to make any payment. Dumisani is
especially upset because he has heard a rumour that Benson and his wife have apparently
relocated their home from Johannesburg to Cape Town because his wife is ill and needs medical
treatment at a care facility in Stellenbosch.
Dumisani wants to know from you whether you can assist him to apply for the compulsory
sequestration of Benson’s estate, because his brother has fled from his home and therefore his
responsibilities. Refer to the relevant act of insolvency, including a reference to the relevant
legislation. (10)
Section 9(1) allows proceeding for the compulsory sequestration of a debtor instituted by a
creditor who has a liquidated claim for not less than R100. In terms of the above Dumisani may
apply as he is owed R24 000 from Benson. According to section 8(a) the debtor commits an act
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