MRL3701 - STUDY UNIT 4 (COMPLETE ANSWERS) SEMESTER 1 2025 |
VERIFIED|
LIQUIDATED CLAIM - CORRECT ANSWER-Is a monetary claim - a claim for transfer of property,
for instance, does not give locus to apply, the amount which is fixed by agreement, judgment, or
otherwise.
EXAMPLES OF LIQUIDATED CLAIMS - CORRECT ANSWER-1. claim for the price of goods sold and
delivered (KATHRADA BROS V ASMAT)
2. claim based upon a provisional sentence judgement (MESKIN V AMOD)
3. a claim for return of the price paid under a sale which has been cancelled due to the sellers
repudiation (BAGATLA BA MAKAU TRIBE)
4. Delictual claim for the theft of a fixed and determinable sum of money (Premier Western
Cape & Others v Parker & Mohammed & Others)
REQUIREMENTS - CORRECT ANSWER-Court must be satisfied:
1. The applicant has established a claim which entitles him, in terms of s9(1) to apply for
sequestration of the debtor's estate.
2. the debtor has committed an act of insolvency or is insolvent
3. there is reason to believe that it will be to the advantage of creditors of the debtor if his
estate is sequestrated (s12(1))
ONUS of satisfying court on these three matters rests throughout on the sequestrating creditor.
APPLICANT ENTITLED TO APPLY IN TERMS OF s9(1) - CORRECT ANSWER-Proceedings for the
compulsory sequestration of debtors estate to be instituted by:
a. creditor or his agent who has a liquidated claim against the debtor for not less than R100
b. two or more creditors or their agents who have liquidated claims against the debtor
amounting, in aggregate, to not less than R200.
,Agent must be authorized to do so prior to bringing the application. Applicants lack of authority
cannot be cured by ratification once the application has been launched (SOUTH AFRICAN
MILLING CO v REDDY.
EXAMPLES OF UNLIQUIDATED CLAIMS - CORRECT ANSWER-1. damages for failure to carry out
obligations in terms of a consent paper (EX PARTE BRUCE)
2. claim for payment of an untaxed attorney and client bill of costs (SIMPSON & LIESCHING V
VAN BREDA)
SECTION 9(2) - CORRECT ANSWER-Provides that a liquidated claim which has accrued but which
is not yet due by the time the application is heard must be regard as liquidated for these
purposes.
PROVISIONALLY SEQUESTRATED - CORRECT ANSWER-Debtor himself cannot make a payment to
the sequestrating creditor so as the extinguish the latters claim or reduce it below R100
(VENTER v VAN GRAAN)
third party such as surety, may make payment on the debtor's behalf and if the payment
extinguishes the claim or reduces it to less than R100 the provision order must be discharged
(JOHANNSBURG LIVESTOCK CO V HERR)
Creditor is not entitled to refuse payment in full - but may reject part payment by a third person
Where the sequestrating creditor's locus standi is eliminated by a payment, another creditor
may intervene and apply for a further provisional order of sequestration to be granted on
discharge of the first order.
, The 2 acts although separate are not independent of each other.
The second act applies only if the first cannot be established.
NEDBANK v NORTON - CORRECT ANSWER-If the sheriff on serving the writ, neglects to demand
satisfaction of the writ by the debtor and thereafter simply states in the return that he was
unable to find sufficient disposable property, no act of insolvency is committed.
DICKS V MARAIS - CORRECT ANSWER-If debtor fails on demand to satisfy the judgement or
indicate sufficient disposable property, it is irrelevant whether or not the sheriff subsequently
finds disposable property sufficient to satisfy the judgement.
INDUSTRIAL HOLDINGS PTY LTD v ROBERTS t/a PREMIER TIMBER & TRADING - CORRECT
ANSWER-The judgement must be against the debtor in his own name and not in the name of a
firm of which he is the sole proprietor.
BEIRA V RAPHAELY-WEINER - CORRECT ANSWER-The writ need not be served on the debtor at
his residence or place of business: s 8(B) requires only personal service and does not say where
the service must take place.
TO INDICATE PROPERTY NATHAN & CO v SHEONANDAN - CORRECT ANSWER-Debtor should tell
sheriff what the property is and where it is with enough particularity to demonstrate its
sufficiency and enable the sheriff to attach and sell it
TEWARI V SECURA INVESTMENTS - CORRECT ANSWER-Disposable property - does not include
immovable property which has been mortgaged, even, it seems, where the value of the
property considerably exceeds the amount owing under the mortgage bond.
WESTERN BANK LTD v ELS - CORRECT ANSWER-If applicant is the first mortgagee of the
immovable property, it is regarded as disposable.
VERIFIED|
LIQUIDATED CLAIM - CORRECT ANSWER-Is a monetary claim - a claim for transfer of property,
for instance, does not give locus to apply, the amount which is fixed by agreement, judgment, or
otherwise.
EXAMPLES OF LIQUIDATED CLAIMS - CORRECT ANSWER-1. claim for the price of goods sold and
delivered (KATHRADA BROS V ASMAT)
2. claim based upon a provisional sentence judgement (MESKIN V AMOD)
3. a claim for return of the price paid under a sale which has been cancelled due to the sellers
repudiation (BAGATLA BA MAKAU TRIBE)
4. Delictual claim for the theft of a fixed and determinable sum of money (Premier Western
Cape & Others v Parker & Mohammed & Others)
REQUIREMENTS - CORRECT ANSWER-Court must be satisfied:
1. The applicant has established a claim which entitles him, in terms of s9(1) to apply for
sequestration of the debtor's estate.
2. the debtor has committed an act of insolvency or is insolvent
3. there is reason to believe that it will be to the advantage of creditors of the debtor if his
estate is sequestrated (s12(1))
ONUS of satisfying court on these three matters rests throughout on the sequestrating creditor.
APPLICANT ENTITLED TO APPLY IN TERMS OF s9(1) - CORRECT ANSWER-Proceedings for the
compulsory sequestration of debtors estate to be instituted by:
a. creditor or his agent who has a liquidated claim against the debtor for not less than R100
b. two or more creditors or their agents who have liquidated claims against the debtor
amounting, in aggregate, to not less than R200.
,Agent must be authorized to do so prior to bringing the application. Applicants lack of authority
cannot be cured by ratification once the application has been launched (SOUTH AFRICAN
MILLING CO v REDDY.
EXAMPLES OF UNLIQUIDATED CLAIMS - CORRECT ANSWER-1. damages for failure to carry out
obligations in terms of a consent paper (EX PARTE BRUCE)
2. claim for payment of an untaxed attorney and client bill of costs (SIMPSON & LIESCHING V
VAN BREDA)
SECTION 9(2) - CORRECT ANSWER-Provides that a liquidated claim which has accrued but which
is not yet due by the time the application is heard must be regard as liquidated for these
purposes.
PROVISIONALLY SEQUESTRATED - CORRECT ANSWER-Debtor himself cannot make a payment to
the sequestrating creditor so as the extinguish the latters claim or reduce it below R100
(VENTER v VAN GRAAN)
third party such as surety, may make payment on the debtor's behalf and if the payment
extinguishes the claim or reduces it to less than R100 the provision order must be discharged
(JOHANNSBURG LIVESTOCK CO V HERR)
Creditor is not entitled to refuse payment in full - but may reject part payment by a third person
Where the sequestrating creditor's locus standi is eliminated by a payment, another creditor
may intervene and apply for a further provisional order of sequestration to be granted on
discharge of the first order.
, The 2 acts although separate are not independent of each other.
The second act applies only if the first cannot be established.
NEDBANK v NORTON - CORRECT ANSWER-If the sheriff on serving the writ, neglects to demand
satisfaction of the writ by the debtor and thereafter simply states in the return that he was
unable to find sufficient disposable property, no act of insolvency is committed.
DICKS V MARAIS - CORRECT ANSWER-If debtor fails on demand to satisfy the judgement or
indicate sufficient disposable property, it is irrelevant whether or not the sheriff subsequently
finds disposable property sufficient to satisfy the judgement.
INDUSTRIAL HOLDINGS PTY LTD v ROBERTS t/a PREMIER TIMBER & TRADING - CORRECT
ANSWER-The judgement must be against the debtor in his own name and not in the name of a
firm of which he is the sole proprietor.
BEIRA V RAPHAELY-WEINER - CORRECT ANSWER-The writ need not be served on the debtor at
his residence or place of business: s 8(B) requires only personal service and does not say where
the service must take place.
TO INDICATE PROPERTY NATHAN & CO v SHEONANDAN - CORRECT ANSWER-Debtor should tell
sheriff what the property is and where it is with enough particularity to demonstrate its
sufficiency and enable the sheriff to attach and sell it
TEWARI V SECURA INVESTMENTS - CORRECT ANSWER-Disposable property - does not include
immovable property which has been mortgaged, even, it seems, where the value of the
property considerably exceeds the amount owing under the mortgage bond.
WESTERN BANK LTD v ELS - CORRECT ANSWER-If applicant is the first mortgagee of the
immovable property, it is regarded as disposable.
