THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT

Reportable
Case No:126/2021

In the matter between:

LIBERTY GROUP LIMITED                                                                    APPELLANT

and

MOHAMMED SHAAZ MOOSA                                                            RESPONDENT

Neutral Citation:
Liberty Group Limited v Moosa (126/2022) [2023] ZASCA 52 (14
April 2023)

Coram:
PONNAN ADP and MBATHA, MOTHLE, MEYER and MOLEFE JJA

Heard:
17 March 2023

Delivered:    14 April 2023

Summary:  Appealability – Insolvency Act 24 of 1936 – whether an order dismissing
an application for provisional sequestration is an order of court in terms of s 150 and
thus not appealable.

___________________________________________________________________
ORDER
___________________________________________________________________

On appeal from: KwaZulu-Natal Division of the High Court, Pietermaritzburg (Gani
AJ, sitting as a court of first instance):
Leave to appeal is granted.
The appeal is upheld with costs, such costs to include the costs of the
application for leave to appeal in both this Court and the high court.
In each instance, the costs shall include those of two counsel, where so
employed.
The order of the high court is set aside and in its stead is substituted the
following:
‘(a) The estate of the respondent is placed under provisional sequestration
in the hands of the Master of the high court;
(b) The respondent is called upon to advance reasons, if any, on Tuesday
30 May 2023 at 10h00, why the court should not order the final
sequestration of his estate.’
___________________________________________________________________

JUDGMENT
___________________________________________________________________

Ponnan ADP and Meyer JA (Mbatha, Mothle and Molefe JJA concurring):

[1] This is an application for leave to appeal and, if granted, the determination of
the appeal itself. The two judges who considered the application referred it to oral
argument in terms of s 17(2)(d) of the Superior Courts Act 10 of 2013. As it was put in
Body Corporate of Marine Sands v Extra Dimensions 121(Marine Sands):
‘. . . Different considerations come into play when considering an application for leave to
appeal as compared to adjudicating the appeal itself. As to the former, it is for the applicant to
convince the court that it has a reasonable prospect of success on appeal. Success in an
application for leave to appeal does not necessarily lead to success in the appeal. Because
the success of the application for leave to appeal depends, inter alia, on the prospects of
eventual success of the appeal itself, the argument on the application would, to a large extent,
have to address the merits of the appeal. Here, inasmuch as the appeal raises a point of
statutory interpretation, the application had to succeed. On that score, the high court has

spoken and, absent an appeal, those judgments will continue to apply. Future litigants are
entitled to the benefit of this court’s view on the question. In the circumstances we considered
it appropriate, at the hearing of the application, to grant leave to the applicant, who will
henceforth be referred to as “the appellant”, to proceed with the appeal. That opens the door
to a full consideration of the merits of the appeal itself.’ 1

[2] As this matter also raises a point of statutory interpretation, the approach
followed in Marine Sands commends itself in this instance as well. The question that
we are required to resolve is whether an appeal against the refusal of a provisional
order of sequestration is precluded by s 150(5) of the Insolvency Act 24 of 1936 (the
Act). Section 150(5) reads:
‘There shall be no appeal against any Order made by the court in terms of this Act,
except as provided in this section’.
Section 150(5) must be read with s 150(1), which provides:
‘Any person aggrieved by a final order of sequestration or by an order setting aside an order
of provisional sequestration may, subject to the provisions of section 20 (4) and (5) of the
Supreme Court Act, 1959 (Act 59 of 1959), appeal against such order.’

[3] The appeal lies against the order of Ganie AJ in the KwaZulu-Natal Division of
the High Court, Pietermaritzburg (the high court) dismissing with costs the application
by the appellant, Liberty Group Limited (Liberty), for the provisional sequestration of
the estate of the respondent, Mr Mohammed Shaaz Moosa (Mr Moosa). The high court
thereafter dismissed an application by Liberty for leave to appeal on the basis that its
order is, in terms of s 150(5) of the Act, not appealable. In that, reliance was placed
by the high court, inter alia, on the decision of Van Reenen J of the Cape Provincial
Division in Gottschalk2 and the Full Court of the Natal Provincial Division in
Lawclaims.3 Those decisions, in turn, found support for that proposition in Bhamjee,4
a Full Court decision of the Transvaal Provincial Division, as well as the views of
various textbook writers.5

1 Body Corporate of Marine Sands v Extra Dimensions 121 (Pty) Ltd [2019] ZASCA 161 para 1.
2 Gottschalk v Gough [1996] 4 All SA 614 (C); 1997 (4) SA 562 (C) (Gottschalk).
3 Lawclaims (Pty) Ltd v Rea Shipping Co SA: Schiffscommerz Aussenhandelsbetrieb der VVB Schiffbau
Intervening [1979] 2 ALL SA 389 (N); 1979 (4) SA 745 (Lawclaims).
4 Bhamjee Ltd v Van Harte [1959] 4 All SA 106 (T); 1959 (4) SA 174 (Bhamjee).
5 H Edward Mars: The Law of Insolvency in South Africa 6 ed (1968) at 130; E de la Rey Mars: The
Law of Insolvency in South Africa 8 ed (1988) at 126; C Smith The Law of Insolvency 3 ed (1973) at
312 and P M Meskin and J A Kunst Insolvency Law (1994) at 2-47 para 2.2.

[4] The question in this appeal, therefore, is whether the decision, which forms the
subject of this appeal, is an ‘order made . . . in terms of [the Act] . . .’ If it is, no appeal
lies. If not, the converse would be the case.

[5] In Ex parte Crous 1939 AD 334 at 335, Centlivres CJ stated:
‘It will be sufficient for the purposes of this case to say that an appeal will lie, unless any law
specially (uitdruklik) limits the right of appeal. For any such possible limitation we must look at
Act 24 of 1936. Subsection (1) of s 150 of that Act grants a right of appeal against a final order
of sequestration or an order setting aside an order of provisional sequestration. No mention is
made of appeals against an order refusing an application for a provisional order of
sequestration or voluntary surrender. The mere fact that s 150 is silent as to appeals from a
refusal to accept voluntary surrender or a refusal to grant a provisional order of sequestration
does not expressly negative the right of appeal in such cases.’

[6] Section 150(5) of the Act came to be inserted with effect from 6 April 1943, by
way of s 35 of the Insolvency Law Amendment Act 16 of 1943. Bhamjee is the first
reported decision to have had occasion to consider the effect of the amendment. In an
all too brief judgment, it reached the conclusion, without more, that an appeal was
effectively barred by ss 150(1) and (5). In that regard it held:
‘. . . On the 25th November last year an application by the appellant for the provisional
sequestration of the respondent’s estate was refused by CLAASSEN, J. Against that order the
appellant now appeals. Since the notice of appeal was lodged notice was given by the
respondent that a preliminary point would be taken at the hearing of the appeal that no appeal
lies against the order granted by CLAASSEN, J. . . because of the terms of sec. 150 of the
Insolvency Act, and with particular reference to the amendment of that section which was
introduced by Act 16 of 1943 which added a new sub-sec. (5).
This Court has no doubt that the point is well taken, and the appeal is consequently struck off
the roll.’6

[7] Bhamjee was followed by Lawclaims, in which the full court observed:
‘While it is true that s 150 (5) has been interpreted as laying down that no right of appeal exists
against an order refusing such an application. . . there seems to be a clear distinction between
a decision on the merits of the case (eg whether an act of insolvency has been established or
whether sequestration would be to the benefit of creditors) and a decision based on the

6 Bhamjee fn 4 above at 174F-G.

question whether the Court has jurisdiction to hear the case at all. In the former case there
can be no doubt that the decision to refuse an order of liquidation would not be appealable as
the order was clearly made in terms of the Act.’7

[8] In Lawclaims, the appellant had applied unsuccessfully for an order placing the
respondent under provisional liquidation. In the alternative, it applied for its
sequestration, which was also refused. The court of first instance (Thirion J) had
dismissed both applications because it had come to the conclusion that it did not have
jurisdiction to either wind-up or liquidate the respondent. On appeal it was contended
that the decision was not appealable. It is in this context, that the dictum must be
viewed.

[9] Later, the full court added:
‘However, whether Thirion J’s decision is appealable or not is, to a large extent, academic in
the present case since the appellant, with the consent of the intervening creditor, has filed a
fresh application for the winding-up or alternatively sequestration of Rea Shipping and at the
request of the parties this Court has undertaken, if need be, to consider this fresh application
because the case involves enormous sums of money and difficult questions of jurisdiction
which require speedy solution.’8

[10] Bhamjee and Lawclaims culminated in Gottschalk, where Van Reenen J
recorded:
‘When the matter was called Advocate D Williams, who appeared for the respondent, in limine,
and relying on the provisions of ss (1) read with ss (5) of s 150 of the Insolvency Act 24 of
1936 (hereinafter referred to as “the Act”), contended that the dismissal of an application for a
provisional order of sequestration is not appealable. As authority for that proposition he relied
on a Full bench decision of the Transvaal Provincial Division, namely Bhamjee Ltd v Van Harte
1959 (4) SA 174, as well as the views of textbook writers on the law of insolvency, namely
Mars The Law of Insolvency in South Africa 8th ed by Elmarie de la Rey at 126; Catherine
Smith The Law of Insolvency 3rd ed at 312; and Philip M Meskin Insolvency Law at 2 – 47 para
2.2.’9

7 Lawclaims fn 3 above at 749E-F.
8 Ibid at 750E-F.
9 Gottschalk fn 2 above at 563F-G.

[11] After setting out ‘the historical matrix against which s 150 of the Act has to be
viewed’, the learned judge then observed at 565F in Gottschalk:
‘Section 150 does not expressly provide for a right of appeal against an order dismissing an
application for a provisional order of sequestration. Accordingly, such an order would be
appealable only if it is not encompassed by the provisions of ss 150(5) of the Act. . ..’

[12] Van Reenen J later added:
‘As the dismissal of the application, which forms the subject-matter of this application, was a
decision given upon relief claimed in an application on notice of motion, there can be little
doubt that it is an order, within the meaning thereof in s 150(5) of the Act. . ..’10

[13] On this survey, the proposition, so it would seem, can be traced back to
Bhamjee. None of the textbook writers thereafter added anything to the point. On the
authority of Bhamjee, each did no more than merely assert that an order refusing a
provisional application of sequestration is not appealable. In a fashion, the unreasoned
conclusion reached in Bhamjee, which was uncritically adopted thereafter by the
various textbook writers, then took root. This, against the background that the question
had already been settled by Centlivres CJ in Ex parte Crous, prior to the 1943
amendment. Bhamjee seems to have approached the enquiry on the footing that the
amendment, which had the effect of negativing the right of appeal, was not capable of
more than one meaning. If, however, the language of the provision is to be regarded
as uncertain regard had to be had to certain interpretive aids, such as, amongst others,
that in cases of doubt the most beneficial interpretation is to be preferred11 or that the
legislature does not intend to alter the existing law more than necessary.12 The
purpose, particularly of the latter, being to enhance certainty.13

[14] Gottschalk has suggested that ‘the insertion of s 150(5) . . . probably was as a
result of [the Ex parte Crous] decision’.14 Even on the acceptance of that hypothesis,

10 Ibid at 567F.
11 Arenstein v Secretary for Justice 1970 (4) SA 273 at 281A-D. Cornelissen v Universal Caravan Sales
(Pty) Ltd 1971 (3) SA 158 at 175C.
12 In the words of Wessels J in Casserley v Stubbs 1916 TPD 310 at 312: ‘It is a well-known canon of
construction that we cannot infer that a statute intends to alter the common law. The statute must either
explicitly say that it is the intention of the legislature to alter the common law, or the inference from the
Ordinance must be such that we can come to no other conclusion than that the legislature did have
such an intention.’
13 Bestuursliggaam van Gene Louw Laerskool v J D Roodtman [2000] ZAWCHC 2.
14 Gottschalk fn 2 above at 564G.

it is unclear why the legislature would have chosen to negative the right of appeal or
put a red line through what was said in Ex parte Crous. As importantly, why it would
have elected to do so in the manner chosen. It is so that ‘section 150 does not
expressly provide for a right of appeal’.15 Nor, does it expressly exclude it. That
notwithstanding, Gottschalk seems to have inferred from the historical matrix and the
terms of the amendment that there was ‘a clear legislative intent to limit, rather than
extend, appeals’.16 Whether such an inference was indeed a necessary one in the
circumstances, and not merely a possible one, may require further examination.17

[15] One can hardly quarrel with the observation in Gottschalk that ‘the dismissal of
the application . . . [is] a decision given upon relief claimed in an application on notice
of motion’. However, it does not necessarily follow therefrom that ‘there can be little
doubt that it is an order within the meaning thereof in s 150(5)’. It is important to
distinguish the nature of relief sought (in other words the nature of the application)
from the relief actually granted. An applicant undoubtedly sets out to make out a case
for relief in terms of the Act. If successful, the Act would thereafter find application. If
unsuccessful, it plainly would not. In dismissing the application, a court surely signifies,
not just that the applicant is not entitled to any relief in terms of the Act, but also that
the attempt to invoke the Act has failed. Consequently, in dismissing the application a
court is effectively telling an applicant that its attempt to bring themselves within the
purview of the Act has not been successful. And, what is more, on account of the
applicant’s failure to make out a proper case in terms of the Act, its provisions will no
longer apply to or regulate the conduct of any further proceedings, including any
appeal.

[16] There appear to be several additional considerations that detract from the
tenability of the conclusion reached in Bhamjee and the cases that followed it. First,
the conclusion reached in those matters is inconsistent with the principle that the
dismissal of an application, whether for final or interim relief, is in general appealable.
In that regard, the order here has all three of the attributes alluded to in Zweni.18 Even,

15 Ibid at 565 E-F.
16 Ibid.
17 As it was put in Kent NO v SA Railways and Another 1946 AD 398 at 405: ‘the inference must be a
necessary one not merely a possible one’.
18 Zweni v Minister of Law and Order 1993 (1) SA 523 (A) at 532I-533A:

if it did not, it has come to be accepted that it ‘would nevertheless qualify as an
appealable decision if it had a final and definitive effect on the proceedings or if the
interests of justice required it to be regarded as an appealable decision’.19 No reason
appears to suggest itself as to why the legislature would have singled this order out
as the exception to this general rule.

[17] Second, the dismissal of an application for a provisional order of liquidation is
appealable.20 In both sequestration and liquidation proceedings, the legal machinery
which comes into operation is designed to ensure that whatever assets the debtor has
are liquidated and distributed among all the creditors in accordance with a fair order
of preference. Once a provisional order is granted, in either instance, a concursus
creditorum is established. As it was put in Walker v Syfret NO: ‘[t]he sequestration
order crystallises the insolvent’s position; the hand of the law is laid upon the estate,
and at once the rights of the general body of creditors have to be taken into
consideration.’21 It is therefore difficult to appreciate why the dismissal of an application
for a provisional order of liquidation would be appealable, but not its counterpart, the
order, the subject of this appeal.22

[18] Third, s 150(1) provides that ‘an order setting aside an order of provisional
sequestration’ is appealable. It is difficult to reconcile the express recognition of a right
of appeal in that instance with the denial of an appeal in this. Both stand on the same
footing. Consequently, there can be no rational basis for the distinction between the
two. As a matter of principle, an interim order, particularly one that is made ex parte,
is by its nature provisional – it is ‘conditional upon confirmation by the same court
(albeit not the same Judge) in the same proceedings after having heard the other
side’,23 which is why a litigant who secures such an order is not better positioned when

‘A “judgment or order” is a decision which, as a general principle, has three attributes, first, the decision
must be final in effect and not susceptible of alteration by the Court of first instance; second, it must be
definitive of the rights of the parties; and, third, it must have the effect of disposing of at least a
substantial portion of the relief claimed in the main proceedings.’
19 DRDGOLD Limited and Another v Nkala and Others [2023] ZASCA 9 para 23.
20 Kalil v Decotex (Pty) Ltd and Another [1988] 2 All SA 159(A); 1988 (1) SA 943 (A) at 964B-D.
21 Walker v Syfret NO 1911 AD 141.
22 This inconsistency was acknowledged in Gottschalk at 568E-F. There, the learned judge correctly
observed:
‘No reason is apparent to me for such an inconsistency between sequestration and winding-up
proceedings.’
23 MV Snow Delta: Serva Ship Ltd v Discount Tonnage Ltd 2000 (4) SA 746 (SCA) para 6.

the order is reconsidered on the return day.24 Why then would an applicant, whose
provisional order has been set aside, enjoy a right of appeal, but not one whose
application for a provisional order has been dismissed? The answer may well lie in the
fact that whilst a provisional sequestration order is one made by the court in terms of
the Act, an order dismissing an application for a provisional order, as we have
endeavoured to show, is not such an order. No warrant seems to otherwise exist for
the differential treatment.

[19] In other words, in recognition of the fact that the grant of a provisional
sequestration order (unlike the dismissal of an application for a provisional
sequestration order) is one that ‘is made by the Court in terms of [the] Act’ within the
meaning thereof in s 150(5), it was necessary for the legislature to expressly provide
for a right of appeal in respect of such an order. If it is accepted that an order dismissing
an application for a provisional order of sequestration is not one encompassed by the
provisions of s 150(5) of the Act then, it must follow, that it was not necessary for the
legislature to have expressly provided for a right of appeal against that order.

[20] To sum up: first, the provision is capable of more than one meaning; and,
second, the denial of the right of appeal is not a necessary inference from the terms
of the amendment, particularly when regard is had to the relevant interpretive aids
already alluded to. It would thus seem that the only sensible and businesslike
construction to be placed on the provision is that an order dismissing an application
for a provisional sequestration order is not ‘an order made by a Court’ as contemplated
by s 150(5) of the Act. To hold otherwise would give rise to the various absurd
anomalies alluded to. Moreover, sight cannot be lost of the fact that consideration must
also be given to whether the provision can be read in a manner that is consistent with
the Constitution. On the construction favoured here, unlike in Bhamjee, Lawclaims and
Gottschalk, there would be no denial or curtailment of a litigant’s right of appeal. Whilst
it is open to an applicant to file a fresh application, that does not avail the present
appellant, who can place nothing new before the court. This means that the final word
has been spoken on the application. In the circumstances, the denial of a right of

24 Mulaudzi v Old Mutual Life Insurance Company (South Africa) Limited and Others, National Director
of Public Prosecutions and Another v Mulaudzi [2017] ZASCA 88; [2017] 3 All SA 520 (SCA); 2017 (6)
SA 90 (SCA) para 71.

appeal may well mean that an obviously wrong judgment on the merits would not be
open to correction. That would hardly be in the interests of justice and likely not be
countenanced by the Constitution, leaving as it does, a litigant in the position of the
present appellant remediless.

[21] This opens the door to a consideration of the merits of the appeal. On
16 September 2016, Liberty obtained judgment in the amount of R 883 024.43, plus
interest and costs on the attorney and client scale against Mr Moosa. The claim was
based on a suretyship executed by him in favour of Liberty for the liabilities of a close
corporation, Shaazura Investments CC (Shaazura), which had been placed in
voluntary liquidation on 13 March 2013. When Liberty failed to obtain satisfaction of
the debt, it initiated an application in the high court in terms of rule 46A of the Uniform
Rules of Court to have the two immovable properties that were registered in his name
declared executable. Mr Moosa opposed the application and whilst it was pending, he
caused ownership of the two properties to pass to the Mubaraak Family Trust (the
trust). Each transfer was ‘black-booked’ – a conveyancing term - meaning that the
deeds registry was requested to expedite the transfer and registration of ownership.
Consequently, transfer and registration of ownership in each instance occurred one
week after lodgement of the prescribed documents with the deeds registry.

[22] Mr Moosa was the founder of the trust, which was created on 8 September
2011. The three original trustees were Mr Moosa, Mr Mohammed Shuabe Moosa and
a representative of a trust company, Iprotect Trustees (Pty) Ltd. Mr Moosa’s mother
was subsequently appointed a trustee and Mr Mohammed Shuabe Moosa ceased at
some stage to be a trustee. The trust is a discretionary trust of which Mr Moosa and
his family are the beneficiaries. According to Mr Moosa, the trust, ‘owns many
properties, mainly commercial’, and ‘[i]t has available to it the knowledge, skills,
contractors and workers to renovate properties cost effectively’.

[23] Mr Moosa is also a director of three property-owning companies – Sultex
Holdings (Pty) Ltd (Sultex), Mstu Investments (Pty) Ltd (Mstu) and Mazzri Investments
(Pty) Ltd (Mazzri). Mstu owns an immovable property in Pietermaritzburg, which it
purchased from the trust for R5,5 million. Sultex purchased two immovable properties
in Pinetown for R35 million. Mazzri, of which Mr Moosa is the sole director, is the owner

of four immovable properties; two of which, held under one deed of transfer, were
purchased from the trust for an amount of R2,7 million and the other two were
purchased for R4 million and R3 million apiece. Mr Moosa admitted that he is a director
of Sultex, Mstu, and Mazzri, but stated that he is not a shareholder of any one of them.

[24] It is not necessary to examine the evidence any further. Mr Moosa’s answering
affidavit raises more questions than answers. He was obliged to be candid with the
court and deal pertinently with the facts, particularly those that fall within his peculiar
knowledge. It was also incumbent on him to annex copies of relevant documentary
evidence, to enable the court to ascertain whether his version survives scrutiny. And,
to put up confirmatory affidavits from persons, including his mother, to whom he was
allegedly indebted.

[25] What is important for present purposes is that he admitted that he is indebted
to Liberty in the amount of R1 676 048.86. He described himself in his answering
affidavit as being both ‘factually’ and ‘hopelessly insolvent’. He added:
‘In fact, my liabilities exceed my assets to such an extent that there would be no benefit for
creditors if my estate is sequestrated as will be demonstrated below.’
Mr Moosa resists the application, because, so he contends, if a provisional
sequestration order were to issue, there would be no advantage to creditors.

[26]  Liberty argues that all indications are that Mr Moosa ‘is indeed the driving force
and directing mind of the trust’ and that what he has effectively achieved is to put the
properties beyond the reach of his creditors. Mr Moosa proffered no plausible
explanation as to why he surreptitiously caused the passing of ownership of the two
properties. That is something in regard to which an investigation and inquiry may yield
a benefit to his creditors if it were found that the sale and transfer of those properties
to the trust were improper dispositions as contemplated in ss 29, 30 and 31 of the Act.
So too, investigations into the shareholding of Sultex, Mstu and Mazzri, all of whom
own immovable properties of substantial value.

[27] Advantage to creditors may lie in the prospect of finding assets falling into the
insolvent estate, which may have been concealed or improperly disposed of. It will be
sufficient if the creditor, on an overall view on the papers, can show, for example, that

there are reasonable grounds for coming to the conclusion that upon investigation and
inquiry a trustee may be able to unearth assets that might then be attached, sold and
the proceeds disposed of for distribution amongst creditors.25 The test to be applied in
such a case, as was formulated in Meskin & Co v Friedman,26 is that:
‘… the facts put before the Court must satisfy it that there is a reasonable prospect – not
necessarily a likelihood, but a prospect which is not too remote – that some pecuniary benefit
will result to creditors. It is not necessary to prove that the insolvent has any assets.’27

[28] The high court was evidently far too receptive to Mr Moosa’s case. A proper
conspectus of the evidence ought to have led it to the conclusion that a provisional
sequestration was, in the circumstances, not just appropriate, but indeed necessary.
In the result, Liberty’s application should have succeeded before the high court.

[29] It remains to add that in anticipation of it failing on the appealability point, Liberty
brought applications before this court for the joinder of the Minister of Justice and
Correctional Services, as an incident to an application to challenge the constitutionality
of s 150(5) of the Act on appeal. Those applications were opposed by Mr Moosa. As
it transpired, they turned out to be unnecessary. Liberty did so out of an abundance of
caution and, in the light of the various authorities against them on the point, as well as
the stance adopted by Mr Moosa both before this court and the one below, they can
hardly be faulted in that regard. In the circumstances it seems fitting that there should
be no order as to costs in respect of those applications.

[30] In the result, the following order is made:
Leave to appeal is granted.
The appeal is upheld with costs, such costs to include the costs of the
application for leave to appeal in both this Court and the high court.

25 Dunlop Tyres (Pty) Ltd v Brewitt [1999] 2 All SA 328 (W); 1999 (2) SA 580 (WLD) at 582B-E and
583B-H.
26 Meskin & Co v Friedman [1948] 2 All SA 416 (W); 1948 (2) SA 555 (W) at 559 (Meskin).
27 The test set out in Meskin was approved by this Court in Commissioner, South African Revenue
Services v Hawker Air Services (Pty) Ltd; Commissioner, South African Revenue Services v Hawker
Aviation Partnership and Others [2006] 2 All SA 565 (SCA); 2006 (4) SA 292 (SCA) para 29 and by the
Constitutional Court in Stratford and Others v Investec Bank Ltd and Others [2014] ZACC 38; 2015 (3)
BCLR 358 (CC); 2015 (3) SA 1 (CC); (2015) 36 ILJ 583 (CC) para 43.

In each instance, the costs shall include those of two counsel, where so
employed.
The order of the high court is set aside and in its stead is substituted the
following:
‘(a) The estate of the respondent is placed under provisional sequestration
in the hands of the Master of the high court;
(b) The respondent is called upon to advance reasons, if any, on Tuesday
30 May 2023 at 10h00, why the court should not order the final
sequestration of his estate.’

________________

V M Ponnan

Judge of Appeal

________________

P A Meyer

Judge of Appeal

Appearances

For the applicant:
A Gabriel SC (with G E Ender)
Instructed by:

Gerings Attorneys, Johannesburg
Hendre Conradie Inc, Bloemfontein

For the respondent:
M du Plessis SC (with M E van Jaarsveld)
Instructed by:

Carlos Miranda Attorneys, Pietermaritzburg

Matsepes Inc, Bloemfontein
THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
MEDIA SUMMARY OF JUDGMENT DELIVERED IN THE SUPREME COURT OF APPEAL

From:
The Registrar, Supreme Court of Appeal
Date:

14 April 2023
Status:
Immediate
The following summary is for the benefit of the media in the reporting of this case and does not
form part of the judgments of the Supreme Court of Appeal
Liberty Group Limited v Moosa (126/2022) [2023] ZASCA 52 (14 April 2023)
Today the Supreme Court of Appeal (SCA) upheld an appeal by Liberty Group Limited (the appellant)
with costs, including costs of the application for leave to appeal in both the SCA and the KwaZulu-Natal
Division of the High Court, Pietermaritzburg (the high court) and the costs of two counsel. The SCA
further set aside the order of the high court, replacing it with an order placing the estate of Mohammed
Shaaz Moosa (the respondent) under provisional sequestration and calling upon the respondent to
advance reasons, on a specified date, why the high court should not order the final sequestration of his
estate.
The appeal was directed against an order of the high court which dismissed the application by the
appellant for the provisional sequestration of the estate of the respondent. The high court thereafter
also dismissed an application by the appellant for leave to appeal on the basis that its order is, in terms
of s 150(5) of the Act, not appealable.
The issue before the SCA was whether an appeal against the refusal of a provisional order of
sequestration is precluded by s 150(5) of the Insolvency Act 24 of 1936 (the Act).
On 16 September 2016, the appellant obtained judgment in the amount of R 883 024.43, plus interest
and costs on the attorney and client scale against the respondent. The claim was based on a suretyship
executed by the respondent in favour of the appellant for the liabilities of a close corporation, Shaazura
Investments CC (Shaazura), which had been placed in voluntary liquidation on 13 March 2013. When
the appellant failed to obtain satisfaction of the debt, it initiated an application in the high court in terms
of rule 46A of the Uniform Rules of Court to have the two immovable properties that were registered in
the respondent’s name to be declared executable. The respondent opposed the application and whilst
it was pending, he caused ownership of the two properties to pass to the Mubaraak Family Trust (the
trust). Each transfer was ‘black-booked’ – a conveyancing term - meaning that the deeds registry was
requested to expedite the transfer and registration of ownership. Consequently, transfer and registration
of ownership in each instance occurred one week after lodgement of the prescribed documents with
the deeds registry. The respondent was the founder of the trust and the three trustees were the
respondent, Mr Mohamed Shuabe and a representative of a trust company. When Mr Muhammed
Shuabe ceased to be a trustee, the respondent’s mother was subsequently appointed in his place. The
trust is a discretionary trust of which the respondent and his family members are the beneficiaries.

The respondent is also a director of three property-owning companies – Sultex Holdings (Pty) Ltd
(Sultex), Mstu Investments (Pty) Ltd (Mstu) and Mazzri Investments (Pty) Ltd (Mazzri). Mstu owns an
immovable property in Pietermaritzburg, which it purchased from the trust for R5,5 million. Sultex
purchased two immovable properties in Pinetown for R35 million. Mazzri, of which the respondent is
the sole director, is the owner of four immovable properties; two of which, held under one deed of
transfer, were purchased from the trust for an amount of R2,7 million and the other two were purchased
for R4 million and R3 million apiece. The respondent admitted that he is a director of Sultex, Mstu, and
Mazzri, but stated that he is not a shareholder of any one of them.
The respondent further admitted that he is indebted to the appellant in the amount of R1 676 048.86.
In his answering affidavit, he had described himself as being both factually and hopelessly insolvent,
stating that he resisted the application due to the fact that if the provisional sequestration order was
granted, there would be no advantage to his creditors. The appellant disagreed with this assertion and
argued that all indications were that the respondent is indeed the driving force and directing mind of the
trust and that what the respondent has effectively achieved is to put the properties beyond the reach of
his creditors. The appellant further argued that the respondent proffered no plausible explanation as to
why he surreptitiously caused the passing of ownership of the two properties and that that was
something in regard to which an investigation and inquiry may yield a benefit to his creditors if it were
found that the sale and transfer of those properties to the trust were improper dispositions as
contemplated in ss 29, 30 and 31 of the Act. So too, investigations into the shareholding of Sultex, Mstu
and Mazzri, all of whom own immovable properties of substantial value.
In coming to a decision, the SCA held that the respondent’s answering affidavit in the application for
sequestration in the high court raised more questions than answers and that he was obliged to be
candid with the court and deal pertinently with the facts, particularly those that fall within his peculiar
knowledge. It held that it was also incumbent on him to annex copies of relevant documentary evidence,
to enable the court to ascertain whether his version survives scrutiny. And, to put up confirmatory
affidavits from persons, including his mother, to whom he was allegedly indebted.
The SCA went further to state that advantage to creditors may lie in the prospect of finding assets falling
into the insolvent estate, which may have been concealed or improperly disposed of. It will be sufficient
if the creditor, on an overall view on the papers, can show, for example, that there are reasonable
grounds for coming to the conclusion that upon investigation and inquiry a trustee may be able to
unearth assets that might then be attached, sold and the proceeds disposed of for distribution amongst
creditors.
In conclusion, the SCA found that the high court was far too receptive to the respondent’s case and that
a proper conspectus of the evidence ought to have led it to the conclusion that a provisional
sequestration was, in the circumstances, not just appropriate, but indeed necessary.
In the result, the SCA found that the appellant’s application should have succeeded before the high
court.
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