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IN THE KWAZULU-NATAL HIGH COURT, DURBAN

REPUBLIC OF SOUTH AFRICA

CASE NO: 14769/09

In the ex parte application of:

SBUSISO VICTOR DUBE First Applicant

LINDOKHULE RITTA DUBE Second Applicant

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JUDGMENT

PER MARAIS AJ

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1. This is an application for the voluntary surrender of the Applicant’s estate.

2. As seems to be common with applications of this kind, the benefit to creditors is marginal. (Whilst the Applicants calculated a dividend of about R0.20 in the rand, to creditors, the achievement of this “benefit” depends largely upon the sale value of the immovable property owned by the parties and whether, in due course, the valuator will be shown accurately to have valued the property. The value of the unencumbered assets in the estate amount to no more than R6,700.00).

3. The Applicants managed to acquire immovable property with a current value of about R390 000.00 (on a mortgage bond with a current balance of about R285,000.00) and, according to the papers, seemed to manage comfortably until both, apparently, lost their employment last year. Notwithstanding this, the parties seemed to accumulate, on the papers, at least, only the bare necessities with negligible values.

4. The First Applicant explains that he is now employed and that his nett income amounts to R3,000.00. No further detail is given of the nature of his employment, nor is any salary advice put up to give support thereto.

5. There is indication in the papers that this application was, largely, motivated by the fact that the bondholder had taken a judgment against the Applicants and that it was about to sell the property in execution.

6. It would seem, therefore, that the application is motivated largely by the Applicants’ concerns with their own difficulties and less concerned with the interests of creditors:

“The machinery of voluntary surrender was primarily designed for the benefit of creditors, and not for the relief of harassed debtors”.

Ex Parte: Pillay 1955 (2) SA 309 N (at 311).

7. If the object with the application was primarily to avoid execution (as it might well be), this would indicate an ulterior motive which, in itself, constitutes a circumstance weighing against the exercise of my discretion in favour of the Applicants.

8. If these were the only circumstances of concern, I might (and I put it no higher) have lent the Applicants a more sympathetic ear. What does, however, concern me, in addition, is that the proof of postage of notification to creditors, does not, actually, reflect confirmation of notification (by registered post) to ABSA Bank Limited (the bondholder).

9. In his supporting affidavit, the Applicants’ Attorney’s statement about notification is ambiguous. In this affidavit reference is made back to the founding affidavit of the First Applicant, without any explanation of the apparent omission of notification to the bondholder.

10. In the circumstances I am not satisfied that a case has been made out for the relief sought. The application is, accordingly, dismissed.

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MARAIS AJ

11 NOVEMBER 2009

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