Flynote: Insolvency law—Application for provisional sequestration of respondent—Acts of insolvency relied upon—Failure to satisfy judgment—Issuance of writ of execution—Return of service defective—No demand made to satisfy writ or indicate disposable property—No indication that deputy sheriff did not find sufficient disposable property—Acts of insolvency not proven-Application dismissed.
Summary: Applicant launched an application for the provisional sequestration of the respondent. The acts of insolvency relied upon are that a default judgment was granted in favour of applicant and respondent failed to satisfy judgment and on the ground that a writ of execution was issued against the respondent. Respondent argued that the return of service was defective because it did not indicate that demand was made to satisfy the judgment nor did it indicate disposable property.
Further the return of service did not indicate that the Deputy Sheriff did not find sufficient disposable assets to satisfy judgment. Acts of insolvency not proven. Application dismissed. The application for the provisional sequestration of the respondent is dismissed with costs. The Applicant is the Municipal Council of Windhoek, a juristic person duly established in terms of the provisions of section 6 2 of the Local Authorities Act, Act 23 of with its principle place of business situated at independence Avenue, Windhoek Republic of Namibia.
Ms De Kock, the corporate legal Advisor of the applicant, deposed to the founding affidavit. A warrant of execution against the respondent was issued. On the 9 November the Deputy- Sheriff for the district of Windhoek duly executed the warrant and attached certain movable property. Another writ was executed. On 3 March the Deputy-sheriff issued a return of service in which he certified that:. The Defendant informed me that he sold the vehicle during October She avers that a deed search was conducted and it was established that the respondent does not own any immovable property.
Based on the aforesaid, she concludes that the respondent is not only in the process of disposing of his assets to the prejudice of his creditors but his liabilities also exceeds his assets and he is unable to pay his debts, hence the application for his sequestration. The respondent opposed the application and filed an answering affidavit. He was not legally represented when he drafted and filed the answering affidavit and the issues addressed in his answering affidavit are not relevant to the inquiry whether he must be provisionally sequestrated or not and therefore I will not consider his answering affidavit.
