- The High Court in Pretoria dismissed an application to sequestrate a couple's joint estate.
- Deputy Sheriff Rishen Durgapersat admitted to meeting the debtor at a KFC, despite the record indicating that execution took place at the debtor's Midstream residence.
- Acting Judge Mentz referred the matter to the South African Board for Sheriffs for investigation.
A deputy sheriff's decision to meet a judgment debtor at a KFC rather than at his luxury Midstream home has resulted in the High Court in Pretoria dismissing an application to sequestrate a couple's joint estate.
In a judgment delivered by Judge A Mentz, the court found that Deputy Sheriff Rishen Durgapersat knowingly recorded false information in an official nulla bona return. This is an official document certifying that a debtor has no movable assets available to satisfy a court judgment. The return formed the foundation of the sequestration application.
Trustees relied on sheriff's return
The trustees of the Cromhout Family Trust had obtained judgment against Martin Manqoba Masilela for R300,000, together with interest and costs. They then applied for the final sequestration of the joint estate of Martin and Liziwe Masilela, who are married in community of property.
Their application relied entirely on the nulla bona return issued by Deputy Sheriff Durgapersat. The return stated that on 20 August 2025, he attended the respondents' home in Midstream, Centurion, an exclusive gated estate known for its luxury homes and high-end residential lifestyle, demanded payment and found no movable assets that could satisfy the judgment debt. On the strength of that return, the applicants obtained a provisional sequestration order.
KFC meeting changes the case
The case changed dramatically when the respondents filed their answering affidavit. Martin Masilela told the court that Deputy Sheriff Durgapersat had never visited his home on the day in question. Instead, the deputy sheriff telephoned him and arranged to meet at a KFC outlet in Rooihuiskraal, Centurion, where documents were signed.
In a replying affidavit, Deputy Sheriff Durgapersat confirmed that this was exactly what had happened. He said previous attempts to execute the warrant at the residence had been unsuccessful and that he therefore arranged to meet Masilela at the KFC instead.
The respondents also disputed that they had no assets. They said they owned furniture, motor vehicles and the Midstream property, and that had the deputy sheriff had attended their home, assets could have been pointed out to satisfy the judgment debt.
Judge finds return was knowingly false
Judge Mentz found that Deputy Sheriff Durgapersat's affidavit confirmed rather than corrected the defect in the official return.
The judge said it is common cause that the return wrongly records that the demand for payment and the first respondent's declaration occurred at the residential address on 20 August 2025. They did not. Those events occurred at the KFC.
The court also considered a transcript of the conversation between the deputy sheriff and Masilela at the restaurant. According to the transcript, Deputy Sheriff Durgapersat said he was going to leave it as this address and was not going to say he met Masilela at the KFC. He said he would leave it at that address.
Judge Mentz found that the statement indicated a conscious decision not to record the true place at which the relevant events occurred in the nulla bona return.
False return sinks sequestration application
The court stressed that sheriffs are officers of the court and that their returns are routinely relied upon as prima facie proof of the facts they record.
Judge Mentz held that the return materially misrepresented where the writ had been executed and falsely stated that a diligent search for assets had taken place at the respondents' residence.
The judge said the nulla bona return did not merely contain an immaterial inaccuracy capable of condonation. It materially misstated where the writ was executed, where the demand was made, and the factual basis upon which it was certified that no sufficient assets were pointed out or found.
The court ruled that the defective return was invalid and could not establish the act of insolvency required by section 8(b) of the Insolvency Act. It also held that the applicants could not repair their case by relying on a different alleged act of insolvency for the first time in their replying affidavit.
Investigation ordered
Although the trustees still held an unsatisfied judgment against Martin Masilela, the court found they had failed to prove one of the jurisdictional requirements for a final sequestration order.
The application was dismissed, the provisional sequestration order was set aside, and no order as to costs was made.
Concerned by Deputy Sheriff Durgapersat's conduct, Judge Mentz directed the applicants' attorney to serve the judgment on the South African Board for Sheriffs for investigation.
The judge said a nulla bona return containing information known by a sheriff or deputy sheriff to be false affects not only the parties involved, but also the integrity of the court process and the proper use of judicial resources.
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