IN THE HIGH COURT OF SOUTH AFRICA

(LIMPOPO DIVISION, POLOKWANE)

CASE NO:

In the matter between:

PETER’S HARWARE CC Applicant

and

BOOS BRITZ Respondent

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FOUNDING AFFIDAVIT
___________________________________________________________________

I, the undersigned

ABEL ATTORNEY,

do hereby make an oath and state that:

1. I am an admitted attorney of the above Honourable Court, practising as such

under the name and style of Abel’s Attorneys at 89 Marshall street Polokwane,

being the applicant’s attorney of record herein.

2. The facts herein are within my personal knowledge, unless indicated otherwise

or apparent from the context, and are, to the best of my knowledge and belief

both true and correct.

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3. In my capacity as the applicant’s duly appointed attorney, I am duly authorised to

depose to this affidavit.

THE APPLICANT

4. The applicant is PETER’S HARDWARE CC, a close corporation duly

incorporated and registered in terms of the close Corporations Act, Act number 69

of 1984, as amended, with registration number 1993/113758/23, and with

registered address at 74 Bok street, Polokwane, Limpopo Province.

THE RESPONDENT

5. The respondent is BOOS BRITZ a major male person with Identity Number

900209 7531 083, copy of the respondent’s South Africa Identity Book is

attached hereto as ANNEXURE “AA1”.

6. The respondent’s last known address is 124 Main street, Mokopane, but

respondent’s current address is unknown.

JURISDICTION

7. The cause of action arose in the Honourable Court’s jurisdiction, and the

respondent’s last known address is in this Honourable Court’s jurisdiction, and on

this basis I respectfully submit that this Honourable Court has jurisdiction to

entertain this matter.

BACKGROUND

8. The applicant trades in the wholesale of building and hardware merchandise.

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9. During 2015 the applicant and a close corporation Boos Construction CC,

[the “CC”] duly represented by the respondent concluded a written agreement in

terms of which the applicant would sell and deliver certain material to the CC on

an open account.

10. At the same time the respondent signed a suretyship in terms of which he bound

himself as surety and co-principal debtor with the CC in favour of the applicant.

11. Pursuant to the agreement the CC made a series of purchases from the

applicant. The balance due by the CC to the applicant as at the end of December

2017 was R173 920.29.

12. Due to non- payment the applicant obtained judgement and a warrant of

execution against the CC as the first defendant and against the respondent as

the second defendant on the 24th of August 2019 in the Magistrates’ Court

under case number 1995/2017. Copies of the judgment and warrant of execution

are attached hereto as ANNEXURES “AA2” and “AA3” respectively.

13. The sheriff made several attempts to execute the warrant of execution, more

particularly as follows:-

13.1 On the 22nd of September 2016, nobody at given address,

13.2 On the 28th of September 2016, nobody at given address,

13.3 On the 4th of October 2016, nobody at given address, copy of the

return is attached as ANNEXURE “AA4”.

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13.4 On the 13th of May 2017, nobody at given address,

13.5 On the 15th of May 2017, nobody at given address, and according

to enquires from the neighbours, the respondent apparently had moved to

Pretoria, copy of return of service is attached as ANNEXURE “AA5”.

13.6 On the 6th of March 2017, non-service, nobody at given address. The return

indicates that the respondent had moved to Pretoria according to people in

the street. Copy of the return is attached as ANNEXURE “AA6”.

13.7 On the 21st of August 2018, nobody at given address,

13.8 On the 27th of August 2018, nobody at given address,

13.9 On the 4th of September 2018, nobody at given address. Copy of the return

is attached as ANNEXURE “AA7”.

14. I respectfully submit that has become clear that the respondent is no longer at

the address, and execution of the warrant is not possible.

15. The applicant thereafter instructed my office to institute sequestration

proceedings against the respondent.

16. A company specialising in the tracing of people, Real-Time Investigations, was

instructed to trace the respondent.

17. The said Real-Time Investigations furnished my office with a report, indicating

that the respondent’s address is 124 Main Street, Mokopane. Copy of the trace

report, dated 13 October 2018 is attached hereto as ANNEXURE “AA8”.

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18. Personnel from the office of the applicant’s attorneys, including myself, have

made several telephone calls in attempts to locate the whereabouts of the

respondent in order to get his current address where the sequestration

proceedings could be served personally, however, without success. I

respectfully refer the Honourable Court to the confirmatory affidavit of

Bester Baloyi, a clerk employed in the office of the applicant’s attorneys,

attached as ANNEXURE “AA9”.

19. Personnel of the applicant’s credit control department also attempted to locate

the respondents without success. I respectfully refer to the confirmatory affidavit

of Fathimer Moosa, the senior manager of the applicant’s debtors department,

attached as ANNEXURE “AA10”.

20.Thereupon the applicant’s attorneys conducted a deed search to establish

whether the respondent has any immovable property registered on his name.

The search indicates that no immovable property is registered on his name,

copy of the search report is attached hereto as ANNEXURE “AA11”.

21. Our office has also conducted a director search, which indicates the

respondent is or was a member of the CC, as well as a director of a company

called ZXY Construction, both of which indicates the respondent’s address as

124 Main Street, Mokopane, where it is determined the respondent is no longer

present. Copy of the director report is attached as ANNEXURE “AA12”.

22. Our office further conducted a company search at the CICP on the 4th of October
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2018, which search yielded only the 124 Main Street, Mokopane address for the

respondent. Copy of the report is attached hereto as ANNEXURE “AA13”.

23. All attempts to serve the warrant by the sheriff between 13 May 2018 and

4 September 2019, indicates that the respondent was no longer staying at

124 Main Street, Mokopane, and therefore it is reasonable to conclude that the

respondent is no longer staying or living, alternatively conducting business at

124 Main Street, Mokopane. See copies of returns ANNEXURES “AA13 –

AA17”

24. I respectfully submit that the applicant has done everything possible to locate the

respondent without success and that the applicant has made out a proper case

for the relief prayed for, and I respectfully pray for an order as set out in the

Notice of Motion.

_____________________
ABEL ATTORNEY

SIGNED and SWORN to before me at POLOKWANE on this ________ day of

OCTOBER 2018 by the Deponent who acknowledge that he knows and

understands the contents of this affidavit, that he has no objection taking the

prescribed oath and considers the prescribed oath as binding on his conscience and
in accordance with the requirements of Regulation R1258 dated 21 July 1972 as
amended by Regulation No. R1648 dated 19 August 1977 as further amended by
Regulation No. R1428 dated 11 July 1980.

_______________________
COMMISIONER OF OATHS