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The Joburg high court has dismissed Themba “DJ Euphonik” Nkosi’s bid to have the estate of controversial poet Ntsiki Mazwai provisionally sequestrated.
Acting Judge KD Iles has ruled that although Mazwai still owed Nkosi more than R150,000 in unpaid legal costs and had committed acts of insolvency, Nkosi’s application could not succeed because there was no evidence that sequestration would result in creditors recovering more money from her.
Sequestration is a legal process where an individual surrenders their estate to the court when they can no longer pay their debts.
Nkosi approached the court relying on two outstanding cost orders granted in his favour which stem from his successful lawsuit to stop Mazwai from mentioning him on social media.
In March 2022, the orders enforced an interdict preventing Mazwai from making any utterances about Euphonik on social media after she allegedly called him a “rapist” two years before. She was also ordered to pay the costs related to the application.
I am not satisfied that an advantage to creditors has been demonstrated on the present facts. It is speculative to conclude that an enquiry will yield material benefit for creditors.
— Acting Judge KD Iles
After a sheriff failed to recover the money in 2023, Mazwai admitted she could not pay the debt and undertook to settle it when she was financially able.
The judge rejected Mazwai’s argument that her inability to pay immediately did not amount to an act of insolvency.
“The respondent is mistaken in this regard,” Iles said.
“Given the common cause facts, the necessary acts of insolvency contemplated by sections 8(b) and 8(g) of the Act are established.”
However, the judge said the real dispute was whether sequestrating Mazwai’s estate would offer any meaningful advantage to creditors. Mazwai told the court that the phone, laptop and car she drives are not hers.
However, Nkosi argued that a trustee should be appointed to investigate Mazwai’s finances because she had not fully disclosed her income, expenses, or the affairs of companies in which she is involved. He also argued that her failure to identify other creditors justified further investigation.
It does not flow from this that one can conclude that there is a reasonable possibility of the applicant recovering more upon sequestration than he would through the ordinary execution processes.
— Acting Judge KD Iles
But the court found that those concerns were not enough.
“The latter contention, namely that an investigation is necessary in order to verify that which the respondent has stated concerning her financial position, is insufficient to constitute an advantage to creditors,” Iles said.
“An investigation is, in and of itself, not a sufficient advantage to creditors to warrant sequestration.”
The judge accepted that Mazwai is linked to two close corporations and two companies, one of which generates income through YouTube and Google, but said there was no evidence that hidden assets existed or that a trustee would uncover anything of value.
“I am not satisfied that an advantage to creditors has been demonstrated on the present facts,” Iles said.
“It is speculative to conclude that an enquiry will yield material benefit for creditors.”
The court also found there was no evidence that Mazwai had concealed assets, transferred property to avoid paying creditors or lived beyond her disclosed financial means.
“There is no evidence of undisclosed income, hidden assets, misdirected benefits, loan accounts, or impeachable dispositions,” the judge said.
“There is no suggestion that the respondent holds assets through other structures nor any indication that the respondent’s disclosed financial position is at odds with her apparent lifestyle.”
Iles said Nkosi may understandably be frustrated by not knowing whether or when Mazwai would be able to settle the debt, but that frustration alone could not justify sequestration.
“It does not flow from this that one can conclude that there is a reasonable possibility of the applicant recovering more upon sequestration than he would through the ordinary execution processes,” the judge said.
Mazwai had also argued that the sequestration application was an abuse of process aimed at forcing her to issue a public apology over the dispute that led to the legal costs order.
The judge said it was unnecessary to decide that issue because the application had already failed on the question of benefit to creditors.
The application was dismissed, with each party ordered to pay their own legal costs.
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