Cape Town - A disbarred attorney who withdrew R522 759 from a dead man’s bank account has had his estate placed under provisional sequestration by the Western Cape High Court and the matter is now in the hands of the Master of the High Court in Cape Town.
Andrea Harvey, the dead man’s daughter, approached the high court seeking an order placing former attorney Servaas Theron under provisional liquidation.
Harvey testified that when her father died in August 2019, Theron was appointed to act as the executor of the deceased estate in terms of the will.
However, Theron renounced his appointment and Harvey ended up being the executor in her father’s estate. Nevertheless, Theron recommended that Harvey appoint Finck Attorneys as her agent.
Through these attorneys, Harvey gave Theron power of attorney to administer her late father’s estate and to act for her as she did not want to keep travelling back and forth from the UK.
At the time Harvey appointed him as her agent, she was unaware that he had been struck from the roll of attorneys by the Law Society as far back as in July 2012, and neither did he mention this to her.
Theron now had full control over her father’s deceased estate and Harvey said she believed her matter was uncomplicated and would be finalised in a relatively short time. She contacted Theron twice, in June and then in July, 2020, to ask whether the funds of the estate had been released. He confirmed that they had been released, but did nothing further.
In frustration, Harvey contacted Nedbank for the bank statements and found that cash withdrawals had been made from her father’s bank account from the time when Theron was in charge of the deceased estate. She sent an email to Theron asking him to pay back the money and when he did not respond, Harvey approached a different attorney for help.
The new attorney wrote to Theron in August 2020, telling him his mandate had been terminated. They also found that Theron had issued cash cheques for R522 759 against the deceased estate bank account over a year.
Harvey eventually discovered that Theron was indebted to other creditors to an amount of more than R1 million and that he had used the same modus operandi that he used on her late father’s estate in defrauding them.
Harvey’s argument in the court was that Theron had committed various acts of insolvency as envisaged in the Insolvency Act.
Opposing the application to have his estate sequestered, Theron said that he had in fact disclosed his alleged indebtedness to Harvey.
He argued that as a result of his disclosure, she had no locus standi to proceed with her application to the court and had to withdraw it.
He argued that Harvey refused to accept the disclosure because other creditors wished to persist with the application.
Theron disputed this contention and said the claims of those creditors had not been established on a prima facie basis. They were only referred to fleetingly.
In his affidavit, Theron denied that he was “hopelessly insolvent” and that he “committed various acts of insolvency”.
He said his assets exceed his liabilities and that Harvey’s application was an abuse of process.
Judge Babalwa Mantame said Theron had not disputed that he made an unauthorised withdrawal of the deceased estate applicant’s father in an amount of R520 000.
“Though he sought to pose as the agent of the deceased estate, the bottom line is that he is the creditor of the deceased estate.”
Judge Mantame ordered that Theron’s estate be placed under provisional sequestration in the hands of the Master of the High Court of South Africa, Cape Town.
The judge also issued an order calling upon all interested parties to show cause on July 31, 2023 why the first respondent’s estate should not be placed under final sequestration.
She ruled that a copy of the order should be served by the sheriff of the Court on Theron at his residential address.
mwangi.githahu@inl.co.za