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[2016] ZAWCHC 148
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Cooper NO and Others v Micromatica 324 (Pty) Ltd and Others (4182/2015) [2016] ZAWCHC 148 (10 October 2016)
IN
THE HIGH COURT OF SOUTH AFRICA
(WESTERN
CAPE DIVISION, CAPE TOWN)
Case
No: 4182/2015
In the
matter between:
CHAVONNES
BADENHORST ST CLAIR COOPER N O
First
Applicant
JOHANN
DEMETRIUS APPIES N
O
Second Applicant
SADECK
ZHAUM AHMED N
O
Third
Applicant
(In their
capacities as the liquidators of the Dividend Investment Scheme)
and
MICROMATICA
324 (PTY) LTD AND 135
OTHERS
Respondents
CITY
CAPITAL S A PROPERTY HOLDING LIMITED
First Intervening Party
M
JANSE VAN
RENSBURG
Second Intervening Party
W S
SMITH
Third
Intervening Party
THE
TRUSTEES FOR THE TIME BEING OF
THE
O’NEILLE FAMILY
TRUST
Fourth Intervening Party
V T
FERNHOUT
Fifth Intervening Party
JUDGMENT
DELIVERED ON 10 OCTOBER 2016
VAN
ROOYEN AJ
[1]
By
agreement between the parties, only the counter-application (“
the
counter-application”)
of the first intervening party, City Capital SA Property Holding
Limited (“
City
Capital”),
needs to be adjudicated in this matter. City Capital contends
that this court, on 8 July 2014, appointed the applicants as
liquidators of
Dividend
Investment Scheme,
a company in liquidation, and that their appointment was a nullity
because only the master of this court (“
the
master”)
has the right to appoint liquidators. City Capital therefore
seeks the setting aside of that order and, as a consequence,
a
further order granted on 3 December 2014.
Procedural
background
[2]
On
27 February 2013 this court ordered the winding-up of Div-Prop 11
(Pty) Ltd (“
Div-Prop
11”)
and Div-Prop 12 (Pty) Ltd (“
Div-Prop
12”)
.
First meetings of creditors of both companies were held and the
master appointed liquidators. The first and second applicants
were
appointed for Div-Prop 11. The first and third applicants were
appointed for Div-Prop 12. Collectively, the Div-Prop 11 and
Div-Prop
12 liquidators will be referred to as “
the
Div-Prop liquidators”
herein.
[3]
Div-Hold
11 Ltd is the holding company of Div-Prop 11. Div-Hold Income 12 Ltd
and Blue Beacon Investments 52 (Pty) Ltd are the holding
companies of
Div-Prop 12. Collectively, those holding companies will be referred
to as “
the
three holding companies”
herein.
[4]
During
March 2013 the boards of directors of the three holding companies
resolved to voluntarily commence business rescue proceedings
and the
same person was appointed as business rescue practitioner (“
the
business rescue practitioner”)
for each of the three holding companies.
[5]
During
June 2014 the business rescue practitioner launched applications in
this court for the winding-up of the three holding companies.
At the
same time, he and the Div-Prop liquidators launched an application
for an order declaring that: (a) Div-Prop 11, Div-Prop
12 and the
three holding companies are a single entity; (b) those five entities
shall henceforth be known as the “Dividend
Investment Scheme”;
(c) the Div-Prop liquidators are also the appointed liquidators of
the Dividend Investment Scheme.
[6]
On
8 July 2014 this court ordered that the three holding companies be
wound up. On the same day this court ordered (“
the
8 July 2014 order”)
as follows:
“
1.
Simultaneously with the liquidation orders pertaining to the first to
third respondents
…, the first to third respondents, Div-Prop
11 (Pty) Ltd and Div-Prop 12 (Pty) Ltd is [sic] declared a single
entity as
envisaged by
Sections 20(9)
,
22
,
141
(2)(c) and
141
(3) of
the
Companies Act 2008
;
2.
The five entities referred to in paragraph 1 above shall henceforth
be known
as the ‘Dividend Investment Scheme’ to be
administered as a company in continuance of the liquidation
proceedings of
the 4
th
to 7
th
Applicants;
3.
It is declared that the appointed liquidators in the estates of the
4
th
to 7
th
Applicants to [sic] be the appointed liquidators of the combined
company (the ‘Dividend Investment Scheme’);
…”
The
reference to the “
first
to third respondents”
is
a reference to the three holding companies and the reference to the
“
4
th
to 7
th
Applicants”
is a reference to the Div-Prop liquidators.
[7]
A
dispute arose between the Div-Prop liquidators and the master as to
whether a first meeting of creditors had to be held for the
Dividend
Investment Scheme. By then, first and second meetings of creditors
had already been held for Div-Prop 11 and Div-Prop
12. The Div-Prop
liquidators were of the view that it was not necessary to have a
first meeting of creditors for Dividend Investment
Scheme. The
Div-Prop liquidators therefore brought an application in this court
to have the matter resolved and on 3 December 2014
an order (“
the
3 December 2014 order”)
was granted, the effect of which was that no first meeting of
creditors for Dividend Investment Scheme needed to be held.
[8]
On
10 December 2014 the master certified that the Div-Prop liquidators
were appointed liquidators of “
the
Company known as ‘Dividend Investments Scheme’ which has
been placed under liquidation … on 8 July 2014.”
[9]
During
March 2015 the Div-Prop liquidators launched an application in this
court (“
the
main application”)
seeking relief in terms of s 20(9) of the Companies Act, 71 of 2008,
(“
the
2008 Act”)
in respect of companies other than those referred to above. City
Capital intervened and launched the counter-application. The main
application was dismissed by agreement and the counter-application
was set down for hearing on 18 April 2016. However, on 18 April
2016
the matter was not allocated to a judge. It was postponed (which may
be relevant to a costs order) to 15 August 2016 and on
that day I
heard oral argument in the counter-application.
Striking
out
[10]
City
Capital applied for the striking out of certain parts of the Div-Prop
liquidators’ answering affidavit in the counter-application
on
the basis that those parts related to settlement negotiations that
were privileged. However, those settlement negotiations resulted
in
an agreement that the main application be dismissed and the reason
for privilege fell away
[1]
.
Consequently, the application for striking out is without merit.
Factual
background
[11]
The
facts relied on by the business rescue practitioner in the
application that led to the 8 July 2014 order will be summarised
below.
[12]
Div-Prop
11, Div-Prop 12 and the three holding companies were part of a
property syndication scheme known as the
Dividend
Investment Scheme
.
Typically, the investment in a single property would be divided into
two parts namely a holding company (such as the three holding
companies) and a property company (such as Div-Prop 11 and Div-Prop
12). The property company would purchase the immovable property
directly from the seller. The promoter company inflated the value
presented to investors. The promoter company received the substantial
difference between the investment value and the asset value.
Investors immediately lost millions of Rand upon investing in a
scheme
as a result of the difference between the value of the assets
that the investors believed they invested in and the true value. In
addition, the promoter company took 15% shareholding in the property
company.
[13]
Zambezi
Retail Park (“
Zambezi”)
is a single shopping centre in Pretoria. When the three holding
companies were funded by investors, they purchased Zambezi in
different parts, at different times, through Div-Prop 11 and Div-Prop
12 so that the three holding companies had substantial loan
accounts
in Div-Prop 11 and Div-Prop 12. In total, investors invested more
than R160 million in the three holding companies but
the value of
Zambezi is only approximately R45 million. This means that investors
have lost more than R100 million already.
[14]
It
is impossible to determine the value of each of the two parts of
Zambezi invested in by different investors. To date only one
offer in
the sum of approximately R45 million has been received for Zambezi as
a whole.
[15]
A
further problem identified by the business rescue practitioner, is
the flow of funds. There was no real separation of the five
entities
which are the subject of this application. Funds flowed to and from
the various companies as investors needed to be paid
the dividends
that they were promised. It will be impossible to untangle all these
transactions.
[16]
The
failure to keep the financial affairs of the five companies apart is
further illustrated by the fact that there is a single
electricity
meter for Zambezi and an adjacent property called
Zambezi
Mall
.
Zambezi is currently in a dispute with the City of Tshwane regarding
an electricity bill of some R14 million. It is impossible
to
determine which part of the debt is to be attributed to each of the
five companies.
[17]
In
these circumstances, the business rescue practitioner stated that the
purpose of the application (which led to the 8 July 2014
order) was
to pierce/lift the corporate veil existing between Div-Prop 11,
Div-Prop 12 and the three holding companies and to declare
them a
single entity for the benefit of investors. It was proposed that the
combined entity be named
Dividend
Investment Scheme
and that it be treated as a single scheme as it is impossible to
separate the transactions relating to these companies.
City
Capital’s submissions
[18]
Initially,
broader
relief was sought in the counter-application but, during oral
argument, I was informed that it was limited to an order setting
aside the afore-quoted paragraph 3 of the 8 July 2014 order and the 3
December 2014 order. City Capital’s stance is that
the master,
and not the court, had to appoint liquidators for the Dividend
Investment Scheme and that, as a result, paragraph 3
of the 8 July
2014 order is a nullity. Consequently, the 3 December 2014 order too
should be set aside because the Div-Prop liquidators
had no standing
to launch that application.
[19]
It
is submitted by City Capital that only the master has the power to
appoint a liquidator for purposes of conducting the winding-up
of a
company and if a court does so, such appointment has no legal
consequences
[2]
.
[20]
City
Capital argues that the Div-Prop liquidators’ reliance on
Ex
Parte Gore & Others NNO
2013 (3) 382 (WCC) for their argument that a court has the power to
appoint liquidators in terms of s 20(9) of the 2008 Act, is
misplaced
for the reasons set out below.
[21]
According
to City Capital, the matter of
Gore
dealt exclusively with relief sought by the existing liquidators of
forty-one companies in a group in terms of s 20(9). It had
nothing to
do with the winding-up of those companies or the appointment of
liquidators. Section 20(9) has nothing to do with liquidations
and
makes no provision for the winding-up of companies, let alone the
appointment of liquidators. Section 367 of the Companies
Act, 61 of
1973, (“
the
1973 Act”)
is part of chapter 14 (retained by the legislature
[3]
)
which deals with winding-up of companies. Section 367 provides that
the master shall appoint liquidators. No mention is made of
a court
or anyone else.
[22]
It
is submitted by City Capital that s 367 does not provide that the
power of the master to appoint a liquidator must yield to the
powers
of a court to make an appropriate order in terms of s 20(9)(b) when
piercing the corporate veil of a company in terms of
s 20(9)(a). If
that was the legislature’s intention, the legislature, in
promulgating the 2008 Act, would have amended s
367 of the 1973 Act.
[23]
The
reasons why it is the master and not the court who is vested with the
power to appoint liquidators, were discussed comprehensively
in
Ex
Parte the Master of the High Court South Africa (North Gauteng)
2011 (5) SA 311
(GNP) paras [25] – [33].
[24]
It
is further argued by City Capital that the powers of a liquidator
relate to “
the
company”
[4]
for which he is appointed
and not any other company.
Div-Prop
liquidators’ submissions
[25]
The
Div-Prop liquidators point out that the business rescue practitioner,
under s141(2)(a)(ii) of the 2008 Act, applied for the
liquidation of
the three holding companies when he concluded that there had been
misfeasance and irregularity in the administration
of those
companies.
[26]
The
business rescue practitioner proposed that the court should, in terms
of s 141(3), alternatively s 20(9), consolidate the rights
and
obligations of the three holding companies, Div-Prop 11 and Div-Prop
12. The three holding companies possess nothing other
than their
interest in Div-Prop 11 and Div-Prop 12. It would save costs and be
an acknowledgement of the reality of the estates
if all five
companies were to be administered together.
[27]
The
2008 Act created, in the words of the memorandum which accompanied
its consideration in Parliament, a company system based on
simplification, flexibility, corporate efficiency, transparency and
predictability. That memorandum also made it clear that, as
far as
insolvency was concerned, the 2008 Act would provide for a
transitional arrangement that would retain the current regime
set out
in chapter 14 of the 1973 Act “
on
an interim basis until such time as any new uniform insolvency law
may be enacted
”.
[28]
One
of the significant new elements of the 2008 Act is the introduction
of a business rescue regime. Whilst the 2008 Act generally
deals only
with the liquidation of solvent companies, s 141 provides that, if a
business rescue practitioner concludes that a company
cannot be
rescued he must apply for its liquidation. According to the Div-Prop
liquidators, this constitutes a new and separate
ground for the
winding-up of a company which stands apart from the provisions of s
344 of the 1973 Act. In terms of s 141(3) the
court has a wide
discretion regarding the relief to be granted in such an application.
These provisions go beyond chapter 14 of
the 1973 Act.
[29]
A
further new feature of the 2008 Act is the introduction of s 20(9)
which provides for the piercing of the corporate veil.
[30]
It
is argued by the Div-Prop liquidators that regard must be had to the
new legislation and its objectives in interpreting the 8
July 2014
order and the statutory basis on which it was made (see the specific
reference to certain provisions of the 2008 Act
in paragraph 1 of the
order). To the extent that there may be a conflict between the 2008
Act and the 1973 Act, the former should
take precedence.
[31]
The
Div-Prop liquidators contend that, strictly speaking, there was not
an appointment of liquidators in the 8 July 2014 order.
There was
arrangement of rights and obligations which would now vest in
Div-Prop 11 and Div-Prop 12 and would be administered by
the Div-Prop
liquidators. This is in accordance with what was done in the
Gore
matter.
Interpretation
of the Companies Act
[32]
In
Ex
Parte the Master of the High Court South Africa (North Gauteng),
supra,
the
court found that the master is the only official authorised to
appoint liquidators of companies in liquidation and that a court
has
no authority or jurisdiction to effect such appointments. The
application in that matter was necessitated by a practice that
had
developed to include in applications for liquidation a prayer for the
appointment of a specific individual as liquidator. Such
relief was
granted in several matters.
[33]
Section
367 of the 1973 Act (which provides that the master shall appoint a
liquidator) should not be read in isolation but with
the other
provisions of Chapter 14 of the 1973 Act
[5]
.
Those provisions contemplate the appointment of a liquidator by the
master in circumstances where no liquidator has been
appointed yet
and when vacancies that occur after the appointment of liquidators
have to be filled. This is the scenario that was
considered by the
court in
Ex
Parte the Master of the High Court South Africa (North Gauteng).
The court did not have to consider whether s 20(9)(b) and 141(3) of
the 2008 Act empower a court to appoint a liquidator.
[34]
The
interaction between chapter 14 of the 1973 Act and ss 20(9)(b) and
141(3) of the 2008 Act will be considered hereinafter and
this
analysis will be guided by the following approach adopted in
Panamo
Properties
(Pty) Ltd v Nel and Another NNO
2015
(5) SA 63
(SCA) para [27]:
“
When
a problem such as the present one arises the court must consider
whether there is a sensible interpretation that can be given
to the
relevant provisions that will avoid anomalies. In doing so certain
well-established principles of construction apply. The
first is that
the court will endeavour to give a meaning to every word and every
section in the statute and not lightly construe
any provision as
having no practical effect. The second and most relevant for present
purposes is that if the provisions of the
statute that appear to
conflict with one another are capable of being reconciled then they
should be reconciled.”
[35]
Chapter
14 of the 1973 Act and the provisions of the 2008 Act referred to in
paragraph 1 of the 8 July 2014 order are all part of
the same
statutory scheme and ought to be interpreted as such, instead of
approaching them as two competing statutes or in a hierarchical
fashion, unless specific provision is made for the contrary. Such a
specific hierarchical provision is to be found in items 9(2)
and (3)
of schedule 5 to the 2008 Act, in the following terms:
“
(2)
… sections 343, 344, 346 and 348 to 353 do not apply to the
winding-up of a solvent company, except to the extent necessary
to
give full effect to the provisions of Part G of Chapter 2.
(3)
If there is a conflict between a provision of the previous Act that
continues to apply in terms of sub-item (1), and a provision
of Part
G of Chapter 2 of this Act with respect to a solvent company, the
provision of this Act prevails.”
[36]
Neither
the provisions of the 1973 Act referred to in item 9(2), nor the
provisions of part G of chapter 2 of the 2008 Act referred
to in
items 9(2) and (3), deal with the appointment of liquidators.
Consequently, the provisions of chapter 14 of the 1973 Act
which deal
with the appointment of liquidators are not subject to hierarchical
interpretation.
Section
20(9):
[37]
Section
20(9) of the 2008 Act does not deal with the winding-up of companies.
It provides a statutory basis for piercing the corporate
veil of
companies
[6]
and empowers the
court to grant consequential relief for purposes of “
fixing
the right, obligation or liability in issue of the company somewhere
else”
[7]
.
That does not translate into a power to appoint a liquidator in the
circumstances contemplated in chapter 14 of the 1973 Act.
Chapter 14
provides a structured framework for the appointment of liquidators
and the rationale for that structure, with the emphasis
on the
master’s power to appoint liquidators, was explained in detail
in
Ex
Parte Master of the High Court South Africa (North Gauteng).
It could not have been the legislature’s intention to hide in a
statutory provision for piercing the corporate veil, a power
for the
court to appoint a liquidator in circumstances contemplated in
chapter 14 whilst express provision is made for such appointments
to
be made by the master within the structure provided for in chapter
14. If it were the intention of the legislature to empower
the court
to appoint liquidators in circumstances contemplated in chapter 14,
express provision would have been made for it.
Section
141:
[38]
Section
141(2)(a) of the 2008 Act provides that:
“
If,
at any time during business rescue proceedings, the practitioner
concludes that-
(a) there is no
reasonable prospect for the company to be rescued, the practitioner
must-
(i) so inform the
court, the company, and all affected persons in the prescribed
manner; and
(ii)
apply to the court for an order discontinuing the business rescue
proceedings and placing the company into liquidation”
[39]
In
terms of s 141(3), a court to which an application has been made in
terms of s 141(2)(a)(ii), may “
make
the order applied for, or any other order that the court considers
appropriate in the circumstances”
.
[40]
It
is argued on behalf of the Div-Prop liquidators that s 141 in effect
constitutes a new and separate ground for the winding-up
of a company
which stands apart from the provisions of s 344 of the 1973 Act and
that the court, on receiving such an application,
is endowed with a
wide discretion provided for in s 141(3). According to the Div-Prop
liquidators, that discretion includes the
power to appoint
liquidators.
[41]
It
has been illustrated earlier herein how, in terms of item 9(2) of
schedule 5, certain provisions of chapter 14 of the 1973 Act
are not
applicable to the winding-up of solvent companies but that the
provisions dealing with the appointment of liquidators remain
applicable. The 2008 Act does not provide for the exclusion of
chapter 14 when a winding-up order is granted in terms of s 141
of
the 2008 Act. If the intention was to exclude the provisions of
chapter 14, the legislature would have made express provision
for it
in the same way certain provisions of chapter 14 were excluded in
item 9(2) of schedule 5.
[42]
The
discretion provided for in s 141(3) relates to an order in the
alternative to an order “
discontinuing
the business rescue proceedings and placing the company into
liquidation”
contemplated in s 141(2)(a)(ii). It does not relate to the
consequences (such as the appointment of a liquidator) of a
winding-up
order. That appears from the fact that the words “
or
any other order”
in
s 141(3) follow the reference to an order applied for in terms of s
141(2)(a)(ii).
[43]
The
cogent reasons why the master should appoint a liquidator when a
company is wound up in the circumstances considered in
Ex
Parte Master of the High Court South Africa (North Gauteng),
equally apply to the winding-up of a company in terms of s 141. There
is no conceivable reason why the legislature would have intended
to
create a different dispensation in the event of a winding-up
contemplated in s 141.
Analysis
of the 8 July 2014 order
[44]
The
8 July 2014 order must be construed in accordance with the principles
of construction that apply to the interpretation of documents
[8]
.
Paragraph 3 of the 8 July 2014 order must not be read in isolation
but in the context of the order “
as
a whole and the circumstances attendant upon its coming into
existence
”
[9]
. Paragraph 3 of the order
must be considered, in particular, in conjunction with paragraphs 1
and 2 which are not under attack.
Considered objectively and
preferring a “
sensible
meaning”
[10]
, the effect of paragraphs
1 and 2 is the following:
[44.1]
Div-Prop
11, Div-Prop 12 and the three holding companies are considered to be
a single entity (“
the
single entity”)
.
[44.2]
The
single entity shall be known as
Dividend
Investment Scheme
.
[44.3]
The
single entity shall be administered “
as
a company
”.
That can only mean that it shall be administered as if the five
companies are one company. The court did not (and could
not) create a
new company.
[44.4]
The
administration of the single entity shall be conducted in
continuation of the liquidation proceedings relating to Div-Prop 11
and Div-Prop 12 which means that:
[a]
the
Div-Prop liquidators are to continue with the liquidation process as
if Div-Prop11 and Div-Prop 12 are one entity.
[b]
the
three holding companies are to be dealt with as if they are part of
Div-Prop 11 and Div-Prop 12.
[c]
the
pending liquidation proceedings (in respect of Div-Prop 11 and
Div-Prop 12) have to continue from where they were immediately
prior
to the 8 July 2014 order and do not have to start afresh.
How
else are the liquidation proceedings to continue, as ordered in
paragraph 2 (which is not under attack) of the 8 July 2014 order,
if
these conclusions were not correct?
[45]
The
order in paragraph 3 is a necessary consequence of the effect of
paragraphs 1 and 2 dealt with above.
[46]
There
are distinctions between this matter and
Gore
but,
in effect, the 8 July 2014 order, like the order in
Gore,
engineered
the fixing of rights and obligations elsewhere. The rights and
obligations of the three holding companies were transferred
to
Div-Prop 11 and Div-Prop 12 who in turn are to be treated as one
entity. This structure was necessitated by the fact that, unlike
the
group of companies dealt with in
Gore
,
the property syndication scheme in this matter does not involve a
single overall holding company. Each property is owned by a
different
company and each property owning company is owned by a different
holding company.
[47]
Read
contextually, this was not an appointment of liquidators contemplated
in chapter 14 of the 1973 Act, i e the appointment of
liquidators in
circumstances where no liquidator has been appointed yet or the
filling of a vacancy that occurred after a liquidator
had been
appointed.
[48]
The
master appointed the Div-Prop liquidators for Div-Prop 11 and
Div-Prop 12. The three holding companies whose separate legal
personalities have to be disregarded, courtesy of paragraph 1 of the
8 July 2014 order, are to be administered as if they are a
part of
Div-Prop 11 and Div-Prop 12. As a result of paragraph 1 of the order,
there is no remaining company for which a liquidator
can be
appointed. Consequently, the Div-Prop liquidators are to continue to
administer the two companies for which they were appointed
but as a
result of paragraph 1 of the order, they have to act jointly because
those two companies are considered to be one entity
and the three
holding companies too are considered to be part of that entity.
[49]
The
court therefore did not act in contravention of the 2008 Act, read
with the provisions of chapter 14 of the 1973 Act, when it
included
paragraph 3 in the 8 July 2014 order and, as a result, the 3 December
2014 order too is not impugnable.
Costs
[50]
As
far as costs are concerned, I am not convinced by the argument of the
Div-Prop liquidators that the counter-application is vexatious
and
that a punitive costs order is justified. The interpretation of the 8
July 2014 order and the relevant provisions of the 1973
Act and the
2008 Act is not straightforward. It cannot be said that City Capital
did not have an arguable case. The Div-Prop liquidators
further
contend that the wasted costs resulting from the postponement on 18
April 2016 ought to be paid by City Capital on a punitive
scale. The
circumstances that led to that postponement do not justify the
application of a punitive scale.
Order
[51]
It
is ordered that:
1.
the application of the first intervening party (City Capital SA
Property Holdings Ltd) for the striking out
of certain parts of the
applicants’ answering affidavit in the counter-application, is
dismissed with costs, including the
costs of two counsel.
2. the counter-application
of the first intervening party for the relief in paragraphs 3.1 and
3.2 of the notice of
counter-application, is dismissed with costs,
including the costs of two counsel.
___________________________
VAN
ROOYEN, AJ
Heard:
15 August 2016
Delivered:
10 October 2016
Counsel
for applicants: S du Toit SC and T Prinsloo
Attorneys
for applicants: Lombard & Kriek, Bellville
Counsel
for the first intervening party: A Oosthuizen SC and R Howie
Attorneys
for the first intervening party: Werksmans, Cape Town
[1]
Gcabashe v
Nene
1975 (3) SA 912
(D)
at 914H
[2]
The Master of
the High Court (North Gauteng High Court, Pretoria) v Motala NO &
Others
2012 (3) SA 325
(SCA) para [14]
[3]
Schedule 5, item
9(1), which reads as follows:
“
Despite
the repeal of the previous Act, until the date determined in terms
of sub-item (4), Chapter 14 of that Act continues to
apply with
respect to the winding-up and liquidation of companies under this
Act, as if that Act had not been repealed subject
to sub-items (2)
and (3).”
[4]
See
the wording of several provisions of chapter 14 of the 1973 Act,
such as ss 391, 402 and 404-406
[5]
See the approach
to interpretation explained in
Natal
Joint Municipal Pension Fund v Endumeni Municipality
2012 (4) SA 593
(SCA) at para [18]
[6]
Gore, supra,
para [30]
[7]
Gore, supra,
para [34]
[8]
Finishing
Touch 163 (Pty) Ltd v BHP Billiton Energy Coal South Africa Ltd and
Others
2013 (2) SA 204
(SCA) para [13]
[9]
Natal Joint
Municipal Pension Fund, supra
[10]
Natal Joint
Municipal Pension Fund
,
supra