THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Not Reportable
Case no: 490/2022
In the matter between:
THE SOUTH AFRICAN MEDICAL
ASSOCIATION TRADE UNION APPELLANT
and
THE SOUTH AFRICAN MEDICAL
ASSOCIATION NPC FIRST RESPONDENT
THE REGISTRAR OF
LABOUR RELATIONS SECOND RESPONDENT
Neutral citation: The South African Medical Association Trade Union v The South
African Medical Association NPC and Another (Case no
490/2022) [2023] ZASCA 71 (24 May 2023)
Coram: GORVEN, MEYER, GOOSEN and MOLEFE JJA and MASIPA AJA
Heard: 8 May 2023
Delivered: 24 May 2023
2
Summary: Liquidation – unable to pay debts – indebtedness and inability to pay
bona fide disputed – just and equitable – wide discretion of court – discretion
properly exercised – appeal dismissed.
3
__________________________________________________________________
ORDER
______________________________________________________________________________
On appeal from: Gauteng Division of the High Court, Pretoria (Davis J, sitting as
court of first instance):
The appeal is dismissed with costs, including those consequent on the employment
of two counsel.
__________________________________________________________________
JUDGMENT
__________________________________________________________________
Gorven JA (Meyer, Goosen and Molefe JJA and Masipa AJA concurring)
[1] This appeal arises from the dismissal of an application for a final winding-up
order. The South African Medical Association NPC , the first respondent in this
matter (SAMA), which has functioned since 1927, is a non -profit company
registered under the company laws of South Africa. It represents and serves the
needs of medical professionals. Some of these are employed by the State (public
sector employees) and others are self -employed or employed in the private sector
(private sector members). In 1995, the Labour Relations Act 66 of 1995 (the LRA)
was promulgated. It provided that only registered trade unions could represent the
public sector employees at the bargaining councils or the C ommission for
Conciliation, Mediation and Arbitration. As a result, SAMA established the South
4
African Medical Association Trade Union (SAMATU).1 SAMATU is the appellant
in this appeal and was registered in 1996 in terms of s 96(7)(a) of the LRA. It is the
relationship between SAMA and SAMATU which is at the core of the matter before
us.
[2] It is common ground that SAMATU never functioned as a separate entity from
SAMA. SAMA conducted it as one of its divisions. No bank account was opened
for it. No audited financial statements were prepared as required by the LRA. On
10 October 2019, by order of the Gauteng Division of the High Court, Pretoria,
SAMATU was placed under administration in terms of s 103A(1)(a) of the LRA.
On 27 February 2020, Mr Gerhard Vosloo was appointed administrator (the
administrator). His remit was to render SAMATU fully functional.
[3] The administrator came to learn that deductions had been, and were being,
made from the salaries of the public sector employees by way of the PERSAL system
(the PERSAL deductions) . This is a payroll system used to pay all public sector
employees. These were paid into the account of SAMA. Private sector members paid
their membership fees by way of debit orders. It is common ground that PERSAL
deductions could only lawfully be made in respect of trade union membership
subscriptions and levies. These deductions gave rise to the present dispute. SAMA
claimed that they were membership fees of SAMA. It acknowledged that the
amounts in question ‘may have been incorrectly debited via PERSAL’ but stated
that this did not mean that they were trade union subscriptions and levies due to
SAMATU. The administrator, on the other hand, took the contrary view.
1 SAMATU was originally named the Medical Association of South Africa Trade Union. On 7 October 2002 , it
changed its name to SAMATU.
5
[4] It is also common cause that all the public sector employees were members of
SAMA. The issue was wh ich of those members were also members of SAMATU.
Without that information, the administrator was unable to contact them or to provide
them with services. The administrator’s r equests to SAMA to provide him with
particulars of SAMATU members fell on deaf ears.
[5] As a result, the administrator and SAMATU approached the Labour Court on
the basis of urgency. The first respondent was SAMA. This resulted in an order being
granted by Van Niekerk J, the material parts of which were:
‘2. It is declared that all amounts deducted in favo ur of the second applicant on the PERSAL
payroll system pursuant to the right to the deduction of trade union subscriptions and levies in
terms of s 13 of the Labour Relations Act, were remitted in terms of s 13(3)2 to and for the account
of the second applicant.
3. It is declared that in the absence of any proof to the contrary, all SAMA members in respect
of whom such stop order deductions were and continue to be made through the PERSAL payroll
system, are and remain members of the second applicant.’
Van Niekerk J refused leave to appeal this order and a petition to the Labour Appeal
Court was pending at the time the application leading to the present appeal was
launched. Subsequent to that, however, and prior to the papers in the present matter
being finalised, the petition was refused by both that court and the Constitutional
Court.
[6] In paragraph 1 of the order, SAMA was directed to provide documents and
information to the administrator. It declined to do so pending the outcome of those
applications for leave. A dispute also arose over the interpretation of paragraphs 2
and 3 of the order set out above. This prompted the administrator , as the first
2 There was no dispute that this was intended to be a reference to s 13(1) and (2) and not s 13(3). These sections will
be dealt with later.
6
applicant, and SAMATU as the second applicant duly represented by the
administrator, to approach the Gauteng Division of the High Court, Pretoria (the
high court) for a final winding up order against SAMA. Th e first ground was that
SAMA was unable to pay its debts . The administrator claimed that the PERSAL
deductions rendered SAMA indebted to SAMATU in the sum of R307 million and
that SAMA had failed to satisfy its indebtedness . The second, alternative , ground
was that it was just and equitable for SAMA to be finally wound up. The second
respondent, which was cited as an inter ested party, did not take part in either the
application or the appeal.
[7] The contention that SAMA was unable to pay its debts placed reliance on the
provisions of s 344 read with s 345 of the Companies Act 61 of 1973 (the old Act).
In this SAMATU sought to prove, in the alternative:
(a) that SAMA was deemed to be unable to pay its debts in terms of s 344(f) read
with s 345(1)(a)(ii) of the old Act. This provision deems a company to be unable to
pay its debts if a letter of demand is delivered in a certain manner and the debt or
fails to ‘pay the sum, or to secure or compound for it to the reasonable satisfaction
of the creditor’ within three weeks of delivery. This ground was abandoned on
appeal;
(b) that, if it could not rely on the deeming provision, SAMA was factually unable
to pay its debts in terms of s 344(f) read with s 345(1)(c) of the old Act. This requires
a creditor to prove ‘to the satisfaction of the Court that the company is unable to pay
its debts’. Under that section, SAMATU had to prove that it was a creditor and that
SAMA was unable to satisfy its indebtedness.
[8] The contention that it was just and equitable to wind-up SAMA was founded
on s 344(h) of the old Act. This provided that a ‘company may be wound up by the
7
Court if . . . it appears to the Court that it is just and equitable that the company
should be wound up ’. Somewhat curiously, SAMATU also relied on s 81(1)(c)(ii)
of the Companies Act 71 of 2008 (the new Act) which applies to the winding-up of
a solvent company. As will be seen in due course, it is not necessary to go into this
issue.
[9] The high court (per Davis J) held that the alleged indebtedness of SAMA to
SAMATU was disputed on bona fide grounds and that SAMA could therefore not
be wound up on the basis that it was unable to pay its debts. He briefly considered
whether it was just and equitable to finally liquidate SAMA and concluded that this
was not the case. He accordingly dismissed the application but ordered that each
party should pay its own costs. The appeal before us is with his leave.
[10] Prior to the hearing of the appeal, certain events took place. T he
administration of SAMATU was terminated and the administrator discharged. This
left SAMATU as the sole appellant. SAMATU abandoned its reliance on the
provisions of s 81(1)(c)(ii) of the new Act. It also conceded that it could not rely on
the deeming provisions of s 345(1)(a)(i) of the old Act. This left two issues for
decision. Had SAMATU shown that SAMA was indebted to it and was unable to
pay its debts? And, if not, was it just and equitable that SAMA be liquidated?
[11] It is appropriate to deal first with the ground that SAMA is unable to pay its
debts. SAMATU relied primarily on the order of Van Niekerk J to found the
indebtedness of SAMA to it. It argued that all the PERSAL deductions which had
been made, and were being made, were due to it. It contended that this was the effect
of paragraphs 2 and 3 of the order set out above.
8
[12] On the other hand, in both its papers and its heads of argument, SAMA argued
for a very different interpretation. It interpreted the phrase ‘all amounts deducted in
favour of the second applicant on the PERSAL payroll system’ as follows. Because
the deductions had been made at the instance of SAMA and were deposited into its
account, they were not made ‘in favour of’ SAMATU. They were thus not ‘remitted
to and for the account of’ SAMATU. As such, the order did not mean that SAMATU
had been, or was, entitled to any of the PERSAL deductions. In the second place,
SAMA contended that paragraph 3 of the order applied only to SAMA members
absent ‘proof to the contrary’. It was therefore open to SAMA members to show that
they had not intended the deductions to be made in favour of SAM ATU. If SAMA
members elected to belong solely to SAMA, the past deductions could not be
considered to have been in favour of SAMATU.
[13] The locus classicus on the approach to interpreting court orders is set out in
Eke v Parsons:
‘The starting point is to determine the manifest purpose of the order. In interpreting a judgment or
order, the court’s intention is to be ascertained primarily from the language of the judgment or
order . . . and the court’s reasons for giving it must be read as a whole in order t o ascertain its
intention.’3
[14] The plain meaning of th e two paragraphs in question is that all members of
SAMA whose deductions had been made via PERSAL in the past were members of
SAMATU. Those deductions should have been paid to SAMATU. If deductions via
PERSAL continued to be made from salaries of those members without the ir
terminating the mandate of their employer to do so, th ey would continue to be
3 Eke v Parsons [2015] ZACC 30; 2016 (3) SA 37 (CC) para 29.
9
regarded as members of SAMATU. Those deductions would then also be due to
SAMATU. This much appears from a textual analysis.
[15] This is buttressed by the reasoning in the judgment which provides the
immediate context for the order . It is made clear in the following passage in the
judgment:
‘To the extent that SAMA denies that the subscriptions de ducted from the remuneration of those
of its members who are employed by the state accrue to [SAMATU], the statutory basis on which
the deductions are made and remitted is such that only [SAMATU] is the proper beneficiary of
those funds. Those of SAMA’s me mbers who have been and remain party to authorisations to
effect deductions from the PERSAL payroll system are union members, since only union members
may grant such authorisations to a registered trade union. They remain bound by those
authorisations until the authorisations are validly terminated.’
Further clarity is lent by the following passage:
‘Given that the stop order deductions in place in respect of doctors employed in the public sector
[were] deductions made in terms of s 13 of the LRA and solely for the benefit of the union, the
union is entitled to a declaratory order to that effect, as well as a declaratory order to the effect that
all employees in respect of whom such stop orders were and are being made, are union members,
at least for as long as they have not terminated their membership of the union.’
[16] It is also consistent with the reference to s 13(1) and (2) of the LRA in
paragraph 2 of the order. They provide:
‘(1) Any employee who is a member of a representative trade union may authorise the employer
in writing to deduct subscriptions or levies payable to that trade union from the employee's wages.
(2) An employer who receives an authorisation in terms of subsection (1) must begin making the
authorised deduction as soon as possible and must remit the amount deducted to the
representative trade union by not later than the 15th day of the month first following the date each
deduction was made.’
10
Deductions under that section may only be paid to trade unions. Since SAMA states
that it was not a trade union and specifically set up SAMATU in order for its public
sector employees to enjoy the benefits offered by one, it can only mean that the entity
in favour of which the deductions were made was SAMATU and not SAMA. This
confirms the agreement between the parties referred to above that the only lawful
deductions via PERSAL are for ‘subscriptions or levies payable to [a] trade union’.
[17] In argument, S AMA retreated from its initial position and accepted that the
order meant that deductions made via PERSAL up to the date of the order had been
made in favour of SAMATU. As such, since SAMA had received them , it was
obliged to account for them to SAMATU. Likewise, any deductions made thereafter
should be accounted for if the persons in wh ose name they were made remained
members of SAMATU. This concession was well-made. It is so, as SAMA argued,
that if public sector employees revoke the authority of their employer to deduct the
contributions from their salaries via PERSAL, SAMATU would not be entitled to
their contributions from the date on which the notice to terminate elapsed in terms
of s 13(3) of the LRA.4
[18] This, however, did not without more establish that SAMA was indebted to
SAMATU. The submission of SAMATU was that the indebtedness of SAMA was
undisputed. SAMATU argued that the financial statements of SAMA of
31 December 2019 showed that indebtedness in an amount of at least some
4 Section 13(3) of the LRA provides:
‘An employee may revoke an authorisation given in terms of subsection (1) by giving the employer and the
representative trade union one month's written notice or, if the employee works in the public service, three months ’
written notice.’
11
R32.5 million was not disputed. In support, SAMATU referred to a note in those
financial statements which reflected a loan from SAMATU in that sum. What this
submission ignored, however, was the full content of that note. It explained that the
loan had been reflected as such due to the order of van Niekerk J but that the
management of SAMA was of the view that ‘expenses related to servicing the public
members also need to be shared’ by SAMATU. This certainly falls short of an
undisputed indebtedness. The submission o f SAMATU to that effect falls to be
rejected.
[19] In its affidavits, SAMA TU accepted that, since SAMA had operated
SAMATU as one of its divisions, it had incurred costs in doing so . Likewise,
SAMATU accepted that certain administrative costs should be shared between
SAMA and SAMATU. Contrary to this concession, however, in both oral argument
and its heads of argument , SAMATU ignored the fact that an overall indebtedness
on the part of SAMA, which took account of those costs, had to be shown . It
contended that all that was necessary to show an indebtedness was that moneys due
to SAMATU had been paid to SAMA.
[20] That submission is clearly incorrect. In order to arrive at the conclusion that
SAMA is indebted to SAMATU, it must be shown that the income received on
behalf of SAMATU exceeded the expenditure incurred on its behalf. In a
supplementary answering affidavit, SAMA put up an affidavit by one Dr van
Romburgh, a chartered accountant with a PhD in forensic accounting. He set out to
quantify and reconstruct ‘the income received and expenses incurred by SAMA on
behalf of SAMATU during the period 1996 to 2019, so as to ultimately determine
an attributable portion of equity to each’. He concluded that, since 1998, the public
sector employees had been subsidised by the private sector members to the tune of
12
between R15.6 million and R30.7 million . As such, the expenses attributable to
conducting the affairs of SAMATU exceeded the PERSAL deductions during that
period. He made it clear that the exercise he had undertaken was compl ex and that
the outcome was by no means ‘absolutely conclusive’. This evidence was not
addressed by SAMATU in its supplementary replying affidavit. As such, it at the
very least casts doubt on the assertion by SAMATU that SAMA is indebted to it.
Whether or not that will ultimately prove to be the case, on the papers the
indebtedness is disputed on bona fide grounds.
[21] In addition, even assuming that SAMATU showed an indebtedness on the part
of SAMA, the latter put up its draft balance sheet as at 31 December 2020 showing
that it is not insolvent. It also testified that it was able to satisfy any indebtedness to
SAMATU which might be proved. This evidence, too, was left unchallenged by
SAMATU. It is fair to say that in the founding papers the issue whether SAMA was
able to satisfy any indebtedness to SAMATU or to pay its debts as and when they
fell due was not dealt with at all.
[22] As a result, these two factors combine to mean that no case was made out that
SAMA was unable to pay its debts within the meaning of s 344(f) read with
s 345(1)(c) of the old Act. The indebtedness was disputed on bona fide grounds and
it was not shown that SAMA could not satisfy any such indebtedness. The
conclusion of Davis J that a case had not been made out that SAMA was unable to
pay its debts, cannot be faulted.
[23] That then brings into focus the second ground relied upon by SAMATU that
it was just and equitable for SAMA to be wound up. This SAMATU was obliged to
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prove on a balance of probabilities. 5 In Cuninghame and Another v First Ready
Development 249 (Association Incorporated under Section 21) (Cuninghame),
Brand JA held:
‘As has often been said about the only remaining winding-up ground persisted in by the appellants,
namely that of “just and equitable” - it postulates not facts but a broad conclusion of law, justice
and equity.’6
In that matter, this Court mentioned with approval the recognition, in Rand Air (Pty)
Ltd v Ray Bester Investments (Pty) Ltd,7 of five broad categories of circumstances in
which a final winding up order ha d been granted on the just and equitable ground .
These were:
(a) The disappearance of the company’s substratum.
(b) The illegality of the objects of the company and fraud pursuant to this.
(c) Deadlock to the extent that the only solution is to wind up the company.
(d) Circumstances where, if it was a partnership, wo uld result in the court
dissolving the partnership on the ground that it would be just and equitable to do so.
(e) Oppression towards minority shareholders regardless of whether they might
have other remedies under the company laws.
Cuninghame, however, cautioned against viewing these broad categories as a closed
list.
[24] A court’s power to grant a winding-up order is a discretionary power. This is
so on any ground u nder s 344 of the old Act .8 As with any such discretion, it must
be exercised on judicial grounds and not whimsically. In arriving at the conclusion
5 Paarwater v South Sahara Investments (Pty) Ltd [2005] ZASCA 4; [2005] 4 All SA 185 (SCA) para 3.
6 Cuninghame and Another v First Ready Development 249 (Association Incorporated under Section 21) [2009]
ZASCA 120; 2010 (5) SA 325 (SCA); [2010] 1 All SA 473 (Cuninghame) para 3.
7 Rand Air (Pty) Ltd v Ray Bester Investments (Pty) Ltd 1985 (2) SA 345 (W) at 350A–I.
8 F & C Buildi ng Construction Co (Pty) Ltd v Macsheil Investments (Pty) Ltd 1959 (3) SA 841 (N) at 844; Re JD
Swain Ltd [1965] 2 All ER 761 (CA) at 762.
14
that it is just and equitable to wind up a company, a court must weigh in the scale all
relevant factors. In particular, it must assess th ose factors relied upon by the
applicant for liquidation. It is thus appropriate to begin with these.
[25] SAMATU advanced three such factors in its heads of argument, the first being
that SAMA’s substratum, as an alleged trade union, had disappeared. Even assuming
that SAMA itself functioned as a trade union, which is at least doubtful, that was
and is not its only substratum . SAMATU made out no case that the balance of
SAMA’s objects could no longer be fulfilled. The Memorandum of Incorporation of
SAMA lists ten objects. Of these, only one could conceivably relate to SAMA
performing trade union function s. Reference to only the first three objects will
suffice to demonstrate this:
‘2.1.1 [To] represent the medical profession with authority and credibility, collective ly and
individually, in all matters, and to act as the principal co -ordinating and negotiating body for the
medical profession,
2.1.2 [To] serve the needs of members of SAMA to enable them to function optimally as
professionals,
2.1.3 [To] promote health through the expertise and influence of the medical profession’.
By no stretch of the imagination can it be said that if SAMA forgoes any role as a
trade union, it no longer has valid objects to fulfil.
[26] This is confirmed by the fact that SAMA had a membership of 16 000 medical
professionals. Even at the highest estimate of there being 4 000 public sector
employees who have elected to be sole members of SAMATU, 12 000 members
remain, including some 4 000 public sector employees who have elected not to
belong to SAMATU. SAMA provides a range of services to its members. In doing
so, SAMA has 78 employees and supports in excess of 100 contractors. As will be
15
seen below, it also plays a significant role in the wider medical environment in South
Africa. The ground that the substratum of SAMA has disappeared has no merit.
[27] The second factor advanced by SAMATU was that SAMA had functioned
unlawfully over a period of some two decades. The averments in this regard boiled
down to the following:
(a) SAMA had abused the corporate personality of SAMATU by using it to
unlawfully divert and misappropriate funds to which SAMATU was, by law,
entitled.
(b) After SAMATU was placed under administration, SAMA had refused to co-
operate with the administra tor, thus co mmitting a ‘serious breach of the Labour
Relations Act, the terms of the administration order, and the Labour Court order.’
[28] Regarding the first of these, the case made out by SAMATU itself was that
SAMA ‘exercised complete control over the affairs of [SAMATU] and treated it for
all intents and purposes as an operating division of SAMA .’ SAMATU also
contended that ‘the Trade Union concluded various bargaining council agreements
with employers, with other trade unions, and with various bargaining councils’ and
‘partnered with another trade union, Denosa, to obtain organisational rights in terms
of the LRA ’. What this must mean is that SAMA performed those functions on
behalf of SAMATU since it was run as a division of SAMA. This does not amount
to diversion and misappropriation of funds on the part of SAMA. The ambit of any
potential unlawfulness was twofold. First, SAMA did not keep separate books and
bank accounts for SAMATU. Secondly, SAMA had requested Treasury to pay the
PERSAL deductions into its account rather than a n account in the name of
SAMATU. Treasury acceded to this request and would , on that reasoning, have
participated in the unlawful activity.
16
[29] As to the second of these, SAMA took the view that it was entitled to the
subscriptions as membership fees rather than trade union subscriptions or levies. It
claimed to have used them in serving its members. At least some use on behalf of
SAMATU is uncontested. The public sector employees had elected to be members
of SAMA. As mentioned above, SAMA contested the interpretation of the order of
Van Niekerk J right up to the hearing of the appeal. In this, it erred. The approach of
SAMA can certainly be characterised as obdurate but it hardly demonstrates
unlawfulness on its part.
[30] SAMA certainly failed to co-operate with the administrator. That obstructive
conduct had the effect of undermining the attempt s of the administrator to perform
his duties. The administrator had instructed the Department of Health to change the
bank account into which the PERSAL deductions were deposited. This prompted
SAMA to apply urgently to prohibit the Department of Health from paying the
PERSAL deductions into the account nominated by the administrator. Th at
application was refused. SAMA then launched an application to review the decision
of the Department of Health to pay the PERSAL deductions into that account. The
outcome of that application was not disclosed on the papers. All of this was done in
the mistaken belief that SAMATU was not entitled to the PERSAL deductions. Even
after the order of Van Niekerk J was made , SAMA refused to provide the
administrator with particulars of the public sector employees. This conduct must be
strongly deprecated even though SAMA was entitled to pursue avenues to appeal
that order and to protect its interests. It was not, however, unlawful conduct.
[31] Even if certain of the conduct of SAMA can be said to have been unlawful,
the present matter differs markedly from those cases where the entire conduct of a
company was unlawful. It appears to have been on that basis that the courts have
17
held that it was just and equitable to wind-up a company. One such example was
Cuninghame. There, an association not for gain , incorporated under s 21 of the old
Act, had as its sole object the running of a purely commercial enterprise.
Section 21(1)(b) of the old Act required such a company to have as its main object
the promotion ‘of . . . religion, arts, sciences, education, ch arity, recreation, or any
other cultural or social activity or communal or group interests’. Section 21(2)(a)
required the memorandum of the company to provide that all income and property
would be ‘applied solely towards the promotion of its main object’. This Court held
that, since the company was conducting a purely commercial enterprise, ‘[b]oth its
main object and its business [were] . . . in contravention of s 21(1)(b) and therefore
unlawful’.9 As a result, it was wound-up on the basis that it was jus t and equitable
to do so . In the present matter, there is no such averment concerning SAMA. The
second factor advanced by SAMATU does not, certainly in and of itself, mean that
it is just and equitable to wind-up SAMA.
[32] The third factor advanced by SAMATU was that the relationship between
SAMA and SAMATU w as akin to th at of a partnership . As such, SAMATU was
entitled to an account, debatement of the account, and payment over of amounts due.
This, of course, operates to undermine the contention of SAMATU that it had shown
that there was an undisputed indebtedness in a certain amount. The relationship
between them lacks the character of a partnership. That said, h owever, SAMA
conducted SAMATU’s affairs on its behalf , both receiving funds due to it and
incurring costs in doing so. As was conceded in argument, this means that SAMATU
is entitled to such an account, debatement and payment over. This is a factor which
must be weighed in the balance in the just and equitabl e enquiry. However, unless
9 Cuninghame para 26.
18
liquidation is the only way in which SAMATU can give effect to that entitlement,
that factor cannot be decisive. It is clear that SAMATU has a legal remedy to require
SAMA to account to it. In the light of the disputed indebtedness to it, that was the
more appropriate remedy for SAMATU to have invoked.
[33] A number of factors weigh in favour of SAMA in this determination. It has
been operating since 1927. It is solvent and has 12 000 health profession members
who look to it for the services it offers and performs. The board of management i s
functional. It has 78 employees and supports more than 100 contractors. Affidavits
were put up in opposition to the liquidation of SAMA by Dr Ryan Noach, the Chief
Executive Officer of D iscovery Health, and Dr Unben Pillay, the Chief Executive
Officer of Alliance of South Africa Independent Practitioners Association. The
former averred that:
‘[T]he winding-up of SAMA will be to the detriment of the entire medical fraternity in South
Africa as the services rendered by SAMA to its members and the remainder of the medical industry
(public and private hospitals , medical aid companies, insurance companies and the like) is
invaluable. Should SAMA be wound-up, the entire medical industry in South Africa will suffer as
a result thereof.’
And the latter said something similar and, in addition, gave a concrete example:
‘… SAMA is responsible for the creation and maintenance of the entire coding system used in the
medical industry. Without those codes, the medical industry will be severely hamstrung and the
operation of the entire medical industry, would be severely prejudiced.’
The countervailing considerations, and, in particular the obdurate and obstructive
behaviour of SAMA towards the erstwhile administrator and SAMATU itself , as
well as the need to obtain an account of its operation of SAMATU, cannot be said
to tip the scales in favour of a winding -up. Despite the fact that Davis J dealt with
the just and equitable ground somewhat cryptically, his conclusion that it was not
just and equitable to liquidate SAMA can also not be faulted.
19
[34] SAMA submitted that SAMATU did not have the requisite locus standi to
apply for its liquidation. It is not necessary to decide th at issue in the light of the
conclusion to which I have come. For the purposes of the appeal I shall assume ,
without deciding, in SAMATU’s favour that it has the necessary locus standi.
[35] SAMATU submitted that, should the appeal be dismissed, each party shou ld
pay its own costs. I disagree. It failed to make out a case for liquidation and, in fact,
misconceived its legal remedy, thus causing SAMA to incur costs in resisting the
application and subsequent appeal.
[36] In the result, the following order issues:
The appeal is dismissed with costs, including those consequent on the employment
of two counsel.
____________________
T R GORVEN
JUDGE OF APPEAL
20
Appearances
For appellant: P A Swanepoel SC, with D J Groenewald
Instructed by: Serfontein Viljoen & Swart, Pretoria
Van Den Berg Van Vuuren Attorneys, Bloemfontein
For first respondent: D M Fine SC, with M J Cooke
Instructed by: Werksmans Attorneys, Sandton
Matsepes Attorneys, Bloemfontein