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[2020] ZAWCHC 30
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Van Zyl v Master of the High Court, Western Cape Division, Cape Town and Another (16839/2018) [2020] ZAWCHC 30 (30 April 2020)
Republic of South Africa
IN
THE HIGH COURT OF SOUTH AFRICA
(WESTERN
CAPE DIVISION, CAPE TOWN)
Case No.
16839/2018
Before:
The Hon. Mr Justice Binns-Ward
Hearing: 10 February
2020
Judgment: 30 April
2020
In the matter
between:
CHRISTOPHER PETER
VAN
ZYL
Applicant
and
THE MASTER OF THE
HIGH COURT, WESTERN CAPE
DIVISION, CAPE
TOWN
First
Respondent
REUBEN
MAPHAHA
Second
Respondent
JUDGMENT
(Transmitted
by email to the parties’ legal representatives and posted on
SAFLII. This judgment shall be deemed to have been
handed down at
10h00 on Thursday,
30 April
2020.)
BINNS-WARD
J
Introduction
[1]
Section 381(1) of the Companies Act 61 of 1973 (‘the Companies
Act’) provides that the Master ‘shall take
cognizance of
the conduct of liquidators and shall, if [s]he has reason to believe
that a liquidator is not faithfully performing
his duties and duly
observing all the requirements imposed on him by any law or otherwise
with respect to the performance of his
duties, or if any complaint is
made to him [/her] by any creditor, member or contributory in regard
thereto, enquire into the matter
and take such action thereanent as
[s]he may think expedient’. The members of Asch
Professional Services (Pty) Ltd,
a company in the course of being
voluntarily wound up, submitted a complaint to the Master of the High
Court, Cape Town (‘the
Master’), about an aspect of the
fees levied by the liquidators. The complaint prompted the
Master to initiate an enquiry
into the conduct of Christopher Peter
van Zyl, a prominent Cape Town-based insolvency practitioner.
The decision to enquire
into Van Zyl’s conduct was announced in
the context of the institution of litigious proceedings by Van Zyl at
the time for
the setting aside of the Master’s refusal to
reinstate him on her panel of insolvency practitioners available to
take appointments,
from which he had earlier been removed at his own
request at a time when he was in poor health. The intended
enquiry was
not limited to Van Zyl’s conduct as liquidator of
Asch Professional Services (Pty) Ltd. It extended initially to
12
other estates and was subsequently extended to 16 estates.
(Two of these concerned trusteeships of the insolvent estates of
natural persons and were actually not susceptible to s 381 of
the Companies Act.)
[2] In
announcing her intention that a wide enquiry should be undertaken the
Master expressed the opinion that Van Zyl had been
guilty of a
‘widespread practise’ (sic) whereby he fraudulently
misrepresented the financial position of liquidated
companies and
defrauded creditors, members and insolvents for his own unjust
enrichment. She indicated that an enquiry hearing
would be
convened under the chairmanship of a senior counsel at the Cape Bar.
However, after a procedural management meeting
in that
counsel’s chambers during March 2014, it was announced that an
official in the Master’s office would preside
over the hearing
instead. There was some suggestion that the change in plan was
inspired by cost considerations and also
a concern that it might be
inappropriate for the Master’s statutory functions to be
discharged by a person outside the Master’s
office. In
the event, one Reuben Maphaha, a deputy master in the office of the
Master of the High Court, Johannesburg, was
nominated to undertake
the enquiry. Maphaha was appointed as an ad hoc Deputy Master
in the Master’s office in Cape
Town to clothe him with the
required authority to fulfil the function.
[3] The Master’s concerns about Van Zyl’s conduct were
set forth in a letter dated 26 February 2014. Van
Zyl
furnished a very full response to them through his attorneys in a
90+- page letter, dated 12 May 2014. Amongst
other
matters, the response pointed out that some of the estates in respect
of which the Master had indicated that she wished to
investigate Van
Zyl’s conduct had been finally wound up and that he had
consequently been discharged from office in the ordinary
course, with
the result that she no longer enjoyed jurisdiction or control over
him in those liquidations. A lengthy pause
then intervened,
whereafter, on 15 August 2014, the Master announced that the
enquiry would investigate Van Zyl’s conduct
as liquidator of 10
identified companies in liquidation. The Master furnished
particulars of the respects in which
it was alleged that Van
Zyl’s conduct had been lacking or unlawful in those matters.
These were framed as so-called
‘charges’ for him to meet
at a forthcoming hearing to be presided over by Maphaha.
[4]
The originally provided list of charges was later substantially
supplemented in terms of a further letter from the Master, dated
8
October 2014. The supplemented charges introduced new matter
with which Van Zyl had not had the opportunity to deal in
his
previous representations. He responded to the new matter
through his attorneys in a letter, dated 19 December 2014.
[5] It
bears mention that Van Zyl dealt extensively in his representations
to the Master with the nature and mechanics of certain
investments
that he had made on behalf of the companies under his administration
in a number of Nedbank Corporate Saver call and
fixed deposit
accounts. He explained that the investments, which were
directed at realising greater returns than could be
obtained using
deposit accounts freely available to the public, were effected using
the facilities of BLM Administration Services
(BLM), which was a
registered financial services provider.
[6]
The enquiry hearing before Maphaha commenced in February 2015 and
proceeded at intervals until December of that year.
The Master
engaged senior and junior counsel to lead evidence against Van Zyl,
who was himself represented at the hearing by senior
counsel.
Maphaha heard oral argument from counsel at a sitting of the enquiry
in March 2016 and delivered his findings, in
writing, two months
later, in May 2016. He found that Van Zyl had misconducted
himself in various respects that I shall particularise
presently.
In accordance with the scheme to which the parties had agreed at the
outset of the enquiry hearing, Maphaha postponed
the proceedings to a
date to be arranged for the purpose of ‘sanction’; in
other words, for the determination of what
action should be taken
against Van Zyl in consequence of the findings of misconduct.
[7]
Van Zyl testified that during the enquiry he had a conversation with
Maphaha in the cloakroom during an adjournment at one of
the
sessions, in the course of which the latter had informed him that he
was puzzled by his role in the proceedings as a decision
had already
been made on its outcome. Van Zyl’s legal representatives
verbally confirmed the reported occurrence of
the incident to the
Master’s legal representatives on the same day, and shortly
thereafter in writing. It was only
several months later that
the State Attorney wrote to Van Zyl’s attorneys stating that
their instructions were that Maphaha
denied having said anything of
the sort. Maphaha has not made an affidavit in these
proceedings denying the allegation.
[8] On
20 September 2016, and before the resumption of the hearing for
the second stage of the proceedings, Van Zyl instituted
the current
application to review and set aside the findings of misconduct made
by Maphaha. The Master was cited as the first
respondent and
Maphaha as the second respondent. Van Zyl averred that the
matter was ripe for review at that stage and that
he was not required
in principle to await the decision of the action to be taken against
him before instituting a litigious challenge,
whether in terms of s 6
of the Promotion of Administrative Justice Act 3 of 2000 (PAJA), or
(in respect of the findings made
concerning his conduct of the
liquidation of companies that were being wound up by reason of their
inability to pay their debts)
s 151
of the
Insolvency Act 24 of
1936
. Insofar as the application was brought in terms of
s 151
,
the founding papers failed to identify which of the companies in
liquidation concerned in the investigation had been wound up
because
of their inability to pay their debts. The Master gave notice
of her intention to oppose the application. The
further conduct
of the application was thereafter delayed because of a dispute
between the protagonists about the adequacy of the
administrative
record that the respondents were required to make available in terms
of Uniform
Rule 53(1)(b).
[9]
The dispute about the administrative record was still unresolved
when, on 2 May 2017, the Master informed Van Zyl by letter
that
she intended to remove him from his appointments as liquidator in
terms of s 379(1) of the 1973 Companies Act and invited
him to make
representations why she should not do so. Van Zyl’s
subsequently submitted representations were unsuccessful
and he was
informed by letter, dated 31 August 2017, that the Master had
withdrawn all of the appointments that he held as
liquidator under
the aegis of her office. The Master’s decision to remove
Van Zyl from office was purportedly made
in terms of s 379(1)(b)
or (e) of the Act. A total of more than 100 companies was
involved.
[10]
On 5 September 2017, Van Zyl instituted a second application for the
review and setting aside of the Master’s decision
to remove him
from office. That application was also brought in terms of
PAJA, alternatively,
s 151
of the
Insolvency Act. The
current application was left in abeyance while the second review
application took up the momentum.
[11]
Mr van Zyl was successful at first instance in the second review
application in having the Master’s decision to remove
him from
office set aside in respect of all but the 10 companies identified in
the Master’s letter of 15 August 2014
mentioned in
paragraph [3] above. The Master appealed to the Full Court
(before myself, sitting with Ndita J (presiding)
and Samela J)
against the part of the judgment that had gone in favour of Van Zyl,
and he cross-appealed against the dismissal
of his application to
have his removal from office in the 10 identified companies set
aside. Van Zyl prevailed.
The appeal was dismissed and
the cross-appeal was upheld.
[12]
The Full Court’s judgment has been reported sub nom.
Master
of the High Court, Western Cape Division, Cape Town v Van Zyl
[2019] ZAWCHC 23
(6 March 2019);
[2019] 2 All SA 442
(WCC).
Much of the material that is germane to the first review application
currently under consideration was dealt with
in some detail in the
judgment that I wrote for the Full Court and I shall therefore seek,
by cross-reference to that judgment,
to avoid repetition as much as
practicable.
[13]
As the judgment of the Full Court sets out (at paras. 65-73),
the grounds upon which the Master purported to remove Van
Zyl from
office were the following: (i) that he had been in breach of
s 394
of the Companies Act in various respects in regard to his investments
in the Nedbank Corporate Saver Accounts using the services
of BLM,
(ii) that the accounts submitted by him in terms of s 403 of the
Act had been erroneous and misleading in material
respects; she took
especial umbrage at the erroneous accounts having been submitted
under affidavit (as required by the Act) notwithstanding
that it
could not be suggested that Van Zyl (or his co-liquidators, against
whom no action was taken) had acted perjuriously in
making the
affidavits; (iii) that his failure to notice the substantial fees
debited by BLM in respect of funds invested on fixed
deposit in the
Nedbank Corporate Saver accounts constituted ‘gross
incompetence’ and evidenced ‘a total dereliction’
of his duties as liquidator and (iv) that he had acted in breach of
his fiduciary duties in six instances, four of which related
to his
engagement of BLM, namely in not concluding a written mandate in
respect of BLM’s fees, in transacting with BLM in
the context
of an alleged absence of a justifiable basis for the fees, the
apparently arbitrary nature of the fees and the allegedly
‘grossly
excessive’ scale of the fees. The other two issues
treated as breaches of fiduciary duty were (a) that
Van Zyl had in
certain instances allowed funds invested in the Nedbank Corporate
Saver facility to remain on 7-day fixed deposit
even though the
returns offered on such deposits had fallen marginally below those
obtainable in respect of funds invested on call
and (b) that he had
failed to claim a tax credit on the value added tax that had been
paid on BLM’s fees in respect the funds
held on fixed deposit.
(The alleged failure to claim VAT credits was not a matter upon which
Van Zyl had been invited by
the Master in her aforementioned letter
of 2 May 2017 to make representations and it was not a ground that
the Master’s counsel
sought to defend in argument before the
Full Court.)
[14]
After the ultimate conclusion of the proceedings in the second review
application, the Master withdrew her opposition to the
current
application without having delivered answering papers. Despite
his achievement of substantive redress in the second
review
application, with the attendant substantial vindication,
notwithstanding some incidences of carelessness and negligence,
of
his conduct as a liquidator, Van Zyl has now enlisted the first
application for determination.
The
impugned findings
[15]
As observed in the judgment of the Full Court, the findings made by
Maphaha, which were set out in a document signed at Johannesburg,
dated 17 May 2016, and communicated under cover of a letter
under the letterhead of the Master of the High Court,
Johannesburg
,
were not particularly informative. He proceeded from the
premise that the enquiry over which he had presided had been
instituted
by the Master pursuant to a direction by the court that
she should institute it. That was plainly incorrect. The
findings
that he made were expressed in broad-brush terms without
meaningful reference to the evidence adduced over six days at the
hearing.
[16]
Mr Maphaha found that Van Zyl had contravened s 384(1) of
the Companies Act in that in the liquidation of Aquila
Insurance and
Healthcare Consultants (Pty) Ltd he had levied a fee in respect of a
loan raised from Absa Bank. He held that
Van Zyl had
contravened s 384(3) of the Act by framing the amount due in
terms of the loan as rental income. He observed
that the
‘payment made to himself [by Van Zyl] affected the dividends
that were to be paid to creditors’. He
noted that ‘the
amount of the fee was later refunded’ and regarded the refund
as having clearly shown ‘that Van
Zyl was very aware that his
conduct was in contravention of Section 384(3) of the Act’.
[17]
Mr Maphaha proceeded directly from the aforementioned findings,
and without furnishing any factual particularity or substantiating
reasoning, to conclude in the following paragraph of the findings
that, ‘[t]he pattern in all the 10 matters reflects the
mind-set that Mr Van Zyl was dishonest and reckless, and this clearly
constitutes misconduct’. In support of this conclusion
Maphaha made a footnote reference to
Fey NO and Whiteford NO v
Serfontein and Another
1993 (2) SA 605
(A) at 613A.
[18]
That case involved an appeal from the dismissal by Thirion J of
an exception to particulars of claim in which the plaintiffs
had
sought the removal of the trustees of an insolvent estate on the
grounds that they were unfit for the office. The questions
were
firstly, whether the courts enjoyed an inherent power at common law
to remove trustees whose continuance in office would be
prejudicial
to the estates under their administration and secondly, if they did,
whether the existence of the power had survived
the institution of
the statutory regime in terms of the
Insolvency Act. The
Appellate Division answered both questions affirmatively.
[19]
The passage in the judgment to which Maphaha referred pertained to
the first question, and read as follows: ‘
In the declaration
in the instant case there are averments (which, if the matter
proceeds to trial, may or may not be susceptible
of proof) which are
tantamount to charges of abuse of trust, dishonesty and recklessness
which may justifiably be termed ‘misconduct’
on the part
of the trustees. In my view Thirion J correctly decided the first
issue against the defendants.
’ The point of Maphaha’s
reference to the passage is not readily apparent, unless it was to
find support for the
trite proposition that dishonesty and
recklessness by a person holding a position with fiduciary
responsibility would constitute
good grounds for that person’s
removal from office. Even that was not relevant at that stage
of the enquiry, as ‘sanction’
had been deferred for later
consideration in a contemplated second stage of sittings.
[20]
Mr Maphaha then proceeded to make a number of findings to the effect
that by investing the surplus funds of the 10 companies
in question
in Nedbank Corporate Saver Accounts, to which facility Van Zyl had
obtained access through the intermediary services
of BLM, Van Zyl had
contravened
s 394(1)(b)
, (c) and (d) and s 394(3) of the
Companies Act. Maphaha made the following factual findings in
this connection: (i) that
Van Zyl had failed to obtain
authorisation from the Master for the said investments; (ii) that
he had used a ‘conduit
account’ that was not in the name
of the companies concerned as required in terms of s 394;
(iii) that he had deposited
the companies’ funds into
BLM’s Nedbank account thereby losing control over, and the
ability to ‘monitor’,
the money deposited into BLM’s
account; (iv) that he had outsourced the duties of the
co-liquidators to BLM; (v) that
he had erroneously reflected
BLM’s fees as a charge in the winding up of the companies
concerned, when, according to Maphaha,
the fees should have been
included in the liquidator’s fees having regard to the role of
BLM as nothing more than the liquidators’
agent.
[21]
Owing to the Master’s heavy reliance in her decision to remove
him from office on the basis of what she also considered
to have been
Van Zyl’s serious misconduct in relation to the conduct of the
Nedbank Corporate Saver account investments and
the alleged
contraventions of s 394 of the Companies Act related thereto,
the question was dealt with at length in the Full
Court judgment; see
in particular paras. 37-51; 58-62; 66-69; 77-80; 92-103 and
110-112 of that judgment. In short,
it was found by the Full
Court that Van Zyl’s conduct of the accounts had been
legitimate, and that the allegations that
he had contravened s 394
or had lost control of the funds were baseless. The accounts
were all held in the names of
the companies concerned and the funds
in them could be dealt with only on the written instructions of the
liquidators. It
was also found that Van Zyl had been justified
in engaging the services of BLM as independent service providers and
that his expenditure
in payment of BLM’s fees was
unexceptionable. The Full Court judgment moreover rejected the
idea that Van Zyl had required
authorisation from the Master to make
the investments. It was found that Van Zyl had been negligent,
however, in failing
to notice that BLM’s fees were being
debited from the interest earned on the monies held on fixed deposit
and also in not
noticing that, unusually, for a relatively short
period, the interest earned on fixed deposit in the Nedbank accounts
was marginally
less than that that could be earned on call. The
first of the aforementioned shortcomings in his conduct had resulted
in
the liquidation accounts submitted by him in terms of s 403
of the Companies Act being materially inaccurate, but had not
affected the dividends payable to creditors in any way, and the
second had had a very small, almost trifling, financial impact.
[22]
Mr Maphaha’s findings included what he described as a quotation
from the judgment of the Supreme Court of Appeal in
Standard Bank
of South Africa v The Master of The High Court and Others
2010
(4) SA 405
(SCA), but which was in fact an excerpt taken from the
headnote to the report in the South African Law Reports, concerning
the
trite proposition that liquidators occupy a position of trust in
respect of the companies under their administration and towards
the
companies’ creditors. The
Standard Bank
case
concerned a breach by the liquidators in that matter of their
fiduciary duties by, amongst other matters, applying the funds
of the
company in litigation in furtherance of the liquidators’
personal interests. The factual context of the matters
in issue
in that case bore no relationship to that in respect of the
allegations against Van Zyl. The reason for Maphaha’s
reference to the case is not altogether clear, but it may be inferred
that it was invoked in support of an implication that Van
Zyl had
been in breach of his fiduciary duties in some or other (unspecified)
way. The only bases for the implication discernible
in the
written findings are the abovementioned determinations that Van Zyl
had incorrectly computed his fee entitlement in respect
of the
winding up of Aquila Insurance and his supposed contravention of
s 394 of the Companies Act. The Full Court judgment
concluded that the Master’s apprehension that Van Zyl had been
in breach of his fiduciary duties by reason of his negligence
in
certain respects was misdirected; see the Full Court judgment at
paras. 72 and 106-109.
Grounds
of review
[23]
Van Zyl advanced the following grounds for review in terms of PAJA:
1. bias and ulterior purpose or motive;
2. procedural unfairness;
3. the findings were materially influenced by an error of law;
4. the findings were made because irrelevant considerations were
taken into account or relevant considerations were not considered;
5. the findings were not rationally connected to the information
before the decision-maker; and
6. the findings were so unreasonable that no reasonable
decision-maker could have made them.
Should
judicial review occur in the circumstances?
[24]
Virtually all of the applicant’s complaints were subsequently
subsumed in the review proceedings that were ultimately
determined on
appeal by the Full Court in the second application, and I therefore
do not consider that it would profitable to engage
with them again in
this judgment. It is clear from what was held in the Full
Court’s judgment that the findings made
by Maphaha are amenable
to review and being set aside. His findings predicated on s 394
were materially influenced by
an apprehension of the import of the
provision that was erroneous in law for essentially the same reasons
that the Master had been
in making her decision to remove Van Zyl
from his position as liquidator.
[1]
To the extent (which is not altogether clear) that he found that Van
Zyl had acted in breach of his fiduciary duties, he
was similarly
materially influenced by an error of law for the same reason as the
Master was.
[2]
His findings that Van Zyl had acted dishonestly were indicative that
he had not properly applied his mind to the evidence,
in other words
because relevant considerations were not considered. This may
be deduced from his failure to advance any reasons
for rejecting Van
Zyl’s evidence concerning how certain fees came to be
incorrectly debited. It may be that Maphaha
did not make an
affidavit in these proceedings because of an apprehension that the
first application had been overtaken by proceedings
in the second
application. The absence of any answer from Maphaha would
justify a finding that Maphaha’s decision had
been made for an
ulterior reason or because of the unauthorised or unwarranted
dictates of another person. In the context
of the other grounds
upon which the decision falls to be impugned, I shall, however,
refrain from making a determinative finding
in that regard beause of
my uncertainty whether the omission to make a rebutting affidavit
might perhaps have been due to a perception
that the current
proceedings had become moot.
[25]
Maphaha’s findings were in a sense a preliminary step.
Section 381(1) of the Companies contemplates an enquiry
by the Master
into apparent misconduct and the taking of action thereanent as might
be thought to be expedient. When the
enquiry confirms
misconduct by the liquidator, the administrative action provided for
in terms of the subsection includes the consequent
taking of action.
Maphaha did not reach the stage of taking action against Van Zyl
because of the institution of the current
application for judicial
review and also, it would appear, because the Master intervened with
a parallel process of her own.
[26]
In
Democratic Alliance and Others v Oudtshoorn Municipality and
Others; In Re: Democratic Alliance and Another v Oudtshoorn
Municipality
and Others
[2014] ZAWCHC 132
(27 August 2014),
[3]
Rogers J observed that ‘[t]he circumstances in which
review in terms of [PAJA] and in terms of the legality principle
is
available to impeach preliminary investigations and recommendations
is not altogether clear’. That is true.
However, an
important distinguishing feature between the current case and that
with which the learned judge was dealing in
Oudtshoorn
Municipality
was that in this matter the enquiry was not
directed, as it was in that case, at making a recommendation to
another decision-maker
to act on. Maphaha’s findings were
the first of a two-step process of decision-making, both of which
entailed himself
being the decision-maker. Accordingly, if his
first step decision was bad, no point would be served by not
entertaining a
review until he had made the second decision.
The reason being that if the first decision were invalid, the second
decision
could not validly follow. In addition, the second
decision that he had to make (‘sanction’) would not
afford
him the opportunity to undo the first decision (finding of
misconduct).
[27]
In the circumstances, I accept the argument by Ms
Reynolds
,
who appeared for Van Zyl, relying inter alia on the reasoning of
Fabricius AJ in
Oosthuizen's Transport (Pty) Ltd and Others v
MEC, Road Traffic Matters Mpumalanga and Others
2008 (2) SA 570
(T)
[4]
and that of Mogoeng J in
Viking Pony Africa Pumps (Pty) Ltd
t/a Tricom Africa v Hidro-Tech Systems (Pty) Ltd and Another
[2010] ZACC 21
(23 November
2010); 2011 (1) SA 327
(CC) ;
2011 (2)
BCLR 207
(CC) at paras. 36-39, that the findings made by Maphaha
constituted administrative action that was impugnable on review even
before
any sanction was imposed. The question that arises,
however, is whether it would be appropriate to make a separate order
in the current matter, in the context of the first application
arguably having been overtaken by the events that led to the second
application. More particularly so, when judgment in the second
review did not involve the remission of any question bearing
on an
investigation into Van Zyl’s conduct or the decision to remove
him from office for reconsideration by the Master.
As the Full
Court judgment noted: ‘The only effect of our judgment is to
reinstate Van Zyl to his position as liquidator
of the corporations
in liquidation affected by the Master’s impugned decision.
It is not open to the Master to revisit
her decision to remove him
from any of those appointments on any of the grounds set out in her
letter of 31 August 2017’.
[5]
The question really distils into one of mootness. Has the
determination of the second application rendered an adjudication
of
the first one of no practical relevance, other than as to costs?
[28]
Ms
Reynolds
pointed out that it was apparent from the
transcript of the enquiry proceedings that the intention had been
that Maphaha would
act in lieu of the Master and that he, and not
she, would be charged with determining the consequences for Van Zyl
should any findings
of misconduct be made. This course may have
been followed because of the allegations of bias and personal
antipathy that
Van Zyl had raised against the Master at quite an
early stage after it became apparent that his conduct was to be
placed under
scrutiny. Ms
Reynolds
submitted that
it was clear that the Master had only stepped in, purportedly in
terms of s 379(1) of the Companies Act, when
the difficulties
with Maphaha’s findings had been highlighted by the bringing of
the review application that is currently
under consideration.
[29]
As noted in the Full Bench judgment, in making her decision to remove
Van Zyl from his appointments, the Master indicated that
she had
acted on the opinion she had formed on her own reading of the full
transcript of the enquiry proceedings and, by implication,
not on the
basis of the findings made by Maphaha. She had also carried out
her own enquiries after the completion of the
first. That was
somewhat contradicted, however, by the indications referred to in the
Full Bench judgment that suggested
that the Master intended to oppose
the first review application on the grounds that it had been
premature.
[6]
Ms
Reynolds
suggested that in the circumstances of the
Master having purported to act independently of the enquiry by
Maphaha, it was technically
still open to Maphaha to impose a
sanction predicated on his findings. Although it seems
extremely unlikely that Maphaha
would presume to do so in the face of
the Full Court’s judgment, I suppose it is strictly speaking
correct that he is not
prohibited by that judgment from doing so.
[30]
The Master’s decision to remove Van Zyl from office was not
based in all respects on the misconduct identified in Maphaha’s
findings. She did not, for example, give as a reason for her
decision the finding that Van Zyl had acted dishonestly when
charging
an incorrect fee in the Asch liquidation, nor that in Aquila.
[7]
Maphaha’s finding to that effect, which was plainly unfounded
in the context of Van Zyl’s unimpeached explanation
that the
charge was as a result of an administrative error, has not been
formally impugned. The findings, while they stand
formally
unimpugned, also have the potential to impact reputationally in an
unduly adverse manner on Van Zyl. I have come
to the conclusion
in the circumstances that Van Zyl is entitled to an order reviewing
and setting aside the findings made by Maphaha.
Order
[31]
The following order will issue:
1. The findings made by the second respondent, dated 17 May
2016, in the enquiry instituted by the first respondent in terms
of
s 381(1) of the Companies Act 63 of 1973 into the conduct of the
applicant, qua liquidator, are hereby reviewed and set
aside.
2. The first respondent shall be liable for payment of the
applicant’s costs of suit.
A.G.
BINNS-WARD
Judge
of the High Court
[1]
Full Court judgment, paras. 95 – 101.
[2]
Full Court judgment, paras. 107 – 108.
[3]
In para. 120.
[4]
Compare also
Minister
of Defence and Military Veterans and Another v Mamasedi
[2017]
ZASCA 157
(24 November
2017); 2018 (2) SA 305
(SCA), at para. 14 and
the other authority cited there in note 3.
[5]
Full Court judgment, para. 126.
[6]
Full Court judgment, para. 52.
[7]
The Master’s given reasons for deciding to
remove Van Zyl from office are summarized in paragraphs 65-73 of the
Full Court
judgment.