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[2012] ZAGPJHC 16
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Freidlein Company (Pty) Ltd v Simaan and Others (2009/45807) [2012] ZAGPJHC 16 (8 February 2012)
REPORTABLE
SOUTH GAUTENG HIGH COURT,
JOHANNESBURG
CASE NO
:
2009/45807
Date:8/02/2012
In the matter between:
FREIDLEIN
COMPANY (PTY)
LTD
.......................................................
Plaintiff
and
ANDREW
WILLIAM
SIMAAN
....................................................
First
Defendant
TREVOR
ALLAN THOMPSON
.............................................
Second
Defendant
BRISS
MATABATHE
...................................................................
Third
Defendant
JUDGMENT
KATHREE-SETILOANE,
J
[1] The
plaintiff, Freidland Company (Pty) Ltd, instituted an action, on 29
October 2009, in which it sought an order that the defendants,
in
their capacities as directors of Furnex Stores (Pty) Ltd (“Furnex”),
be held personally liable for the debts of
Furnex to the plaintiff,
in terms of section 424 of the Companies Act, No. 61 of 1973 (“the
Companies Act”), on the
basis that the business of Furnex was
being carried on recklessly and/or with intent to defraud creditors
of Furnex, in particular
the plaintiff, and/or for fraudulent
purposes.
[2]
The
defendants raised a special plea challenging the
locus
standi
of the plaintiff to institute an action against them, in terms of
section 424 of the Companies Act. The special plea reads as follows:
“
(1)
On
or about 11 September 2009, an arrangement between Furnex and its
creditors, having been sanctioned by the Court on 1 September
2009,
was registered in terms of section 311(6)(a) of the Companies Act 61
of 1973 as amended.
(2)
In
terms of clause 6 of the arrangement all creditors of Furnex,
including the plaintiff, were deemed to have ceded their claims
against Furnex to the proposer or its nominee with effect from the
date of registration of the court order sanctioning the arrangement
concerned.
(
3) The
arrangement was binding on all the creditors of Furnex, including the
plaintiff.
(4)
In
the premises, with effect from 11 September 2009 the plaintiff ceased
to have locus standi in respect of any claim it had against
Furnex
and accordingly against the defendants in respect thereof.”
[3] The
parties have agreed, in terms of Rule 33(4) to a separation of the
issues and, that the defendants’ special plea
be determined
separately and prior to the remaining issues. There is also agreement
that in the event of the special plea being
upheld, it will dispose
of the action in its entirety.
[4] It is
common cause that the offer of compromise and scheme of arrangement
was sanctioned by the Court on 11 September 2009.
Clause 6 of the
scheme of arrangement reads as follows:
“
6. Proposed
Arrangement between the Company and its Creditors and Cession of
Claims
6.1 The
capital sum payable by the Proposer in terms 4.1 above of this
arrangement for the benefit of the creditors shall be deemed
to have
been paid to the creditors as the consideration
for
the cession by them to the Proposer of their claims (“ceded
claims”), and each creditor will be deemed to have ceded
its
claims against the Company to the Proposer or its nominee.
6.2 A
cession of the claims referred to in 6.1 shall be deemed to take
effect upon the registration of the order sanctioning this
arrangement in terms of Section 311(6) of the Companies Act, save in
terms of 3.3.”
[5] It is
common cause that the word “deemed” used in relation to
the cession of the creditors’ claims to the
proposer in clause
6 of the scheme of arrangement bears its general or usual meaning,
which was expressed as follows in
R
v Norfok County Council
65 LT 222
, and cited in
Ex
Parte Strydom NO: In Re Central Plumbing Works (Natal) (Pty) Ltd
1988 (1) SA 616
(D&CLD) at 620E-G:
“
Generally
speaking when you talk of a thing being deemed something you do not
mean to say that it is that which it is deemed to
be. It is rather an
admission that it is not what it is deemed to be and that,
notwithstanding it is not that particular
thing, nevertheless...it is deemed to be that thing.”
In the earlier
case of
Steel
v Shanta Construction (Pty) Ltd and Others
1973 (2) SA 537
(T) at 541, Coetzee (at 541I-J) stated that:
“
When
“deemed” is used as meaning “considered” or
“regarded” and not in one of its other meanings
(such as,
for instance, “to think”) it is a very strong word to
denote, frequently exhaustively, that something is
a fact regardless
of the objective truth of the matter. It is an indispensable word
,
in legal parlance, to convey that enquiry into this truth is
irrelevant for purposes of the particular instrument.”
[
6] Section
311 of the Companies Act provides:
“
Compromise
and arrangement between company, its members and
creditors
Where any
compromise or arrangement is proposed between a company
and
its creditors or any class of them or between a company and its
members and any class of them, the Court may, on application
of the
company or any creditor or member of the company or, in the case of
a company being wound up, of the liquidator, or if
the company is
subject to a judicial management order, of the judicial manager,
order a meeting of the creditors or class of
creditors, or of the
members of the company or class of members (as the case may be), to
be summoned in such manner as the Court
may direct.
If
the
compromise or arrangement is agreed to by ─
a
majority in number representing three-fourths in value of the
creditors; or
a
majority representing three-fourths of the votes exercisable by the
members or class of members,
(as
the case maybe) present and voting either in person or by proxy at
the meeting, such compromise or arrangement shall, if sanctioned
by
the Court, be binding on all creditors or the class of creditors, or
on the members or class of members (as the case maybe)
and also on
the company or on the liquidator if the company is being wound up or
on the judicial manager if the company is subject
to a judicial
management order.
No such compromise or arrangement shall affect the liability of
any person who is a surety for the company.
If the
compromise or arrangement is in respect of a company being wound up
and provides for the discharge of the winding-up order
or for the
dissolution of the company without winding up, the liquidator of the
company shall lodge with the Master a report
in terms of section
400(2) and a report as to whether or not any director or officer or
past director or officer of the company
is or appears to be
personally liable for damages or compensation to the company or for
any debts or liabilities of the company
under any provision of this
Act, and the Master shall report thereon to the Court.
The Court,
in determining whether the compromise or arrangement should be
sanctioned or not, shall have regard to the number of
members or
members of a class present or represented at the meeting referred to
in subsection (2) voting in favour of the compromise
or arrangement
and to the report of the Master referred to in subsection (4).
(a) An order by the Court sanctioning a compromise or arrangement
shall have no effect until a certified copy thereof has been lodged
with the Registrar under cover of the prescribed form and registered
by him.
(b)
A
copy of such order of court shall be annexed to every copy of the
memorandum of the company issued after the date of the order.
If a
company fails to comply with the provisions of subsection (6)(b),
the company and every director and officer of the company
who is a
party to the failure, shall be guilty of an offence.
In this
section
‘company’
means any company liable to be wound up under this Act and the
expression ‘arrangement’ includes
a reorganization of
the share capital of the company by the consolidation of shares of
different classes or by the division of
shares into shares of
different classes or by both these methods.”
[7]
The
question for determination is therefore whether the right conferred
upon creditors by section 424(1) of the Companies Act is
extinguished
upon the sanctioning and implementation of a compromise in terms of
section 311 of the Companies Act. In other words,
do creditors, upon
a sanctioning and implementation of a compromise, retain any rights
they might have against representatives
of the company, having ceded
or surrendered their claims against the company.
[
8] Section
424(1) of the Companies Act provides:
“
When
it appears, whether it be in a winding-up, judicial management or
otherwise, that any business of the company was or is being
carried
on recklessly or with intent to defraud creditors of the company or
creditors of any other person or for any fraudulent
purpose, the
Court may, on application of the member or contributory of the
company, declare that any person who was knowingly
a party to the
carrying on of the business in the manner aforesaid, shall be
personally responsible, without limitation of liability,
for all or
any of the debts or other liabilities of the company as the Court may
direct.”
In
Ex
Parte De Villiers and Another NNO: In re Carbon Developments (Pty)
Ltd (In Liquidation)
1992(2)
SA 95 (WLD), Stegmann J had to decide whether creditors, in an
application in terms of s 311 of the Companies Act for an
order that
meetings be held of classes of creditors of a company in liquidation
to consider a proposed compromise or arrangement,
could both
surrender their claims against the company and retain any rights that
they might have against its representatives under
s 424(1) of the
Companies Act. He outlined the purpose of a s 424(1) application (at
107F-107G) as follows:
“
What
is aimed at by an application in terms of s 424(1) is that a person
contemplated by the subsection (often a director or officer
of an
insolvent company, and whom I shall call a ‘wrongdoing company
representative’) should be declared personally
responsible for
‘the debts or other liabilities of the company’, or at
least for such of them as the Court may conclude
that he should be
held personally responsible for.”
[9] Stegmann J
held that the existence of ‘debts and liabilities’ are a
prerequisite for the operation and functioning
of s 424(1) of the
Companies Act:
“
For
s 424(1) to be operable at all, the company must have ‘debts or
other liabilities’. If the company has no’
debts and
liabilities ‘an essential
requirement
is missing and s424(1) cannot provide a remedy. In a case in which
the creditors have all agreed in terms of s 311 to
a compromise which
specifically provides for the extinction of all the company’s
debts and liabilities, it seems to me to
be obvious that s 424(1)
cannot possibly function after the extinction of such debts and
liabilities by the agreement of the creditors
and sanction of the
Court.
...
To my mind
the words of s 424(1) make it quite clear that a debt or other
liability of the company is the very foundation upon which
any
declaration of personal liability on the part of a wrongdoing company
representative must stand as an ancillary liability,
and that when
that foundation ceases to exist (eg by the discharge or extinction of
the company’s debts) the wrongdoing company
representatives
which otherwise might have been declared personally responsible in
terms of s 424(1) cease to be amenable to any
such declaration. The
liability of the wrongdoing company representatives to be declared
personally liable for a company’s
debts or other liabilities in
terms of s 424(1) is a liability ancillary to the company’s own
debts or other liabilities
and it cannot exist without them.”
(at
107G-108B)
[
10] Stegmann
J in
Ex Parte De Villiers
accordingly concluded (at 108J to 109A-B) that when a creditor of
an insolvent company in liquidation is faced with a proposal
under s
311 of the Companies Act, which involves an offer of compromise
inviting him to agree to cede his claims against the company
in
liquidation, in return for the right to a payment in terms of the
compromise, such creditor should recognise the implication
that, if
and when he ceases to be a creditor of the company by virtue of a
Court order sanctioning the compromise, he will also
cease to qualify
to enjoy the benefits of such rights as s 424(1) may have afforded
him, had he approached the Court at a time
when the company owed him
a debt or other liability, for a declaration that a wrongdoing
representative of the company was personally
responsible for the full
amount of such debt or other liability of the company.
[11] Although
the judgment of Stegmann J in
Ex
Parte De Villiers
was reversed on appeal in
Ex
Parte De Villiers and Another NNO: In Re
Carbon
Developments (Pty) Ltd (In Liquidation)
1993 (1) SA 493
(A), the Appellate Division left open the question of
whether a creditor who has ceded its claim against the company
retained its
locus
standi
to approach a court for declaratory relief against a representative
of a company under s 424(1) of the Companies Act. Goldstone
JA
adopted the following view:
“
In
the view I take in this matter, it is not necessary to decide this
interesting and difficult question. I shall assume that the
effect of
the offer of compromise, on sanction by the Court, would be to
preclude relief under s 424(1) at the instance of the
creditor.”
[12] However,
Mr Hollander, for the plaintiff, contends that the decision
of
Stegmann J in
Ex
Parte De Villiers
is wrong as it fails to properly take into account, the true
intention of the Legislature in relation to the meaning of the words
“creditor
of the company”
and,
the primary objects of s 424(1 of the Companies Act. He finds
support for this contention in
Pressma
Services (Pty)(Ltd) v Schuttler and Another
1990
(2) SA 411
(CPD), in which Van Schalkwyk AJ (at 417B-H), construed
the meaning of
the words
“
creditors
of the company
”
in s 424(1) of the Companies Act, in light of what he viewed the
primary objects of the Legislature to be. He stated as
follows:
“
The
words could mean either a person who is a creditor of a company at
the time when he approaches the Court in terms of s424(1),
in the
sense that there is an existing indebtedness, or they could mean, in
addition, a person
in respect of whom there was an indebtedness which ceased to exist
upon the sanctioning and implementation of the compromise.
The first,
more restricted meaning, is the more obvious and ordinary one which,
in the absence of an indication to the contrary,
would be the meaning
to be ascribed to the words (
Steyn
Die Uitleg van Wette
5
th
ed at 6-7 and the authorities there cited). The second, extended
meaning, would be
permissible
only upon the basis that it is consistent with the true intention of
the Legislature while the first, more restricted meaning,
is not.
(Steyn (op cit
at 2-4) and
the authorities there cited). The true intention of the Legislature
in this regard must, in my view, be determined with
reference to the
primary objects of s424(1). These, as I have mentioned, are twofold.
The first is to render personally liable
all persons who knowingly
participate in the fraudulent or reckless conduct of the business of
a company. The second is to provide
a meaningful remedy against the
abuses at which the subsection is directed. The first of these
objects would
be
attained if, upon the sanctioning and implementation of a compromise,
the personal liability of the persons concerned was maintained.
This
would be the case even if the right conferred on a creditor by
s424(1) were to pass to the offeror upon sanctioning and
implementation
of the compromise. The second object, however, would
in my view not be attained if the remedy provided by the subsection
were
to be lost to creditors for, in the final analysis , it is to
them that the debts of the company in respect of which personal
liability
is created by the subsection are owed.”
[13] Van
Schalkwyk AJ’s suggestion (above at 417 E-H) that “creditor”
may there have been confined to existing
creditors, or may have been
extended to include former creditors who have ceased to be creditors
by virtue of a compromise in terms
of s311 of the Companies Act, was
sharply criticized by Stegmann J in
Ex
Parte De Villiers
(at 106B-D) for its ambiguity as follows:
“
This
is, I must respectfully observe, a curious choice to have postulated,
for if the creditors contemplated by s 424(1) are to
be understood as
including
not
only existing creditors, but also former creditors who had disposed
of their claims to existing creditors in terms of a compromise,
the
Legislature would have created an unlikely situation in which the
company’s debts (or some of them) would have to be
paid twice
over: once to the existing creditors and once to the former
creditors. Such a result would be an absurdity which the
Legislature
cannot have contemplated, and I have no doubt that the implication
was not brought to the attention of Van Schalkwyk
AJ, and certainly
not intended by him.”
[14
] Stegmann
J went on to criticise Van Schalkwyk AJ’s reasoning as follows
(at 106H-107E):
“
The
entire argument in the judgment is, I respectfully suggest, conducted
on too narrow a footing. It seems to me that it overlooks
a
fundamental and decisive factor. There is no reason to doubt that, in
making provision in s 311 for a compromise between a company
and its
creditors, the Legislature intended to leave the creditors free to
agree to deal with their rights as they
saw
fit, ie to agree to compromise their rights, to alienate them, to
extinguish them, as they chose. There is nothing in s424(1),
or its
context, which abridges a creditor’s freedom to agree in terms
of s 311 to compromise any rights he may derive from
s424(1), or
alienate such rights, or to extinguish them.
The
conclusion reached by Van Schalkwyk AJ in
Pressma Services
appears to accept that the Legislature, when providing the rights
created by s 424(1) in the circumstances defined therein, intended
to
create a species of incorporeal property which was to be different
from virtually all other incorporeal property in that the
holder
thereof was to have no power to agree to cede it, or to compromise
it, or to extinguish it. This new species of incorporeal
property is
evidently thought to be both inalienable and indestructible. The
consequence thereof is said to be that creditors are
placed in the
remarkably advantageous position of being free to compromise,
alienate or extinguish their claims against a company
in terms of s
311, secure in the knowledge that nothing they may agree to in terms
of such compromise can affect their inalienable
and indestructible
rights guaranteed by the Legislature in all circumstances in terms of
s 424(1). It is suggested that to that
extent creditors are free to
have their cake and eat it.
No doubt
the Legislature has power to devise and enact such an anomalous
scheme of things. However, I am respectfully unable to
accept that
the Legislature has in fact done so in terms of s 424(1). Certainly
it has not done so in express terms, and I remain
unpersuaded by the
argument that it has done so by implication. To the extent that the
decision in
Pressma Services
suggests otherwise, I express my respectful disagreement with it.”
[15] Having
considered the judgement of Stegmann J in
Ex Parte De Villiers
,I
am unable to find that either his conclusion or reasoning is wrong. I
therefore endorse his judgment in all respects in relation
to the
question of whether creditors can both surrender their claims against
the company, in an offer of compromise and retain
any rights they may
have against its representatives under s424(1) of the Companies Act.
I am thus of the view that the judgment
of Van Schalkwyk AJ is
clearly wrong as it fails to have regard to the following essential
factors:
The freedom
conferred upon creditors
in an offer of compromise between a company and the creditors, in
terms of s 311 of the Companies Act, to agree to deal with
their
rights as they see fit ─ by agreeing to either compromise,
alienate or extinguish their rights;
(b
)
for s 424(1) of the Companies Act to be of application, the
company must have
“debts
or liabilities”.
[16
] In
a case, such as this, where the creditors have all agreed in terms of
s 311 to a compromise which specifically provides for
the extinction
of all the companies debts and liabilities, s 424(1) cannot possibly
function after the extinction of such debts
and liabilities by the
agreement of the creditors and the sanction of the Court. Despite the
decisiveness of this factor to the
question for determination in
Pressma
Services
,
it was not considered by Van Scalkwyk AJ.
[1
7] The
fact that the Legislature has preserved the rights of a cedent to
proceed
against the surety in s 311(3) of the Companies Act, the purpose of
which is to ensure that a creditor’s rights as
against third
parties (sureties) should not be affected by the sanctioning and
implementation of
an offer of
compromise
or scheme of arrangement, does not mean that the Legislature
intended, either expressly or by implication, that the rights
conferred
upon creditors by s 424(1) are not extinguished upon the
sanctioning and implementation of an offer of compromise or scheme of
arrangement. I am therefore unable to agree with the view of Van
Schalkwyk AJ in
Pressma
Services
(at 418 A-D) that s 311(3) of the Companies Act supports the view
that creditors retain the rights conferred upon them by s 424(1)
upon
the sanctioning and implementation of a compromise by virtue of the
fact that the Legislature has seen fit to preserve the
rights of
creditors against sureties in such circumstances.
[18] Claassen
J in
Kalinko v Nisbet and Others
2002 (5) SA 766
(W) at 776B-F, (as did Horn J, in
Lordan
NO v Dusky Dawn Investments (Pty) Ltd (In Liquidation) (Pearmain and
Another Intervening)
1998
(4) SA 519
(SE) at 529E-H)) expressed his preference for the
conclusion reached in
Pressma Services
that an offer of compromise in terms of s 311 of the Companies Act
does not affect creditors rights in terms of s 424 thereof.
He, in
particular, subscribed to the following comment of Van Schalkwyk AJ
in
Pressma
Services
(at 416J-417A):
“
It
is, in my view, unthinkable that the Legislature could have intended
that the aforestated purpose could be frustrated and the
remedy
provided for in the subsection lost merely because of the
sanctioning and implementation of a compromise in terms of s
311,
especially in view of the fact that creditors who have voted against
the sanctioning of the compromise may, in certain instances,
be bound
thereby.”
[19
] I
am, with all due respect, not bound by the views expressed by
Claassen J in
Kalinko
v Nisbeth
as he was not called upon to deal with, and nor did he deal with,
the question of whether or not creditors’ rights in terms
of
s424(1) of the Companies Act are extinguished upon the sanctioning
and implementation of a compromise in terms of s 311 of the
Companies
Act where, as in this case, the creditors have ceded or surrendered
their claims against the company.
[
20]
The plaintiff, however, contends that upon the sanctioning and
implementation of a compromise in terms of s 311 of the Companies
Act, a creditor’s rights under s 424(1) of the Companies Act
can only be extinguished if it in actual fact cedes its claims
against the company to the proposer. It is the plaintiff’s
contention, in this regard, that a creditor’s s 424 rights
can
never be extinguished by operation of a deeming provision in terms of
which a creditor is deemed to have ceded its claims against
the
company to the proposer.
[21] I do not
agree with this contention. It is clear, in my view, that in the
scheme of arrangement, in this case, the word “deemed”
when used in relation to the cession of creditors claims bears it
usual meaning ─ i.e. “deemed” is used as meaning
“considered” or “regarded”. This much is
common cause. Therefore, the proposal made by the proposer
(Trans
Africa Investment Holdings (Pty) Ltd), and accepted by the creditors
is that the capital sum payable by the proposer in
terms of clause
4.1 of the offer of compromise and scheme of arrangement for the
benefit of the creditors shall be regarded as
having been paid to
the creditors, as the consideration for the cession by them to the
proposer of their claims (“ceded
claims”), and each
creditor will be regarded as having ceded its claims against the
company (Furnex), to the proposer or
its nominee. Simply put, the
proposal made by the proposer is,
inter
alia
,
that all the claims of creditors of Furnex including the plaintiff,
should be regarded as if they had been ceded to the proposer.
[19] In
Ex
Parte Strydom,
(above), the Court had to give consideration to the question of
whether three standard schemes of arrangement amounted to
“arrangements”
within the ambit of s 311 of the Companies
Act. In each of these schemes of arrangement the offeror proposed to
make available
a sum of money for distribution among all the
creditors of the companies in (provisional) liquidation, in such a
way that upon
sanctioning of the schemes of arrangement under s 311
of the Companies Act, and upon receipt of the dividend due to them,
each
creditor would be deemed to have ceded to the offeror its claim
against the respective companies. In considering the concept of
a
“deemed cession” as contemplated in the three standard
schemes of arrangement under consideration, Friedman J and
Wilson J
stated as follows (at 621A-622D):
“
It
is clear in our view that in the scheme of arrangement in this case
and in
the
Robin
case the word “deemed”, when used in relation to the
cession of creditors claims to the offeror, bears its general
meaning. The proposal made by the offeror is,
inter
alia
,
that all the claims of creditors of the company should be regarded as
if they had been ceded to him, irrespective of whether or
not
creditors cede those claims to him, including the claims of those
creditors who may not wish to cede their claims to him, and
including
those creditors of whose identity he is unaware or who may be
unaware of the proposal which he is making. The scheme
of arrangement
which is
proposed, therefore, is not one whereby the offeror in fact
acquires the claims of creditors; it is one whereby it is proposed
that
he should be regarded as having acquired them regardless of the
objective truth of the matter.”
…
In our view, therefore, there is no difficulty in conceptualising
within the framework of a scheme of arrangement a ‘deemed
cession’, that a cession shall be regarded as having taken
place even although in truth and in fact it has not. Such a concept,
to have any effect, however, requires the active participation of the
debtor, ie the company. In the first place, what is required
to bring
about this situation is agreement on the part of the company to
regard a third party as its creditor in place of its actual
creditor,
as if the actual creditor had ceded its claims to the third party.
This concept can only be given any legal effect by
the actions of the
company in recognising a state of affairs as existing which does not
in fact exist. The contract is not one
which, as Coetzee DJP says,
exists purely between cedent and cessionary. Where there has in fact
been a cession, the company is
obliged to recognise the cessionary as
its new creditor; where the cession is ‘deemed’, there is
obviously no obligation on the company to recognise a state of
affairs which does not, in fact, exist. And it would seem to follow
that the Court could not, in that event, make an order affecting the
company without the company being a party thereto. The arrangement,
therefore, whereby the company will recognise the offeror as its new
creditor in place of its old seems to us to be not only notionally
and linguistically, but also in its basic content, an arrangement
between it and its creditors. ...
Finally, it
should perhaps be mentioned in passing that a cession can be deemed
to have occurred in the manner we have described
even although
the
instrument of debt has not been transferred to the offeror.”
[20] Accordingly,
I am of the view that the “deemed cession” of the
creditors claims against Furnex to the proposer,
as provided for in
the scheme of arrangement, has been given legal effect to by Furnex
having agreed, by way of an arrangement
between it and its
creditors (which arrangement has been sanctioned by the Court) that
it regards the proposer as its creditor
in place of its actual
creditors ─ as if the actual creditors ceded their claims to
the proposer. The “deemed cession”
thus has the legal
effect of a cession.
[21] In the
circumstances, I am of the view that upon the sanctioning and
implementation of an offer of compromise and scheme of
arrangement,
in terms of which creditors are deemed to have ceded their claims
against the company to the proposer, any rights
which they might have
against representatives of the company, in terms of s 424(1)
of the
Companies Act, are extinguished. Whether creditors’ claims
against
the
company are deemed to be ceded, or actually ceded is accordingly of
little moment.
[22] In the
premises, I am of the view that the effect of an offer of compromise
and scheme of arrangement, on sanction by the
Court, would be to
preclude relief under s 424(1) of the Companies Act at the instance
of a creditor. Accordingly, with effect
from 11 September 2009 the
plaintiff ceased to have
locus standi
in respect of any claim it had against Furnex, or the defendants, by
virtue of the scheme of arrangement between Furnex and its
creditors,
which was sanctioned by the Court on 1 September 2009, and registered
in terms of s 311(6)(a) of the Companies Act.
The
defendants’ special plea must accordingly succeed.
[
23] In
the result, I make the following order:
(a) The
special plea is upheld with costs
.
(b) The
plaintiff’s claim is dismissed with costs.
F.
KATHREE-SETILOANE
JUDGE
OF THE SOUTH GAUTENG
HIGH COURT, JOHANNESBURG
Counsel for
the Plaintiff:
Mr
L. Hollander
Attorneys for
the Plaintiff:
Shaheed
Dollie Inc
Counsel for
the Defendants: Mr JJ Bitter
Attorneys for
the Defendants: Rothbart Inc
Date of
Hearing: 26 August 2011
Date of
Judgement: 8 February 2012
.