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[2013] ZAGPJHC 231
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Grant Thornton Capital Umbrella Fund v Da Silva (A5066/2012) [2013] ZAGPJHC 231 (20 September 2013)
NOT REPORTABLE
IN THE SOUTH GAUTENG HIGH
COURT OF SOUTH AFRICA
(JOHANNESBURG)
Case No: A5066/2012
DATE:20/09/2013
In
the matter between:
GRANT
THORNTON CAPITAL UMBRELLA FUND
…..............................
Appellant/Plaintiff
And
DA
SILVA, EGIDIO
…..........................................................................................
Respondent/Defendant
JUDGMENT
C.
J. CLAASSEN J
:
INTRODUCTION
This
is an appeal with the necessary leave of the court below, being
Kathree-Setiloane J. This judgment will follow the precedent
set by
both counsel in their heads of argument to refer to the appellant
and respondent as “the Plaintiff” and “the
Defendant” respectively.
Prior
to dealing with the appeal, it is necessary to traverse an
application by the plaintiff to condone the failure to serve
a
complete appeal record timeously on the defendant. The plaintiff in
its notice of motion requested that the costs of such application
be
costs in the appeal alternatively in the event of the defendant
opposing the application, that the defendant be ordered to
pay the
costs of the condonation application.
In
response to the aforesaid application for condonation, the defendant
filed a counter-application seeking an order to declare
the
plaintiff’s appeal to have lapsed and costs on the attorney
and own client scale. I propose to deal with both the application
and the counter-application simultaneously.
CONDONATION
AND COUNTER-APPLICATIONS
It
is common cause that two copies of the transcript of proceedings
were served by the plaintiff on 13 December 2012. The defendant’s
complaint, amounts to the following:
In
terms of Rule 49(7)(a) of the Uniform Rules of Court, the
plaintiff at the same time as filing an application for a date
for the hearing of an appeal, must file three copies of the
record of appeal with the registrar and furnish two copies
thereof to the defendant.
The
plaintiff, when it served its application for a date for the
hearing of an appeal on 13 December 2013, did not furnish
two
copies of the record of appeal to the defendant as envisaged in
the aforesaid rule.
Accordingly
the defendant counter-applied in terms of Rule 49(7)(d) of the
Uniform Rules of Court for a declarator that
the appeal has
lapsed in as much as no copies of the record of appeal were filed
within forty days after the acceptance
by the registrar of the
application for a date for the hearing of the appeal.
The
appeal record which was eventually filed by the plaintiff did not
comply with the Rules of Court and the practice manual,
more
particularly in that:
The
plaintiff did not securely bind the appeal record in volumes of
no more than 120 pages.
The
plaintiff included in the appeal record certain documents which
were not essential for the determination of the appeal
and which
the defendant did not consent to.
In
the plaintiff’s application for condonation it set out in
great detail the difficulties encountered with the preparation
of
the appeal record and the service thereof on the defendant. These
allegations are supported by all the necessary correspondence
and I
do not find it necessary to traverse the same. Suffice to mention
that the defendant’s complaint in reality raises
a deficiency
in the prosecution of the appeal and not a material delay or failure
to take the necessary steps to prosecute the
appeal.
1
It
is trite that a court has a discretion when considering applications
for condonation that is to be exercised judiciously upon
a
consideration of all the facts. In essence it is a question of
fairness to both sides.
2
During argument counsel for the defendant was not able to point to
any
material
prejudice suffered by the defendant in prosecuting his defence to
this appeal. When asked whether or not he persisted in the
counter-application, counsel simply said: “It is still there.”
With due respect, that is not an indication of a serious
attempt to
convince the court that fairness requires the appeal to be declared
lapsed. I am satisfied that the plaintiff made
out a proper case for
the condonation of the previously mentioned shortcoming in the
appeal record and that the defendant made
out no case at all for the
appeal to be declared lapsed.
I
propose that the following order should be made:
Plaintiff’s
condonation application is granted with costs.
Defendant’s
counter-application is dismissed with costs.
In
both instances the costs will include the costs occasioned by the
Plaintiff’s employment of two counsel, where applicable.
THE
MERITS OF THE APPEAL
The
plaintiff claimed payment of R360 417.97 and
mora
interest. The cause of action was pleaded as a
condictio
indebiti
. The court
a quo
non-suited the plaintiff because, so it held, the plaintiff had not
proved that the defendant was liable, more particularly in
the
following terms:
“
[27] No
case has been made out by the plaintiff, which would enable me in
terms of s3(1)(c)(i) to (vii) to admit the hearsay evidence
of Mr
Otto and Ms Beligan as being in the interest of justice. The hearsay
evidence of Ms Beligan and Mr Otto is accordingly inadmissible.
I am,
consequently, of the view that the plaintiff has failed to prove on a
balance of probabilities that the defendant is liable
for payment to
it of the amount of R360 417,97, which it paid to the defendant
in the reasonable and bona fide, but mistaken,
belief that it was
owing.”
In
order to understand the disputes in this matter it is necessary to
refer to the pleadings. The plaintiff alleged in its particulars
of
claim that it is a provident fund and registered in terms of the
Pensions Fund Act 24 of 1956
. The defendant was a member as defined
in
section 1
of the Act of the plaintiff by virtue of his employment
by Aucor, who was also a participating employer in the plaintiff, as
defined by
section 1
of the Act. The cause of action is thereafter
pleaded in the following terms:
“
5. On or about the 1
st
October 2004 the benefits attributable to the Defendant were
transferred from the Plaintiff to the Corporate Section Retirement
Fund No 2 administered by Liberty Life.
6. On or about the 31st October
2007, when the Defendant left the employ of Aucor, the Defendant
submitted a withdrawal notification
to Liberty Life for the release
of all the benefits due to the Defendant. A copy of the withdrawal
notification is annexed hereto
marked ‘A’.
7. During or about the 31st
October 2007 payment of R684 550-27 was made to the Defendant by
Liberty Life of the total benefit
due to him/her at that time (‘the
first payment’).
8. During or about the 27 March
2008 and notwithstanding having received payment as aforesaid, the
Defendant also submitted the
aforesaid withdrawal notification to the
Plaintiff.
9. On or about the 14 May 2008
the Plaintiff made a payment to the Defendant of the sum of
R360 417-97 based on receipt of
the aforesaid withdrawal
notification.
10. The aforesaid second payment
to the Defendant was made in the bona fide and reasonable, but
mistaken belief that same was owing
to the Defendant by the
Plaintiff.
11. The amount which made up the
payment by the Plaintiff to the Defendant was not owing to the
Defendant, but the Defendant has
nevertheless appropriated the
monies.
12. In the circumstances,
Plaintiff is entitled to reclaim the sum of R360 417-97 from the
Defendant.”
In
response, the defendant raised a special plea which has become
irrelevant. He firther pleaded over on the merits as follows:
“
5 AD
PARAGRAPHS 4, 5, 6 AND 7
5.1 The Defendant, by virtue of
his employment with a number of companies in the Aucor Group of
Companies (Aucor) and his being
a director of a number of such
companies, was a member of a Provident Fund.
5.2 During or about
December
2007
, the Defendant
resigned as a Director of a number of Aucor Companies and sold his
shareholding, which was 25% in the Holding Company,
Aucor (Pty) Ltd.
5.3 At the time that he exited
Aucor, he was entitled to receive his Provident Fund Benefits, with
the balance, if any, to be transferred
to a new Provident Fund.
5.4 Forms were provided to him
by Aucor and he duly signed same. He did not enquire as to the
correctness thereof, but accepted
the veracity of the content
thereof.
5.5 The Defendant received
a payment of
R684 550.27
.
5.6 Save as aforesaid, the
allegations herein contained are denied as if specifically
traversed.”
In
paragraph 6 of the plea ad paragraphs 8, 9, 10, 11 and 12 of the
plaintiff’s particulars of claim the Defendant repeated
the
same allegations except for stating in paragraph 6.5 that he had
received the second payment of R360 417.97.
On
the pleadings it is common cause that the defendant received two
pay-outs of pension benefits on the same withdrawal notice.
The
plaintiff alleged that the first payment was made to the defendant
by Liberty Life after a submission of the withdrawal notification
being annexure “A” to the particulars of claim. It
further alleges that on 14 May 2008 the second payment was made
by
the plaintiff to the defendant as a result of the withdrawal
notification being submitted by the defendant direct to the
plaintiff. In essence the plaintiff alleges that the first payment
was made to the defendant by Liberty Life in respect of his
pension
benefits and the second payment made by the plaintiff to the
defendant in respect of his pension benefits. It is therefore
not in
dispute that the defendant received two amounts. The question is
therefore whether or not the defendant was entitled to
receive the
second amount or not. It is common cause that the second amount had
not yet been repaid to the plaintiff by the defendant.
THE
LAW
It
is common cause that the plaintiff’s claim is phrased on the
principles of the
condictio
indebiti
. This is an
enrichment claim entitling the payer to reclaim money paid in a
bona
fide
and mistaken
belief thatit was due and owing. In the present case the defendant
closed its case without tendering any evidence
in rebuttal of the
plaintiff’s evidence. In this regard it has been held in
Kudu
Granite Operations (Pty) Ltd v Caterna Ltd
2003 (5) SA 193
(SCA) at paragraph [21] on p. 203 as follows:
“
[21] A
presumption of enrichment arises when money is paid or goods are
delivered. A defendant then bears the onus to prove that
he has not
been enriched…”
At
the very outset it must, therefore, be mentioned that the defendant
in failing to call any rebutting evidence, did not discharge
any
onus which may have rested upon him, more particularly to prove that
he was not enriched by the second payment. Since it
is common cause
that he received the second payment, the presumption of enrichment
arose which he failed to counter. In simple
terms, that should be
the end of this matter. However, there are further legal
implications which bear mentioning in this matter.
It
is trite law that the
condictio
indebiti
has found
wide and varied application in our law. In this regard it was said
by Harms JA in
Bowman,
De Wet and Du Plessis NNO and Others v Fidelity Bank Ltd
1997 (2) SA 35
(AD) in the headnote at p. 36 as follows:
“
The
principles underlying the
condictio
inbebiti
are not
immutable. In principle, a party is entitled to rely upon an
analogous application of the
condictio
indebiti
. The rules
of the
condictio
are not identical for all situations: there is scope for deviation
where, for instance, deceased or insolvent estates and the like
are
involved.”
The
aforesaid statement of law finds application in the present matter
where the plaintiff made payment to the defendant in a
representative capacity. When the defendant resigned from Aucor the
latter gave notice in 2004 that it intended to terminate
its
association with and its employees’ membership of the
plaintiff. Transfer was then affected to Liberty Life, where
the
defendant’s funds grew until 2007. This transfer took place in
terms of
section 14(1)
3
STYLE="font-size: 13pt">
3
of the
Pensions Fund Act 24 of 1956
.
Section 14
provides not only
formalities, but also the substantive requirements of a valid
transfer. When the Registrar of Pension Funds
is satisfied that all
the requirements of
section 14(1)
had been met, he/she issues a
certificate in terms of
section 14(1)(e).
Thereafter, and within
sixty days of the date of the certificate, the funds are to be
transferred to the “receiving fund”.
Any incorrect or
wrongful transfer of funds by the plaintiff would obviously affect
its current members detrimentally as the
plaintiff also acts as
their representative to protect their interest in the making of any
payments in terms of
section 14
of the Act.
It
is also trite law that any payment made by the plaintiff to someone
who is
not
entitled
to such payment, will in effect be
ultra
vires
the provident
fund’s rules and regulations. Reclaiming such payments by the
plaintiff in terms of a
condictio
indebiti
or
condictio sine causa
constitutes a prime example of a payment
indebite
as by its very nature it was a payment of something not owing to the
payee. This much was held by Harms JA in the
Bowman
case at p. 44 with reliance upon Wessels
The
Law of Contract
at
paragraph 999 where the learned author stated:
“’
It
seems, however, more reasonable to hold that a person who, like an
executor, is acting for the benefit of others, and who in
that
capacity overpays an heir or legatee under a bona fide mistake as to
their legal rights, should not suffer for his mistake.’”
Where
a debt not owing is paid by somebody who acts in a representative
capacity it is also not necessary for the claimant to
prove that
such payment was not affected in a grossly negligent manner. The
principle of “inexcusability” for an
overpayment is
therefore not applicable where such overpayment is made in error by
a person acting in a representative capacity
in charge of the rights
of others. In this regard Harms JA in
Bowman
at p. 45 held as follows:
“
Professor
D P Visser, an ardent abolitionist of the requirement of
excusability, in his comment on
Willis
Faber
((1992)
109
SALJ
179
at 183) refers to a case recorded by
Pauw
Obs Tum Novae
613.
The facts are fairly reflected in the article and do not require
repetition. The salient features for present purposes are
that
although executors in an estate, over many years, had made
inexcusable payments
indebite
,
the gross negligence of the executors was not raised as a
consideration by any of the Judges in disposing of the claim by the
executors. This may be an indication that the excusability of the
error was not a common-law requirement of the extended
condictio
indebiti
. The same
may be said of
Watson’s
Executor v Watson’s Heirs
(1891) 8 SC 283.
At the time of payment to the heirs, what they
received was due and owing. Because of an external factor, the estate
became liable
to pay a contribution in respect of shares held by the
estate. The executors were held to be able to recover from the heirs.
The
negligence of the executors arose in another context, but not in
the present. De Villiers CJ found (at 286) that, in an action by
executors
qua
executors against heirs for recovery of their inheritance, the only
question was whether the amount claimed was then due. Error
in
payment of the inheritance was not required for a successful claim
and the absence of any reference to excusability had to follow
as a
matter of course.”
It
was also confirmed in
Wilkens
en ‘n Ander v Bester
[1997] ZASCA 9
;
1997 (3) SA 347
(AD) at 357D – F as follows:
“
Hierdie
argument hou egter nie rekening met die feit dat ten tye van die
betalings die respondent nie geregtig was om enige bedrag
as pensioen
uit die fonds te ontvang nie, en dat as keersy nóg die
bestuurskomitee nóg Eerste Bowring bevoeg was
om hom so ‘n
bedrag te laat toekom. Kortom, die betaling was
ultra
vires
die bevoegdhede van die bestuurskomitee. Dit synde so, was die
betalings indebite, en het daar
onmiddellik
terugvorderingsregte vir die bestuurskomitee teen die respondent
ontstaan
.”
(Emphasis added)
APPLYING THE LAW TO THE
FACTS
Mr
Otto testified that the error came about because when the
section 14
transfer was affected, the system was not updated to show that the
defendant did not have a claim. His evidence in this regard
is as
follows:
“
When
the
section 14
transfer was made the next step on the administration
side that should have happened was that the administration system
should
have been updated to show clearly that the
section 14
payment
had been made and that the member had no further value in the fund.
That final update did not happen. So the administration
record kept
on showing that this benefit was due to the member and [inaudible].
So it was really an error of not updating the system
at the time. So
when he came forward later and claimed the benefit, the people
responsible for paying benefits looked on the system
and found that
it reflected the value due to him and they then proceeded with the
process…
Now
the plaintiff fund then paid the amount of R360 417.97 on this
occasion that what you said it was not supposed to have
been paid.
Now whose money is it that, in other words if the fund has paid an
amount that it was not supposed to pay somebody has
got to lose in
that equation, who are the losers in that occasion? --- In reality
it is the other members of the fund. When anything
is paid out in
error it reduces the value of the assets [inaudible] which are shared
amongst the members in [inaudible].
So
the fund will have less money and that loss is then divided between
the other members that are party to the fund? --- That is
correct.”
It
cannot seriously be disputed that it was indeed the plaintiff who in
fact made the second payment in the light of the fact
that the
defendant admitted receiving it. In paragraph 5.4 of defendant’s
plea it is expressly pleaded that he did not
check the correctness
of the withdrawal notifications signed by him. There is thus no
positive statement by the defendant that
the two payments were
correctly made. Furthermore the plaintiff’s bank statement
shows that the defendant received the
second payment. In any event
it has never been suggested by anyone that any other person made
such payment.
THE JUDGMENT OF THE COURT
A QUO
It
would appear as if the court
a
quo
did not have
regard to the real issue namely: Was the defendant entitled to
retain the second payment? The court
a
quo
got side-tracked
by documents which were essentially neutral. Mr Otto explained that
he had discovered the error because there
was incorrect information
on the system. He gave a reason therefor: It had not been updated to
reflect the effect of the first
section 14
transfer. This evidence
was not hearsay. Mr Otto went to the system and ascertained
first-hand that the historical fact that
Aucor and his employees had
moved to Liberty Life had not been entered on the system. This is a
discovery which he made from
his own investigations. The Financial
Services Board letter dated 2 August 2005 to Liberty Life
4
states the following:
“
TRANSFER
OF BUSINESS FROM THE GRANT THORNTON CAPITAL UMBRELLA PROVIDENT FUND
(PARTICIPATING EMPLOYER: AUCOR (Pty) LTD) TO THE CORPORATE
SELECTION
RETIREMENT FUND NO 2 (PARTICIPATING EMPLOYER: AUCOR SANDTON (Pty)
LTD)
Case
number: 106247
I
refer to your letter dated 31 January 2005 and confirm that the
requirements of
Section 14(1)
of the
Pensions Fund Act, Act
24 of
1956 (‘the Act’), have been met.
The
certificate issued in terms of
Section 14(1)(e)
of the Act is
attached.
Yours
sincerely
For
REGISTRAR OF PENSION FUNDS
”
The
certificate
5
reads as follows:
“
TO
WHOM IT MAY CONCERN
It
is hereby certified in terms of
section 14(1)(e)
of the
Pension Funds
Act, No 24 of 1956
, that the requirements referred to in paragraph
(a) to (d) of the above section with regard to the transfer of
business with effect
from
01
October 2004
of
121
members from the
GRANT
THORNTON CAPITAL UMBRELLA PROVIDENT FUND (PARTICIPATING EMPLOYER:
AUCOR SANDTON (Pty) LTD)
to the
CORPORATE
SELECTION RETIREMENT FUND NO 2 (PARTICIPATING EMPLOYER: AUCOR SANDTON
(Pty) LTD)
have been
satisfied.
For
REGISTRAR OF PENSIONS FUNDS
”
The
court
a quo
was faced with one simple question: Was the system updated with the
section 14
transfer or not? The evidence of Mr Otto was that no such
update took place. There is nothing to gainsay that evidence as the
defendant did not provide any proof to the contrary.
Mr
Otto established the error and testified thereto. The existence of
the error is a fact and is independent of what others may
say as to
how it came about. It does not matter that other witnesses were not
called. It is clear that the error arose from the
defective system
because it still reflected an amount due to the defendant as a
result of which the erroneous pay-out was made.
As indicated above a
presumption arose that the defendant was enriched by this erroneous
pay-out. The defendant should have provided
evidence to rebut this
presumption, but failed to do so.
In
my view the court
a
quo
should therefore
have found in the plaintiff’s favour. However, if I am wrong
in this conclusion, there is yet another
reason why the plaintiff
should have been successful in the court
a
quo
.
ULTRA VIRES
PAYMENT
In
section 13
of the
Pensions Fund Act the
rules of a registered fund
such as the plaintiff are declared binding on the fund and the
members and officers thereof and on
any person who claims under the
rules or whose claim is derived from a person so claiming. In terms
of
Rule 10.2
, a participating employer may give notice to terminate
participation in the fund. In terms of
Rule 10.2.2
the trustees, in
consultation with the departing employer, shall deal with the fund
credit of each member in service of the employer
by either
transferring it to another retirement vehicle or to the member as a
lump sum.
Of
importance is the provision in
Rule 10.2.3
3
STYLE="font-size: 13pt">
6
which reads:
“
The
EMPLOYER shall then cease to be an EMPLOYER in relation to the FUND
and its MEMBERS shall cease to be MEMBERS
and
shall have no further claim on the FUND in respect of their
participation in the FUND in relation to that EMPLOYER.”
(Emphasis added)
This
rule gives effect to
section 14(2)(a)
and (b)
3
STYLE="font-size: 13pt">
7
of the
Pension Funds Act: All
the assets and liabilities of the
participating employer and its employees are transferred to the
receiving fund. The employees
are henceforth former members who have
in law no claim to any fund benefits. The fund is not empowered to
confer any benefit
on them. On transfer the link between employer,
member and the plaintiff, was severed. A former member henceforth
had no claims
against the plaintiff for retirement benefits.
From
what has been set out above, the members, on leaving the fund
together with the employer, are not entitled to be paid any
amount
from the fund. The rules do not authorise payment of any money in
addition to that for which specific provision is made.
It then
follows that payment to the defendant was also
ultra
vires
the powers of
the plaintiff as a registered pension fund organisation.
As
stated above in
Wilkens
NO
, the facts in the
present matter are actually
a
fortiori
. In terms
of the plaintiff’s rules the defendant has no right to be paid
from the plaintiff’s assets. As a matter
of law the plaintiff
may not make payment other than in terms of the
Pension Funds Act
and
its rules. Nowhere in the
Pension Funds Act and
the rules do we
find anything conferring this power on the plaintiff and its
management.
It
then follows that this case is on all fours with the judgment of
Harms JA in
Bowman
supra
.
Money was paid erroneously by a person entrusted with the
administration thereof in a representative capacity, namely the
plaintiff. The plaintiff is in the same position as for example a
liquidator or an executor of a deceased estate. It is the custodian
of money earmarked for others. It is not necessary to show more than
that there were erroneous payments made, which payments
were beyond
the powers of the plaintiff and which had the effect of reducing
retirement benefits of other members of the plaintiff.
The plaintiff
therefore, in my view, discharged the onus resting upon it for the
repayment of the amount paid in error.
CONCLUSION
For
the reasons set out above, I therefore come to the conclusion that
the following order should be made:
The
appeal succeeds with costs, which include the costs occasioned by
the employment of two counsel.
The
order of the court
a
quo
is set aside
and substituted with the following:
“
Judgment is granted
against the defendant in favour of the plaintiff in the following
terms:
Payment
of R360 417.97;
Interest
on R360 417.97 at the rate of 15.5% per annum from 14 May 2008 until
date of payment.
Costs
of suit.”
DATED
THE ___ DAY OF ______________ 2013 AT JOHANNESBURG
____________________
C.
J. CLAASSEN
JUDGE
OF THE HIGH COURT
I
agree
______________________
C.
LAMONT
JUDGE
OF THE HIGH COURT
I
agree
_______________________
K.
FOULKES-JONES
ACTING
JUDGE OF THE HIGH COURT
It
is so ordered.
Counsel
for the Appellant: Adv P. Pauw SC
Adv
W. Strobl
Counsel
for the Respondent: Adv M. Nowitz
Attorney
for the Appellant: Dadic Attorneys
Attorney
for the Respondent: Nowitz Attorneys
The
appeal was argued on 12 September 2013
1
See
Fortman v SAR & H
(2)
1947 (3) SA 505
(N) at 509;
Palmer v Goldberg
1961 (3) SA 692
(N) at 701H
2
See
United Plant Hire (Pty) Ltd v Hills and Others
1976 (1)
SA 717
(A) at 720E – F
3
“
14. Amalgamations and transfers
.
– (1) Subject to subsection (8), no transaction involving the
amalgamation of any business carried on by a registered
fund with
any business carried on by any other person (irrespective of whether
that other person is or is not a registered fund),
or transfer of
any business from a registered fund to any other person, or the
transfer of any business from any other person
to a registered fund,
shall be of any force or effect unless –
(a) the scheme for the proposed transaction,
including a copy of every actuarial or other statement taken into
account for the
purposes of the scheme, has been submitted to the
registrar within 180 days of the effective date of the transaction;
(b) the registrar has been furnished with such
additional particulars or such special report by a valuator, as he
may deem necessary
for the purposes of this subsection;
(c) the registrar is satisfied that the scheme
referred to in paragraph (a) is reasonable and equitable and accords
full recognition
–
(i) to the rights and reasonable benefit
expectations of the members transferring in terms of the rules of a
fund where such rights
and reasonable expectations relate to service
prior to the date of transfer;
(ii) to any additional benefits in respect of
services prior to the date of transfer, the payment of which has
become established
practice; and
(iii)
to the payment of minimum benefits referred to in
section 14A
,
and that the proposed transactions would not render any fund which
is a party thereto and which will continue to exist if the
proposed
transaction is completed, unable to meet the requirements of this
Act or to remain in a sound financial condition or,
in the case of a
fund which is not in a sound financial condition, to attain such
condition within a period of time deemed by
the registrar to be
satisfactory;
(d) the registrar has been furnished with such
evidence as he may require that the provisions of the said scheme
and the provisions,
in so far as they are applicable, of the rules
of every registered fund which is a part to the transaction, have
been made to
carry out such provision at such times as may be
required by the said scheme;
(e) the registrar has forwarded a certificate to
the principal officer of every such fund to the effect that all
requirements
of this subsection have been satisfied.”
4
See Record p. 349
5
See Record p. 350
6
See Record pp. 390 – 391
7
Section 14(2)(a)
and (b) state: “Whenever a
scheme for any transaction referred to in subsection (1) has come
into force in accordance with
the provisions of this section, the
relevant assets and liabilities of the bodies so amalgamated shall
respectively vest in and
become binding upon the resultant body, or
as the case may be, the relevant assets and liabilities of the body
transferring its
assets and liabilities or any portion thereof shall
respectively vest in and become binding upon the body to which they
are to
be transferred. (b) Any transfer contemplated in paragraph
(a) must be effected within 60 days of the date of the certificate
issued by the registrar in terms of paragraph (e) of subsection
(1).”