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[2016] ZAGPJHC 121
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Constantia Insurance Company Limited v Master of the High Court, Johannesburg and Others (23968/2015) [2016] ZAGPJHC 121; 2016 (6) SA 386 (GJ) (13 May 2016)

REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBURG
CASE
NO:
23968/2015
DATE:
13 MAY 2016
In
the matter between:
Constantia
Insurance Company
Limited
................................................................................
Applicant
And
Master
of the High Court,
Johannesburg
...................................................................
First
Respondent
Van
den Heever, Willem Theodore,
N.O
.................................................................
Second
Respondent
Koka,
Jerry Sekete,
N.O
.............................................................................................
Third
Respondent
Judgment
Van der Linde,
J:
Introduction
[1]
This is an application for declaratory
orders to the effect that the Master of the High Court has no power
to consider a response
by a liquidator to a creditor’s
substantiation of its claim in terms of
s.45(3)
of the
Insolvency Act
24 of 1936
, in response to a liquidator’s report to the Master
under that section, after the second meeting of creditors
[1]
of Protech Khuthele Property Investments (Pty) Ltd (in
liquidation),
[2]
when the Master is considering whether to reduce or disallow the
creditor’s proven claim.
[2]
The background and the parties’
competing contentions is as follows. The applicant is a creditor in
the insolvent estate for
which the second and third respondents (“the
liquidators”
[3]
)
have been appointed as provisional liquidators.
[4]
At the second meeting of creditors, the applicant proved three claims
against the Protech estate. Thereafter, on 14 January 2015,
the
liquidators reported to the Master in terms of
s.45(3)
of the
Insolvency Act that
they disputed the applicant’s claim, and
advanced reasons for so disputing the claim.
[5]
[3]
The Master, as she was obliged to do under
s.45(3)
of the
Insolvency Act if
she were minded to reduce or
disallow the applicant’s claim, on 5 February 2015 afforded the
applicant an opportunity to
substantiate its claim and, to that end,
provided the applicant with the  report, and gave the applicant
an opportunity to
respond to it.
[6]
This the applicant did on 19 February 2015.
[7]
[4]
The
Master then, without there being express provision for it either in
the
Insolvency Act, or
in the Companies Act 61 of 1973, or the
winding-up regulations made under that Act, provided the liquidators
with a copy of the
applicant’s substantiation of its claim, and
afforded the liquidators an opportunity to respond to it.
[5]
This the liquidators did by furnishing a
voluminous response two months later on 24 April 2015.
[8]
In it, according to the applicant, they raised new matter that had
not been dealt with before by either the applicant or the liquidator.

The Master then invited the applicant on 7 May 2015 to deal with this
second document emanating from the liquidators.
[9]
The applicant declined, saying that the Master had no power to invite
that response, and in turn the liquidators no power to accept
the
invitation.
[10]
This
attitude led to further exchanges, the liquidators contending that
the Master is entitled to ask for clarification or comment,
[11]
the
Master contending that she will consider “all relevant
information”,
[12]
and
the applicant then launching the application.
[6]
The applicant’s argument focusses on
the scheme of the
Insolvency Act and
sections 44
and
45
in
particular. It submits that the principle of
audi
alteram partem
(hereafter “
audi
”)
does not apply in the present matter, for two reasons. First, the
liquidators are not persons who are potentially affected
by the
decision to be taken by the Master; and second, in any event,
audi
does not permit the filing of a document that the Act does not
permit.
[13]
It contends that sections 44 and 45 of the Act envisage a speedy
procedure to get the winding up process under way, and rely amongst

others, Caldeira v The Master and Another for this proposition.
[14]
The applicant submits that there is no provision, certainly not
expressly and not by implication either, that warrants any further

exchanges between the parties. The Master must make her decision on
the basis only of the liquidators’ initial report and
the
applicant’s response to it, according to its submission.
[7]
The liquidators accept that there is no
express provision for the exchanges beyond the liquidators’
report and the subsequent
creditor’s substantiation. But they
say that the legislation here assigns a quasi-judicial function to
the Master; that unless
excluded expressly or by necessary
implication,
audi
applies
to s.45(3);
[15]
that there was, compliant with that principle, nothing preventing the
Master from inviting from the liquidators a response to the

applicant’s submission; that there was,
a
fortiori
, nothing preventing the
liquidators from accepting that invitation; and that, by the same
token, there was nothing preventing the
Master from inviting the
applicant to respond to the liquidators’ response.
[8]
Before attempting to resolve these
competing contentions, it is necessary to set out the relevant
legislative framework and also,
briefly, the transformation of the
concepts of legitimate expectation and
audi
from common law to constitutional law.  This is necessary for
two reasons. First, administrative law is now virtually completely

fused with constitutional law,
[16]
but neither the applicant nor the respondents relied on or referred
to section 33 of the Constitution or to the Promotion of
Administrative
Justice Act, 3 of 2000 (“PAJA”).
[9]
Second, in the post-constitutional era the
interpretation of legislation, including pre-constitutional
legislation, has become centrally
informed by the Constitution and
the values that found it.
[17]
The
general overarching principle remains that words in a statute must be
given their ordinary grammatical meaning unless to do
so would result
in an absurdity. But now, statutory provisions must be interpreted
purposively; they must be properly contextualised;
and all statutes
must be construed consistently with the Constitution.
[10]The
point has relevance when one considers whether the pre-constitutional
statutes ought to be interpreted according to pre-constitutional

norms pertaining to the absence or presence of
audi
,
or whether one simply looks to section 33 of the Constitution and its
semi-codification in the
Promotion of Administrative Justice Act 3 of
2000
for an answer to the question whether in given circumstances
audi
, or
fair procedure, applies.
[18]
The
legislative background
[11]Sections 44 and 45 of the
Insolvency Act provide
as follows (emphasis supplied):
“
44.
Proof
of liquidated claims against estate
(1)
Any
person
or the representative of any person who has a liquidated
claim against an insolvent estate, the cause of which arose before
the
sequestration of that estate,
may
, at any time
before
the final distribution
of that estate in terms of section one
hundred and thirteen, but subject to the provisions of section one
hundred and four,
prove that claim in the manner hereinafter
provided
: Provided that no claim shall be proved against an
estate after the expiration of a period of three months as from the
conclusion
of the second meeting of creditors of the estate, except
with leave of the Court or the Master, and on payment of such sum to
cover
the cost or any part thereof, occasioned by the late proof of
the claim, as the Court or Master may direct.
(2)
deleted by Act 101 of 1983.
(3)
A
claim
made against an insolvent estate
shall be proved at a
meeting of the creditors
of that estate
to the satisfaction of
the officer presiding at that meeting, who shall admit or reject the
claim
: Provided that the rejection of a claim shall not debar the
claimant from proving that claim at a subsequent meeting of creditors

or from establishing his claim by an action at law, but subject to
the provisions of section seventy-five; and provided further
that if
a creditor has twenty-four or more hours before the time advertised
for the commencement of a meeting of creditors submitted
to the
officer who is to preside at that meeting the affidavit and other
documents mentioned in sub-section (4), he shall be deemed
to have
tendered proof of his claim at that meeting.
(4) Every
such claim shall be proved by affidavit in a form corresponding
substantially with Form C or D in the First Schedule to
this Act.
That affidavit may be made by the creditor or by any person fully
cognizant of the claim, who shall set forth in the
affidavit the
facts upon which his knowledge of the claim is based and the nature
and particulars of the claim, whether it was
acquired by cession
after the institution of the proceedings by which the estate was
sequestrated, and if the creditor holds security
therefor, the nature
and particulars of that security and in the case of security other
than movable property which he has realized
in terms of section
eighty-three, the amount at which he values the security. The said
affidavit or a copy thereof and any documents
submitted in support of
the claim shall be delivered at the office of the officer who is to
preside at the meeting of creditors
not later than twenty-four hours
before the advertised time of the meeting at which the creditor
concerned intends to prove the
claim, failing which the claim shall
not be admitted to proof at that meeting, unless the presiding
officer is of opinion that
through no fault of the creditor he has
been unable to deliver such evidences of his claim within the
prescribed period: Provided
that if a creditor has proved an
incorrect claim, he may, with the consent in writing of the Master
given after consultation with
the trustee and on such conditions as
the Master may think fit to impose, correct his claim or submit a
fresh correct claim.
(5) Any
document by this section required to be delivered before a meeting of
creditors at the office of the officer who is to preside
at that
meeting, shall be open for inspection at such office during office
hours free of charge by any creditor, the trustee or
the insolvent or
the representative of any of them.
(6) A
claim against an insolvent's estate for payment of the purchase price
of goods sold and delivered to the insolvent on an open
account shall
not be admitted to proof unless a statement is submitted in support
of such claim showing the monthly total and a
brief description of
the purchases and payments for the full period of trading or for the
period of twelve months immediately before
the date of sequestration,
whichever is the lesser.
(7)
The
officer presiding at any meeting of creditors may of his own motion
or at the request of the trustee
or his agent or at the request
of any creditor who has proved his claim, or his agent,
call upon
any person present at the meeting who wishes to prove
or who has
at any time proved
a claim against the estate to take an oath
,
to be administered by the said officer,
and to submit to
interrogation by the said officer or by the trustee
or his agent
or by a creditor or the agent of a creditor whose claim has been
proved, in regard to the said claim.
(8) If any
person who wishes to prove or who has at any time proved a claim
against the estate is absent from a meeting of creditors
the officer
who presided or who presides thereat, may summon him in writing to
appear before him at a place and time stated in
the summons, for the
purpose of being interrogated by the said officer or by the trustee
or his agent or by a creditor or the agent
of a creditor whose claim
has been proved, and if he appears in answer to the summons the
provisions of sub-section (7) shall apply.
(9) If any
such person fails without reasonable excuse to appear in answer to
such summons or having appeared or when present at
any meeting of
creditors refuses to take the oath or to submit to the said
interrogation or to answer fully and satisfactorily
any lawful
question put to him, his claim, if already proved, may be expunged by
the Master, and if not yet proved, may be rejected.
(Section
44(4) substituted by section 15 of Act 16 of 1943)
(Section
44(3)(4) and (6) substituted by section 11 of Act 99 of 1965)
(Section
44(2) deleted by section 4 of Act 101 of 1983)
45.
Trustee to examine claims
(1) After
a meeting of creditors
the officer who presided thereat shall
deliver to the trustee every claim proved against the insolvent
estate
at that meeting and every document submitted in support of
the claim.
(2) The
trustee shall examine all available books and documents relating to
the insolvent estate for the purpose of ascertaining
whether the
estate in fact owes the claimant the amount claimed.
(3)
If
the trustee disputes a claim after it has been proved against the
estate at a meeting of creditors, he shall report the fact
in writing
to the Master and shall state in his report his reasons for disputing
the claim. Thereupon the Master may confirm the
claim, or he may,
after having afforded the claimant an opportunity to substantiate his
claim, reduce or disallow the claim, and
if he has done so, he shall
forthwith notify the claimant in writing: Provided that such
reduction or disallowance shall not debar
the claimant from
establishing his claim by an action at law
, but subject to the
provisions of section seventy-five.”
[12]
By
virtue of
s.66
of the
Close Corporations Act 69 of 1984
, the laws
mentioned or contemplated in item 9 of schedule 5 of the
Companies
Act, 71 of 2008
, apply to the liquidation of a close corporation. The
said item 9 of schedule 5 provides that chapter 14 of the old
Companies Act continues
to apply to the winding-up and liquidation of
companies.
Regulation 18
of the regulations made for the winding-up
and judicial management of companies, published under GN R2490 in
GG
4128 of 28 December 1973, and with reference to the Companies Act 61
of 1973 (the previous Companies Act) provides as follows:
“
18.
Claims disputed by liquidator
.—
A
liquidator, who under section 45 (3) of the Insolvency Act, 1936 (Act
24 of 1936), read with section 339 of the Act, disputes
a claim,
shall furnish to the Master in duplicate the reasons for disputing
the claim and shall at the same time—
(a)
forward a copy of the said reasons to the creditor and request him to
furnish his reasons to the Master within 14 days or such
longer
period as the Master may on application allow, why his claim should
not be expunged or reduced
; and
(b) report
to the Master in writing the steps taken by him in this regard.”
[13]
As
will have been seen above, there is no provision, neither in
s.45(3)
of the
Insolvency Act, nor in
regulation 18
the winding-up
regulations, for further submissions to the Master by either the
liquidator or the creditor, beyond the one each
for which
s.45(3)
of
the
Insolvency Act provides
.
[14]The liquidators argue however
that, since the principle of
audi
inheres in our legislative order,
including the
Insolvency Act, and
despite there being no express
provision for the further submissions that they have made to the
Master, and that the Master has
now invited the applicant to make,
the
audi
principle,
if it does not compel these, at the very least permits them and
certainly does not preclude them. According to the liquidators,
since
the Master’s decision is of a quasi-judicial nature their right
to be heard permits these further steps.
Audi
alteram partem
and
legitimate expectation
[15]
The liquidators’ argument is an extension of
the classic presentation of the
audi
principle in our law, developed as it was in Administrator, Transvaal
and Others v Traub and Others.
[19]
The development in Traub was the infusion into our pre-constitutional
law of the concept of “
legitimate
expectation.”
Before this
infusion, the state of our law on
audi
was that where a statute empowered a
public official to make a decision of a quasi-judicial nature that
could potentially affect
the rights or liberties of an individual
prejudicially then, unless
audi
was expressly or by implication excluded, the individual had the
right to be heard.
[20]
[16]Traub
changed this position. First, it held that the right to be heard was
not limited to the case where the individual could
potentially be
affected in her existing rights or liberties. Corbett, CJ referred to
local provincial division decisions that had,
on the authority of
English law development, imported the legitimate expectation
extension into our law. The learned judge held
that there was a need
in this country for such a development.
[21]
Thus the Appellate Division introduced into our Administrative Law
the doctrine that an individual was entitled to be heard before
an
administrative decision was taken in respect of which, in the
particular circumstances of the case, she had a legitimate
expectation
of being heard.
[22]
[17]Traub
went further. It held that the entitlement or otherwise to
audi
was not dependent on whether the nature
of the administrative act was judicial, quasi-judicial or purely
administrative, as was
conventionally the case.
[23]
Specifically, in the pre-Traub era the
audi
principle was applied only the first
two cases; not the third. The learned judge held that that
distinction was unhelpful and had
in any event been rejected in its
country of origin. He held instead that “…
the
Court could just as well eliminate this step and proceed straight to
the question as to whether the decision does prejudicially
affect the
individual concerned.”
[24]
[18]
The doctrine of legitimate expectation has, since
its reception here, carried with it a duality: it was whether the
doctrine meant
only that it applied to afford the individual the
right to be heard; or whether it applied also to afford the
individual a positive
outcome of the hearing. Despite persistent
pressure for its extension to incorporate also the second aspect,
this has not occurred.
A recent authoritative and pointed
identification of where it fits appears in a footnote of a judgment
by Cameron, J in the Constitutional
Court:
[25]
“
The current position in our law
is that where a party has a legitimate expectation he or she is
entitled to procedural fairness.
That is, an opportunity to be heard
before an adverse decision is made. Our courts have expressly left
open the question whether
a legitimate expectation may give rise to a
substantive benefit. See for example Bel Porto School Governing Body
and Others v Premier
of the Western Cape Province and Another
[2002]
ZACC 2
;
2002 (3) SA 265
(CC);
2002 (9) BCLR 891
(CC) at para 96 and
South African Veterinary Council and Another v Szymanski
2003 (4) SA
42
(SCA) at para 15. For a detailed discussion of substantive
legitimate expectation see Duncan v Minister of Environmental Affairs

and Tourism and Another
2010 (6) SA 374
(SCA) at para 13.”
[19]
As Cameron, J points out legitimate expectation in
our law may take the form of so-called procedural legitimate
expectation, or
substantive legitimate expectation. In the case of
the former, the expectation is that one will be heard before a
potentially prejudicial
decision will be taken. In the case of the
latter, the expectation goes further; it is not only that one will be
heard before the
potentially prejudicial decision will be taken, but
also that the decision will be favourable.
[26]
At present then, our law acknowledges the former, not the latter.
[20]
If the doctrine of legitimate expectation served,
pre-Constitution, to extend the circumstances in which
audi
was to find application, did the advent of a constitutional democracy
and with it the fundamental right to just administrative
action
[27]
so vindicate the doctrine that its raison d’être fell
away?
[21]On the contrary,
ss.3(1)
and
3
(2)(a) of the national legislation expressly anticipated by s.33(3)
of the Constitution, PAJA, expressly provide (emphasis supplied):
3(1)
“
Administrative action which materially and adversely
affects the rights
or legitimate expectations
of
any person must be procedurally fair.
3(2)(a)
A fair administrative procedure depends on the circumstances of each
case.”
Consequently, Cora Hoexter
predicts that the “…
popularity
of the legitimate expectation doctrine is unlikely to wane in
future…”
.
[28]
[22]
The advent of the Constitution and PAJA initially
raised the question whether the common law of the review of
administrative action
continued to exist side by side with the new
constitutional administrative law; and the Supreme Court of Appeal
held that it did.
[29]
The Constitutional Court rejected this notion, explaining that there
is one system of law, all aspects of which derived its force
from the
Constitution.
[30]
[23]
It is thus now well accepted that s.33 of the
Constitution incorporates and expands common law principles of
administrative law.
It is also accepted that PAJA is the indicated
vehicle for the enjoyment and enforcement of the constitutional
entitlement to just
administrative action.
[31]
There is thus one system of law; and therefore one system of
administrative law which, leaving aside the principle of legality,
is
currently codified in PAJA. The principle of
audi
alteram partem
, and with it its
embodiment of fair process, reposes within PAJA. In my view it is
therefore unhelpful to go down the path of enquiring
whether
s.45(3)
of the
Insolvency Act excludes
audi
alteram partem
.
[24]
It
is necessary now to consider the process established by
s.45(3)
of
the
Insolvency Act, whether
PAJA applies to it, and if so what the
effect is for the present case.
[25]Ss.3(1) and 3(2)(a) of PAJA
have been quoted above. “
Administrative
action”
is defined in PAJA. One
may accept that the Master, when acting under
s.45(3)
, is an organ of
state which exercises a public power or performs a public function
which adversely affects the rights of a person,
and has a direct,
external, legal effect. The first question that arises here is
whether the liquidators’ rights are affected.
[26]
I
will assume, without deciding, that the liquidators’ rights are
potential affected. I do so on the basis that the liquidators

represent the insolvent estate, and that in that capacity they have
the duty, and the right, to resist the acceptance by the Master
of
unmeritorious claims that might have been proved at the second
meeting of creditors. The Master’s decision, if it is to
accept
the proven claim despite the liquidators’ resistance to it,
could be seen as adversely affecting those rights in a
manner which
has a direct, external legal effect.
[27]
I
will assume too that the Master’s decision could potentially
affect the legitimate expectations of the liquidators. I do
so on the
basis that since the Master’s decision could potentially be to
accept a proven claim despite the liquidators’
resistance
against it at the meeting of creditors, the liquidators have a
legitimate expectation of being heard before the decision
is taken.
[28]The consequence of the above
is that under
s.3(1)
of PAJA the process under
s.45(3)
has to be
procedurally fair, and under
s.3(2)(a)
of PAJA, what is procedurally
fair depends on the circumstances of each case. I proceed then to
consider this, the final, question.
In doing so, I consider first the
procedure as it presents in
s.45(3)
, and thereafter the manner in
which it has unfolded in this case.
A fair
administrative procedure?
[29]
The
first observation relevant to this question that
s.45(3)
expressly
makes provision for a process whereby both protagonists are afforded
the right to be heard. In the case of the liquidators,
it takes the
form of the report in writing which they are required to make, if the
dispute the acceptance of the claim. It is significant
that this
report would come after
s.45(2)
, in terms of which the liquidators
are obliged, after the meeting of creditors at which the contested
claim will have been proved,
to examine “…
all
available books and documents relating to the insolvent estate for
the purpose of ascertaining whether the estate in fact owes
the
claimant the amount claimed.”
[30]One is entitled to accept
then that when the liquidators submit their written report to the
Master under
s.45(3)
, they will be fully equipped to make out their
case for disallowance of the claims.
[31]It is also relevant to bear
in mind that the report to the Master under
s.45(3)
could conceivably
have been preceded by an examination of the creditor under
s.44(7)
of
the
Insolvency Act. This
is an opportunity designed to interrogate
the creditor about the legitimacy of the claim. At such an
opportunity the liquidators
would be able to obtain relevant
information which they could place before the Master in their report
under
s.45(3).
[32]The
second observation relevant to the question whether the procedure
envisaged in
s.45(3)
is fair, is the consideration referred to by
Levinsohn, J (then) in Caldeira. The learned judge pointed out
[32]
that
s.44
has laid down a procedure for the proof of claims in a
manner that was “
relatively simple
and expeditious.”
This fits the
object of the legislature in moving the winding-up of the estate
forward. The decision by the Master under
s.45(3)
is not the final
word on the issue. The party aggrieved by the decision may, amongst
others, review it under
s.151.
Also, the Liquidation and Distribution
Account may be challenged.
[33]The point here is that the
legislature did not intend for the decision under
s.45(3)
to
represent a final and definitive determination of the validity of the
creditor’s claim. That is why the Master, and not
the High
Court, decides the issue.
[34]Moving
on to the facts of this case, the first observation is that the
liquidators do not suggest in their answering affidavits
that this
case has any special feature that places it outside of the ordinary,
vanilla, objection in terms of
s.45(3).
They argue
[33]
that
the
audi
principle applies and that therefore they had the right to place the
additional material before the Master. But they do not deal
with the
fact that the section already gives them the right to place material
before the master.
[35]
They
argue also that if the creditor had the last say in the matter, “
…
a creditor would be able to
lie, misstate facts or present false evidence in substantiation of a
claim and the liquidator would
be powerless to inform the Master of
the true state of affairs.”
But
they have not made out a case that in this instance any of these
hypotheticals find application.
[36]
Finally,
they refer to
regulation 3
of the
Insolvency Act regulations
provision is made in
regulation 3(2)
for the trustee in similar
circumstances to “…
submit
his remarks thereanent to the Master in writing…”
.
In argument counsel for the liquidators conceded, in my view
correctly so, that these regulations do not apply to winding-up of

close corporations. The winding-up regulations apply, and as has been
pointed out above, they do not provide for a liquidators’

reply.
[37]
It
is understandable why there is a distinction. The minister likely
considered that the administration of an insolvent estate of
an
individual is likely to be less comprehensive than that of a company
or close corporation. That would explain why language such
as
“
remarks”
is used. If the same procedure were employed in winding-up, the issue
may have become substantially overburdened. Already in the
present
matter one saw the liquidators’ reply come to 394 pages,
whereas the liquidators’ initial report was 17 pages,
and the
applicant’s substantiation, 19 pages.
[38]
In
sum, in my view
s.45(3)
envisages a procedure that is procedurally
fair, all things being equal. In this case, no facts or circumstances
are disclosed
that rendered the procedure there laid down
procedurally unfair. It follows that the applicant is entitled to the
relief it sought
in the amended draft order handed up during the
hearing.
[39]
There
remain the questions of the authorisation sought by the liquidators,
and the applicants request that they pay costs
de
bonis propriis
. I accept that the
liquidators have not in their answering affidavit explained why
authorisation should be granted. But this is
a case in which the
facts speak for themselves. The legal issue involved is novel, so
both counsel conceded; and the submissions
made on behalf of the
liquidators were lucid and helpful. I will therefore grant the
liquidators the authorisation sought; the
estate is to pay the costs
of the application. Costs of two counsel were warranted; the
liquidators employed only one, but Silk.
[40]
In
the result I make the following order:
(a)
The
second and third respondents are authorised to oppose the
application.
(b)
The
Master of High Court is obliged to decide the second and third
respondents’ application to expunge the applicant’s

proved claim in Protech Khuthele Property Holdings (Pty) Ltd (in
liquidation), in terms of
section 45(3)
read with
section 158
of the
Insolvency Act, 24 of 1936
,
regulation 18
of the Regulations for the
Winding-Up and Judicial Management of Companies promulgated in
Government Notice R2490 of 28 December
1973, and section 339 of the
Companies Act, 61 of 1973, based on the second and third respondents’
report to the Master dated
14 January 2015 and the applicant’s
substantiation dated 19 February 2015, but to the exclusion of the
further document delivered
by the second and third respondents on 24
April 2015.
(c)
The
second and third respondents are ordered to pay the costs of this
application in their representative capacity, including the
costs
occasioned by the employment of two counsel.
WHG van der
Linde
Judge, High
Court
Johannesburg
For
the applicant: Adv. JM Suttner, SC (082 412 2981)
Adv.
AW Pullinger (082 560 6920)
Instructed
by: Ryan D. Lewis Attorneys
Unit 6,
Greenpark
32 Wessels
Road
Rivonia
Tel:
011 234 0690
Ref:RLewis/zm/C076
For the
Second and Third Respondents: Adv. SL Theron, SC (082 412 0531)
Instructed
by: De Vries Inc.
93 Protea
Road
Chislehurston
Sandton
Tel:
011775 6000
Ref:
Mr Bradley Hutchinson
Date
argued: 5 May, 2016
Date
judgment: 13 May, 2016
[1]
Held on 1 December 2014.
[2]
Wound up by order of Masipa, J on 16 September
2014 for inability to pay debts.
[3]
Actually, joint provisional liquidators appointed
on 10 September 2014.
[4]
Included in the answering affidavit is a request
by the liquidators at paragraph 5 that the court authorises their
opposition
in terms of sections 387(3) and 386(5) of the Companies
Act 61 of 1973, since they did not obtain permission form either the

creditors or the Master.
[5]
FA3, pages 23 to 40, i.e. 17 pages long.
[6]
Page 41.
[7]
FA5, pages 42 to 61, i.e. 19 pages long.
[8]
FA6, pages 62 to 456, i.e. 394 pages long.
[9]
FA 7, page 457.
[10]
FA 8, pages 458, 459.
[11]
FA 9, page 460.
[12]
FA 10, page 461, and the
[13]
Applicant’s heads, paragraphs 29, 30, and
33.
[14]
1996(1) SA 868 (N) at 874F.
[15]
Here they rely on National Director of Public
Prosecutions and Another v Mohamed NO and Ohers,
2003 (4) SA 1
(CC)
at paragraph 48. See the respondents’ heads of argument,
paragraph 1.
[16]
See Cora Hoexter, Administrative Law in South
Africa, 2
nd
ed, page 29, footnote 179. The authors says that there remains only
a carve-out for the review of the decisions of private bodies.
[17]
Cool Ideas 1186 CC v Hubbard and Another, 2014(4)
SA 474 (CC) at paragraph [28].
[18]
This is not to suggest that the two positions
need always, or even only sometimes, be juxtaposed. They could
conceivably be conflated
by appropriate interpretation.
[19]
1989 (4) SA 731 (AD).
[20]
Cabinet for the Territory of South West Africa v
Chikane and Another,
1989 (1) SA 349
(A) at 379G.
[21]
At page 761E.
[22]
It is also, perhaps more simply, put as follows:
“
Is there any particular reason
why fairness would require someone to be given a hearing before a
decision is made in a particular
case?”
See Cora Hoexter, op cit, page 395 in fin, 396.
[23]
At page 762F.
[24]
At page 763I.
[25]
Kwazulu-Natal Joint Liaison Committee v MEC for
Education, Kwazulu-Natal and Others,
2013 (4) SA 262
(CC), at
footnote 7. See also the discussion of this judgment by M Murcott in
2015 PER, vol 18, no 1, “
A Future
for the Doctrine of Substantive Legitmate Expectation? The
Implications of Kwazulu-Natal Joint Liaison Committee v MEC
for
Education, Kwazulu-Natal.”
[26]
See generally, Cora Hoexter op cit page 426, sub
nom “
Procedural and substantive
legitimate expectations.”
[27]
S.33(1) of the Constitution of the Republic of
South Africa, 1996: “
33. Just
administrative action
(1) Everyone has the right to
administrative action that is lawful, reasonable and procedurally
fair.
(2) Everyone whose rights have been
adversely affected by administrative action has the right to be
given written reasons.
(3) National legislation must be
enacted to give effect to these rights, and must –
(a) provide for the review of
administrative action by a court or, where appropriate, an
independent and impartial tribunal;
(b) impose a duty on the state to
give effect to the rights in subsections (1) and (2); and
(c) promote an efficient
administration.”
[28]
Cora Hoexter op cit, page 421.
[29]
Commissioner of Customs and Excise v Container
Logistics (Pty) Ltd, 1999(3) SA 771 (SCA).
[30]
Pharmaceutical Manufacturers Association of SA
and Another: in re Ex Parte President of the Republic of South
Africa and Others,
[2000] ZACC 1
;
2000 (2) SA 674
(CC) at paragraph 44.
[31]
Bato Star v Minister of Environmental Affairs,
2004 (4) SA 290
(CC) at paragraph 22; Pharmaceutical Society of
South Africa v Tshabalala-Msimang, NO,
2005 (3) SA 238
(CC) at
paragraph 95.
[32]
At 873 in fin.
[33]
At pages 477 paragraph 7 and following.