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[2014] ZASCA 32
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Gainsford N.O. and Others v Tanzer Transport (Pty) Ltd, In Re; Gainsford N.O. and Others v Tanzer Transport (Pty) Limited and Others (076/2013) [2014] ZASCA 32; 2014 (3) SA 468 (SCA); [2014] 3 All SA 21 (SCA) (28 March 2014)
Links to summary
THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Case
no
:
076/2013
Reportable
In
the matter between:
GAVIN
CECIL GAINSFORD
NO
.....................................................
First
Appellant
BENNIE
KEEVY
NO
......................................................................
Second
Appellant
NAKAMPE
EDWIN RAMAPUPUTLA NO
...................................
Third
Appellant
and
TANZER
TRANSPORT (PTY)
LIMITED
............................................
Respondent
In
the matter between:
GAVIN
CECIL GAINSFORD
NO
...................................................
First
Appellant
BENNIE
KEEVY
NO
....................................................................
Second
Appellant
NAKAMPE
EDWIN RAMAPUPUTLA NO
..................................
Third
Appellant
and
TANZER
TRANSPORT (PTY) LIMITED
..................................
First
Respondent
REGISTRAR
OF COMPANIES
..................................................
Second
Appellant
MASTER
OF THE HIGH COURT, JOHANNESBURG
...........
Third Appellant
STATE
LOGISTICS (PROPRIETARY) LIMITED
.................
Fourth
Respondent
PICK
N PAY RETAILERS (PTY) LIMITED
.................................
Fifth
Respondent
Neutral
citation:
Gavin Cecil Gainsford NO &
others v Tanzer Transport (Pty) Ltd & others
(076/2013)
[2014] ZASCA 32(28 March 2014)
Coram:
Navsa, Mhlantla, Leach and Theron JJA and Swain
AJA
Heard:
12 March 2014
Delivered:
28 March 2014
Summary:
Company — Winding-up —
Liquidator — Proceedings by — Citation —
Liquidators may sue in their capacity
as liquidators or in name of
company in liquidation proceedings under s 386(4)(
a
)
of the Companies Act 61 of 1973
Unlawful
alienations and preferences – Voidable dispositions in terms of
s 341(2) of the Companies Act 51 of 1973
Application
to set aside the winding-up motivated by need to avoid repaying
amount received from the company.
ORDER
On
appeal from:
South Gauteng
High
Court, Johannesburg (Saldulker J sitting as court of first instance):
1 The appeal is
upheld with costs including the costs of two counsel.
2 The the legal
representatives of the respondent will only be entitled to recover
fifty per cent of their costs from the respondent
in respect of the
heads of argument.
3 The order of the
high court is set aside and replaced with the following:
‘
(a)
In the application under case no 2252/10 the following order is made.
(i) The
under-mentioned payments made by Costa Logistics SA (Pty) Ltd (in
liquidation) to the respondent are declared to be void
in terms of s
341(2) of the Companies Act 61 of 1973.
05/03/2009 –
R1 651 681.14
05/03/20009 –
R1 078 542.53
05/03/20009 –
R4 899 817.15
01/04/20009 –
R1 887 596.85
01/04/20009
– R4 718 524.19
[1]
(ii) The respondent
is to pay the amounts in paragraph (i) above to the applicants.
(iii) The respondent
is to pay the applicants’ party and party costs.
(b) The application
under case no 19020/11 is dismissed with costs.’
JUDGMENT
Theron
JA (Navsa, Mhlantla and Leach JJA and Swain AJA concurring):
Introduction
[1]
The purpose of insolvency legislation is to bring about a
concursus
creditorum
which, once in place, has the effect that:
‘
[T]he
hand of the law is laid upon the estate, and at once the rights of
the general body of creditors have to be taken into consideration.
No
transaction can thereafter be entered into with regard to estate
matters by a single creditor to the prejudice of the general
body.
The claim of each creditor must be dealt with as it existed at
the issue of the order.’
[2]
Once
the liquidation order is in place and the ‘the hand of the law
is laid upon the estate’ nothing can thereafter
be done by one
creditor to alter the rights of other creditors.
[3]
The central issue in this appeal relates to payments made by a
company after the commencement of its winding-up.
Background
[2]
This appeal concerns two applications. In the first application (the
main application) the liquidators of Costa Logistics (Pty)
Ltd (the
company) sought an order in the high court declaring that certain
payments made by the company to Tanzer Transport (Proprietary)
Limited (Tanzer) were voidable dispositions as envisaged in s 341(2)
of the Companies Act 61 of 1973 (the Act) and directing that
Tanzer
repay the money to the liquidators. In that application the
liquidators also sought an order, in terms of s 386(5) read
with s
386(4) of the Act, authorising them to institute the main
application. In the second application (the setting aside
application)
Tanzer sought an order setting aside the winding-up of
the company.
[3]
The facts giving rise to this matter are largely common cause. State
Logistics (Proprietary) Limited (State Logistics), is an
Australian
company, and its directors were various members of the Costa family.
After growing into one of Australia’s largest
wholesalers and
exporters of fresh produce, State Logistics expanded to South Africa
where it incorporated the company in 2006.
In June 2007, the company
entered into an agreement with Pick n Pay Retailers (Pty) Limited
(Pick n Pay), one of South Africa’s
largest retailers, to
operate the latter’s distribution centre in Longmeadow,
Johannesburg. The essence of the distribution
agreement was that
goods ordered by Pick n Pay for its retail stores would be received,
quality checked and stored at the distribution
centre and then
distributed by the company to Pick n Pay stores. After the company
took over the operation of the Longmeadow distribution
centre, Tanzer
became a sub-contractor of the company, providing it with
transportation services.
[4]
It is evident that the company experienced logistical and financial
difficulties in operating the distribution centre viably.
One of the
first indications of the problems it experienced was recorded in a
letter from the auditors of the company, dated 25
July 2008, in which
they expressed concerns about the ‘company’s ability to
continue as a going concern’. In
a letter dated 16 January 2009
Pick n Pay expressed its concern about the financial performance of
the distribution centre and
in particular the level of stock losses
and claims for damaged and missing items from its stores and the
distribution centre. On
13 February 2009 Pick n Pay cancelled its
agreement with the company and appointed another company to take over
the management
of the distribution centre with effect from 1 March
2009.
[5]
The resolution to place the company in winding-up, passed on 13
February 2009, was registered by the Registrar of Companies
on 3
March 2009. The winding-up was a creditor’s voluntary
winding-up in terms of ss 349 and 351 of the Act. The directors
of
the company completed a statement of affairs reflecting that as at 13
February 2009 the company was hopelessly insolvent and
that its
liabilities exceeded its assets. Section 352 of the Act provides that
the voluntary winding-up of a company commences
at the time of
registration of the special resolution.
[6]
The liquidators estimated that as at the commencement of the
company’s winding-up, the concurrent creditors were owed
R70 000 000. The two main creditors who lodged claims
against the company were Pick n Pay and State Logistics. Pick n
Pay’s
claim was admitted to proof in the sum of R14 244 630.65,
while State Logistics’ claim, in respect
of supplies and
services rendered by it to the company, was R27 534 209.95.
[7]
During March and April 2009 and after the commencement of the
company’s winding-up, the company paid an amount totalling
R14 231 61.86 to Tanzer. It was these payments that the
liquidators sought to have declared void. The high court (Saldulker
J) determined the main application on the basis of a point
in
limine
raised by Tanzer, namely a lack
of locus standi on the part of the liquidators. It was contended that
the liquidators could only
bring the main application in the name of
the company in liquidation and not as liquidators acting on behalf of
the company. These
contentions found favour with Saldulker J and she
dismissed the main application on that basis and referred the setting
aside application
to trial. The first order in the main application
is difficult to understand in light of the second order. Naturally,
if the winding-up
were to be set aside, the issue that was the
subject of the first order would be rendered moot. Nevertheless, it
is against those
orders that the liquidators appeal, with the leave
of the high court. The dispute, both in the high court and on appeal,
was essentially
between the liquidators and Tanzer.
The
main application
[8]
Tanzer, in its opposition to the main application took a number of
points
in
limine
. Three of these were persisted with on
appeal. The first two of the points
in
limine
raised by Tanzer are interlinked as they relate to
the question of locus standi referred to above and authority of the
liquidators
to institute the main application.
[9]
The first point
in limine
was that it was a fatal flaw for the
liquidators to bring the main application in their capacity as
liquidators rather than in
the name of the company in liquidation.
For this Tanzer relied on s 386(4)(
a
) of the Act which
provides that liquidators must bring or defend proceedings of a civil
nature ‘in the name and on behalf
of the company’.
Section 386(4)(
a
) of the Act provides that:
‘
The
[liquidator’s] powers referred to in subsection (3) are—
(
a
)
to bring or defend in the name and on behalf of the company any
action or other legal proceedings of a civil nature, and, subject
to
the provisions of any law relating to criminal procedure, any
criminal proceedings: Provided that immediately upon the appointment
of a liquidator and in the absence of the authority referred to in
subsection (3), the Master may authorise, upon such terms as
he
thinks fit, any urgent legal proceedings for the recovery of
outstanding accounts;’
[10]
For their part, Mr Gavin Gainsford, one of the joint liquidators, who
deposed to the founding affidavit in the main application
averred
that:
‘
I
am cited herein in my capacity as the joint liquidator of Costa
Logistics SA (Pty) Limited (in liquidation) (“the company”).’
Similar
averments were made by the second and third appellants, the other two
liquidators of the company.
[11]
This matter calls into question the proper citation of a party,
particularly a liquidator, engaged in legal proceedings for
the
recovery of a debt owed to a company in liquidation. The high courts
have adopted two divergent approaches: on the one hand
it is required
that an application be brought in the name of the company in
liquidation; on the other hand, liquidators were permitted
to sue qua
liquidators. I shall presently deal with the divergent authorities.
[12]
Tanzer relied on
Fey
NO & another v Lala Govan Exporters (Pty) Ltd
,
where Epstein AJ held that the reference in s 386 to the
liquidator being empowered ‘in the name and on behalf of
the
company’ underpinned the requirement that any legal proceedings
instituted or engaged in the exercise of that power must
thus
necessarily be brought in the name of the company, rather than that
of the liquidator
nomine
officio
.
[4]
The court reasoned that this requirement was emphasised by its
distinction from other provisions of the Act that enable the
liquidator
to act in his or her own name.
[5]
[13]
Hugo J in
Shepstone
& Wylie & others v Geyser NO
,
[6]
noted the following:
‘
Although
s 386(4)
(a)
of
Act 61 of 1973 empowers the liquidator “to bring . .
.
in the name
and on behalf of the
company any action” . . . in practice such actions are
frequently brought in the name of the liquidator
with the letters NO
(
nomine officio
)
appended. I have been unable to find any rule that distinguishes the
two forms of citation and it seems until now to have been
up to the
whim of the liquidator concerned.’
Similarly,
in
Gainsford
& others NNO v Hiab AB
,
[7]
there was a challenge to the liquidators having launched proceedings
in their own names to have a voidable disposition set aside
on the
basis that they lacked the requisite
locus
standi
.
Mailula J dismissed this challenge, holding that ‘where the
liquidator requires authority to exercise any power,
he
may approach the Court under s 386(5) read with s 388(1) of the
Act’.
[8]
(Emphasis added.)
[14]
In my view the divergent views reflect a distinction without a
difference. The structure of the Act is such that liquidators
are
empowered to perform specified acts including applying to court in a
voluntary winding-up in terms of s 388(1) to determine
any ‘question
arising in the winding-up or to exercise any of the powers which the
Court might exercise if the company were
being wound up by the
Court’. Likewise, s 386(5) provides that:
‘
In
a winding-up by the Court, the Court may, if it deems fit, grant
leave to a liquidator to raise money on the security of the
assets of
the company concerned or to do any other thing which the Court may
consider necessary for winding up the affairs of the
company and
distributing its assets.’
As
stated above, Mailula J was correct in reaching the conclusion
referred to in
Gainsford
,
to have regard to the provisions of s 386(5) which demonstrate that
liquidators act in the stead of the company in liquidation.
A
distinction between the
locus
standi
accorded
to the company in liquidation and that of its liquidators acting in
their representative capacity, is pedantic
[9]
or illusory.
[10]
To disqualify
liquidators properly appointed from acting on behalf of a company in
liquidation would truly be elevating form above
substance.
[15]
Hefer JA when interpreting s 13 of the Act in
Shepstone
& Wylie & others v Geyser NO
,
[11]
stated:
‘
The
express reference in s 13 to a company which is being wound up and to
its liquidator indicates that the Legislature envisaged
cases where
the plaintiff or applicant is a company in liquidation. It could not
have been unaware of the fact that in such cases
the company is
always represented by the liquidator, whether the latter sues
nomine
officii
or not. There can be no doubt
that the reference in the opening words to a company must be
interpreted to include a liquidator
suing on behalf of a company in
liquidation.’
This
dictum in itself ought to be dispositive of this point raised by
Tanzer. Moreover, in
Imperial
Bank Ltd v Barnard & others NNO
,
[12]
the court was faced with an application for an amendment of the
particulars of claim to reflect the name of the close corporation
where the liquidators had been cited in their own names followed by
the letters ‘NNO’. While the court did not
pronounce on the locus standi of the liquidators, it held that the
citation of the liquidators clearly indicated that they were
not
acting in their personal capacities but on behalf of the close
corporation. This is in accordance with the reasoning of Hefer
JA in
Shepstone
& Wylie & others v Geyser NO
.
[16]
It is clear that the liquidators had at no time purported to act in
their personal capacities but were always acting in their
representative capacities as duly appointed joint liquidators of the
company. The claim for the declaratory order and the order
for
payment had always been pursued by the liquidators on behalf of the
company. The result of them litigating in such capacity
is that the
payment sought would not enure for their personal benefit but for the
benefit of the creditors of the company. Predictably,
counsel on
behalf of Tanzer could point to no prejudice being suffered as a
result of the liquidators suing as they did. The high
court, in
finding that the liquidators did not have
locus standi
to
institute the main application, erred.
[17]
I now turn to the other point in limine raised by Tanzer, namely,
lack of authority in that there was no authorisation by the
creditors
to institute the main application. The resolution adopted at the
second meeting of creditors held on 11 August 2009,
authorised the
liquidators ‘to collect any outstanding debts due to the
company’. The liquidators relied on this resolution
for their
authority to institute the main application. It was stated in the
founding affidavit that they had ‘been advised
that [the]
resolution . . . may not be framed widely enough to encompass the
present proceedings’. It was for this reason
that they sought
authorisation from the court to institute the main application.
Tanzer, opportunistically seized on this uncertainty
on the part of
the liquidators, in order to contest the liquidators’
authority.
[18]
It was contended that the liquidators lacked authority to institute
the main application as the resolution upon which they
relied for
such authority was only applicable to amounts owing to the company by
debtors who had not paid the company and did not
apply to proceedings
to recover voidable dispositions in terms of the Act.
[19]
In terms of ss 386(3)(
b
)
and 386(4)(
a)
of the Act,
[13]
the liquidator of a company in a creditors’ voluntary
winding-up, has the power, inter alia, to bring legal proceedings,
provided he or she has been granted authority by creditors. The
resolution grants to the liquidators the authority to recover ‘any
outstanding debts’. The contention advanced by Tanzer that the
resolution is not framed sufficiently wide to cover the main
application as it does not make specific mention of voidable
dispositions, cannot be sustained. The terminology of the resolution
is certainly broad enough to encompass any debt due to the company,
including a debt arising by virtue of a voidable disposition.
[20]
The high court ought to have found that the liquidators were
authorised by the second meeting of the creditors to institute
legal
proceedings and recover debts and that the authority so obtained
extended to include declaratory relief in respect of voidable
dispositions and that the seeking of authority by the liquidators out
of caution was misguided.
[21]
I now turn to deal with the last remaining point
in
limine
,
ie that the liquidators ought to have proceeded by way of trial
action instead of motion proceedings, in that they should have
foreseen that material disputes of fact, not capable of easy
determination on the papers, would have arisen between the
parties.
[14]
Tanzer submitted
that the liquidators should have anticipated, inter alia, that a
material dispute of fact would arise in relation
to the question
whether the company was in fact insolvent at the time of its
winding-up. It was argued that the court should, for
this reason
alone, dismiss the application in its entirety.
[22]
It was suggested by Tanzer that the company’s winding-up was
part of a fraudulent scheme on the part of certain directors
of the
company to enable State Logistics to drain the company of its
remaining funds and evade liability for the company’s
debts.
There is force in this contention and it is accepted by the
liquidators. It was common cause that the company had made payment
of
R4 500 000 to State Logistics immediately prior to the
commencement of the liquidation proceedings. The liquidators
have
already instituted an action against State Logistics in which they
claim repayment of the R4 500 000 to the company.
[23]
It is important to note that State Logistics appears to have
undertaken to guarantee payment of certain of the company’s
debt. A reference to such undertaking is recorded by the company’s
auditors in the financial statements of the company for
the period
ended 29 June 2008. A factor that influenced the auditor’s
determination that the company was viable was that
State Logistics
would ‘continue to procure funding for the ongoing operations
for the company in terms of the binding undertaking
given’.
State Logistics has since reneged on such undertaking. This reneging
by State Logistics does not advance Tanzer’s
case. It in fact
points ineluctably to the inability of the company to have continued
operating without financial support from
State Logistics.
[24]
Tanzer has further alleged that the company was commercially solvent
by virtue of the fact that State Logistics had agreed
to defer
repayment of its loan for a period of twelve months and thus the
company’s debt owing to State Logistics, in the
amount of just
under R36 million, had not yet become due and payable as at the date
of the statement of affairs. Reliance on the
deferment of the loan
must be viewed in the context of the financial predicament that the
company faced. The deferring of the loan
does not assist Tanzer. It
remained a liability of the company on its winding-up. The reality
was that the company was not in a
position to pay its creditors.
[25]
In the view I take of the matter there was no dispute of fact
regarding the solvency of the company. Even prior to its liquidation
there were indications that the company was in financial trouble.
First, according to the draft financial statement of the company
for
the period ended 29 June 2008, it appears that the company had
accumulated losses of R40 675 168 and that the company’s
total liabilities exceeded its assets by R40 675 068. Second,
the letter from the company’s auditors dated 25 July 2008,
expressed concerns about the company’s ability to continue as a
going concern. Third, in an undated affidavit of Simon John
Costa, a
director of State Logistics, he stated that the company was factually
and commercially insolvent at the time of its liquidation
and that it
was doubtful whether any dividend would be payable to concurrent
creditors. Fourth, the KPMG report prepared for the
liquidators and
tabled at the second meeting of creditors held on 11 August 2009,
reflected that as at 6 July 2009 the company
had total assets of
R21 107 666 against liabilities of R71 513 041,
ie an estimated shortfall of R50 405 375.
[26]
Tanzer alleged that the true value of the company’s assets as
at the date of its statement of affairs was R48 167 314.16,
while the liquidators placed this value at R21 107 666. The
difference becomes irrelevant when regard is had to the factors
listed in paragraph 25 above. Furthermore, at the date of the
company’s liquidation the amount in its bank account totalled
R338 781.67. The company’s movable assets subsequently
only realised an amount of R338 029.78. On 12 October
2011, Mr Gainsford deposed to an affidavit in which he stated that
‘as things stand creditors who have proved concurrent
claims
will not receive any dividends whatsoever as there is a deficiency of
R239 231.27 in the estate’. The evidence
demonstrated that
at the time the company was liquidated, it was factually insolvent
and manifestly unable to pay its debts.
[27]
I now turn to deal with the merits of the main application. On behalf
of Tanzer it was contended that the payments sought to
be set aside
by the liquidators were made bona fide in the ordinary course of
business of the company. It was submitted that this
fact was a
complete answer to the application to have the payments set aside. I
disagree. Section 341(2) of the Act is clear in
its terms. In terms
of this section:
‘
Every
disposition of its property (including rights of action) by any
company being wound-up and unable to pay its debts made after
the
commencement of the winding-up, shall be void unless the Court
otherwise orders.’
The
court will only order otherwise in terms of this section in limited
circumstances. To have the defence proferred by Tanzer upheld
in
general terms would have the effect of avoiding the objects of the
Act in that it would undoubtedly prefer one creditor above
another.
[28]
It is no defence to assert as Tanzer does that the dispositions were
made by the company’s staff in ignorance of the
fact that the
company had been placed under winding-up. Staff at a lower level
carry out instructions and in any event that does
not deal with the
question of whether the dispositions were made at a time after the
commencement of the winding-up. As has already
been mentioned, the
instances in which a court will validate a disposition are
limited.
[15]
Even where a
disposition was alleged to constitute ‘a mere administrative
rectification’, the fact that the effect
thereof was to remove
a claim from the concursus and settle it in full in favour of the
creditor concerned, to the prejudice of
the general body of
creditors, is impermissible.
[16]
This is in accordance with the principle that ‘the free assets
of the insolvent at the commencement of the liquidation shall
be
distributed rateably amongst the insolvent’s creditors as at
that date’
.
[17]
[29]
There is in my view no acceptable basis provided by Tanzer for
justifying a departure from the well-established rule of law
which
prohibits any disposition by the company after the commencement of
its winding-up. Ordinarily a court will consider whether
fairness and
justice require the rule to be disregarded.
[18]
No such considerations were disclosed in the papers. On the contrary,
the evidence demonstrates that the exercise of a discretion
in favour
of validity would result in extreme and irreparable prejudice to the
creditors of the company.
[30]
The liquidators were thus entitled to the relief they sought. It is
not necessary to grant an order in terms of para 1 of the
notice of
motion, authorising the liquidators to institute the main
application, as they had the necessary authority in terms of
the
resolution passed at the second meeting of creditors.
The
setting aside application
[31]
The founding affidavit of the setting aside application was deposed
to by Mr Johann Tanzer, a director of the respondent. In
his
affidavit he asserted that there were two bases upon which the
winding-up fell to be set aside. The first was that the company
was
solvent at the time of its liquidation. This has already been dealt
with. The second was that the winding-up of the company
was tainted
by fraud in that it was part of a fraudulent scheme to prefer State
Logistics over all other creditors of the company
and that fraud
unravels all. The liquidators have accepted that the directors, in
paying State Logistics R4 500 000,
acted improperly. As has
already been mentioned, they have instituted an action to recover
that amount.
[32]
It is common cause that the company has no staff, has ceased
operations and is in fact even less than a shell. Regard being
had to
the conclusions reached by me in respect of the solvency
of the company and the considerable claims by the creditors
referred
to in para 6 above, one can rightly ask what would the purpose be of
setting aside the liquidation, other than preserving
the undue
preference that Tanzer enjoyed? The interest of the creditors of the
company dictate that the company should remain in
liquidation and
that the unlawful payments to Tanzer should be repaid into the estate
to be distributed by the liquidators amongst
the proven creditors of
the company in accordance with the law of insolvency. The order
sought by the liquidators in this regard
is in my view justified.
[33]
Finally, the heads of argument filed by Tanzer were in flagrant
disregard of the rules of this court. Rule 10(3)(
g
)
of the Rules of Court provides that ‘heads of argument of any
appellant or respondent shall not exceed 40 pages, unless
a judge, on
request, otherwise orders’. I
n
Caterham
Car Sales & Coachworks Ltd v Birkin Cars (Pty) Ltd
&
another
,
[19]
Harms JA explained that heads of argument should contain the most
important part of the argument and not a recital of the facts
and that quotations from authorities do not amount to
argument.
[20]
He went on to warn that practitioners who fail to give proper
attention to the requirements of the practice note might result in
the disallowance of part of their fees.
[21]
The
heads prepared on behalf of Tanzer abound with an unnecessary and
lengthy analysis of numerous cases, which was singularly
unhelpful.
This court cannot allow such flagrant breaches of the Rules and its
displeasure is reflected in the order set out hereinafter.
Order
[34]
1 The appeal is upheld with costs including the costs of two counsel.
2
The legal representatives of the respondent will only be entitled to
recover fifty per cent of their costs from the respondent
in respect
of the heads of argument.
3
The order of the high court is set aside and replaced with the
following:
‘
(a)
In the application under case no 2252/10 the following order is made.
(i)
The under-mentioned payments made by Costa Logistics SA (Pty) Ltd (in
liquidation) to the respondent are declared to be void
in terms of s
341(2) of the Companies Act 61 of 1973:
05/03/2009
– R1 651 681.14
05/03/20009
– R1 078 542.53
05/03/20009
– R4 899 817.15
01/04/20009 –
R1 887 596.85
01/04/20009
– R4 718 524.19
[22]
(ii) The respondent
is to pay the amounts in paragraph (i) above to the applicants;
(iii) The respondent
is to pay the applicants’ party and party costs.
(b)
The application under case no 19020/11 is dismissed with costs.’
L
V THERON
JUDGE
OF APPEAL
APPEARANCES
For
Appellant:I Miltz SC with J J Bitter
Instructed by:
Edward Nathan
Sonnenbergs Attorneys, Johannesburg
Symington De Kok
Attorneys,
Bloemfontein
For
Respondent: R G Cohen
Instructed
by:
Mervyn Dendy
Attorney, Johannesburg
Lovius
Block Attorneys, Bloemfontein
[1]
There
was a typographical error in the Notice of Motion and this amount
was incorrectly reflected as R4 418 524.19.
[2]
Walker
v Syfret NO
1911 AD 141
at 166. These comments, although made in respect of the
legislation as it then was, apply equally to the Companies Act 61 of
1973.
[3]
Ward
v Barrett NO and another NO
1963
(2) SA 546 (A)
at
552E-G.
[4]
Fey
NO & another v Lala Govan Exporters (Pty) Ltd
2011 (6) SA 181
(W) para 20.
[5]
Ibid,
para 21. See also
Janse
Van Rensburg NO v Ladislav
2006 JDR 0815 (T).
[6]
Shepstone
& Wylie & others v Geyser NO
1998 (1) SA 354
(N) at 359F-G.
[7]
Gainsford
& others NNO v Hiab AB
2000
(3) SA 635 (W).
[8]
Gainsford
& others NNO v Hiab AB
2000 (3) SA 635
(W) at 641E.
[9]
Airborne
Express CC v Van Den Heever NO
(WLD) Case No 05/18568 (7 June 2006).
[10]
Barnard
& others NNO v Imperial Bank Ltd & another
2012 (5) SA 542
(GSJ) paras 23-24. The judgment of Weiner J in
Barnard
came to this court on appeal and is reported as
Imperial
Bank Ltd v Barnard & others NNO
2013 (5) SA 612
(SCA). On appeal, Mpati P stated that as a result of
the court’s finding that the amendment sought did not seek to
introduce
a new plaintiff and that prescription was properly
interrupted on service of the original summons, ‘the present
is not
an appropriate case for a consideration of the question
whether or not a liquidator has standing where a debt owed to a
company
in liquidation is sought to be recovered’ (at 616A-B).
[11]
Shepstone
& Wylie & others v Geyser NO
1998 (3) SA 1036
(SCA) at 1044B-C.
[12]
Imperial
Bank Ltd v Barnard & others NNO
,
[12]
2013 (5) 612 (SCA).
[13]
Section
386(3) provides that: ‘The liquidator of a company-
(a)
….
(b)
in a creditors' voluntary winding-up,
with the authority granted by a meeting of creditors; and
(c)
….
shall
have the powers mentioned in subsection (4).’
Section
386(4)(
a
) provides that: ‘The powers referred to in
subsection (3) are-
(a)
to bring or defend in the name and on
behalf of the company any action or other legal proceedings of a
civil nature, and, subject
to the provisions of any law relating to
criminal procedure, any criminal proceedings: Provided that
immediately upon the appointment
of a liquidator and in the absence
of the authority referred to in subsection (3), the Master may
authorise, upon such terms
as he thinks fit, any urgent legal
proceedings for the recovery of outstanding accounts;’
[14]
Room
Hire
Co
(Pty) Ltd v
Jeppe
Street Mansions (Pty) Ltd
1949 (3) SA 1155
(T) at 1161.
[15]
Lane
NO v Oliver Transport
1997 (1) SA 383
(C) at 386C-387B.
[16]
Schmidt
& another NNO v Absa Bank Ltd
2002 (6) SA 706
(W) para 17. See also
Walker
v Syfret
NO 1911 AD 141.
[17]
Per
Buckley LJ in
Re
Gray’s Inn Construction Co Ltd
[1980] 1 All ER 814
(CA) at 819 quoted with approval by Willis J in
Schmidt
,
supra, para 18.
[18]
Chesterfin
(Pty) Ltd v Contract Forwarding (Pty) Ltd & others
2002 (1) SA 155
(T) at 169D-F.
[19]
Caterham
Car Sales & Coachworks Ltd v Birkin Cars (Pty) Ltd
&
another
1998 (3) SA 938 (SCA).
[20]
Para
37.
[21]
Para
38. See also
Van
der Westhuizen NO v United Democratic Front
1989
(2) SA 242
(A)
at
252B-G.
[22]
There
was a typographical error in the Notice of Motion and this amount
was incorrectly reflected as R4 418 524.19