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[2010] ZAGPJHC 130
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Papiyana and Others v Master of the High Court and Others (09/9061) [2010] ZAGPJHC 130 (10 December 2010)
REPORTABLE
SOUTH
GAUTENG HIGH COURT, JOHANNESBURG
CASE NO
:
09/9061
DATE:10/12/2010
In the matter between:
PAPIYANA,
MADODA
............................................................
First
Applicant
BOTHA,
THOZAMILE
.............................................................
Second
Applicant
SING,
SUREN
..........................................................................
Third
Applicant
.
VARACHIA,
MOHAMMED
..................................................
..
Fourth
Applicant
EVAN,
ALEX
............................................................................
Fifth
Applicant
DE KOKER,
NOELENE
........................................................
Sixth
Applicant
and
MASTER OF
THE HIGH COURT
.......................................
First
Respondent
PHA PHAMA
AFRICA STAFF SERVICES (PTY) LTD
..
Second
Respondent
MOTALA,
ENVER MOHAMED N.O.
...................................
Third
Respondent
TSEKE,
JOHANNES MPHAHLELE N.O.
.......................
.
Fourth
Respondent
STRYDOM, H
T
.......................................................................
Fifth
Respondent
J U D G M E N T
SALDULKER, J
:
INTRODUCTION
[1]
In
this application, the applicants seek an order reviewing and setting
aside the decision of the first respondent, the Master of
the High
Court (the Master), to convene an enquiry and to grant subpoenas in
respect of them, in terms of section 417 read with
section 418 of the
Companies Act 61 of 1973 (the Companies Act) in respect of the
winding-up of Midrand Computer Repair Centre
(Pty) Ltd (in
liquidation) (Midrand).
BACKGROUND
[2]
The applicants are the former directors of Midrand and the present
directors of Simeka Business Group Limited (Simeka). On 6
March
2008, a winding-up application was launched by the second respondent,
a creditor, against Midrand.
1
This application was unopposed and Midrand was placed under final
winding-up on 1 April 2008, on the grounds that it was unable
to pay
its debts. The third and fourth respondents were appointed as joint
provisional liquidators of Midrand by the Master on
30 April 2008,
with the powers as set out in section 386(1)(a)(b)(c)(e) and 4(f) of
the Companies Act.
[3
]
On 7 August 2008, whilst the third and fourth respondents were
provisional liquidators, they made an application to the Master
to
convene an enquiry in terms of sections 417 and 418 of the Companies
Act. It is common cause that the request to convene an
enquiry was
made to the joint provisional liquidators by the second respondent, a
creditor of Midrand.
[4] In the
application, addressed to the Master, the joint liquidators
emphasised the need to convene an enquiry with particular
emphasis on
the affairs, property, dealings and assets of Midrand and ‘more
specifically since a necessity exists to investigate
the
circumstances under which the company [Midrand] conducted business
with inter alia, the Applicant [the second respondent] as
a
subsidiary of the Ultimate Holdings Company, namely SIMEKA BSG
LIMITED (BSG).’ They stressed the need to subpoena persons
to
attend the enquiry and give evidence as to the background and the
circumstances under which Midrand was trading, particularly
during
the period in which its indebtedness to the second respondent was
incurred. According to the liquidators, given the fact
that Midrand
was not possessed of funds to pursue such an enquiry, the second
respondent would bear the costs of the enquiry. Should
assets and/or
monies be recovered as a result of the enquiry, then in such event,
the second respondent would be entitled to an
order whereby the costs
of the enquiry would be treated as administration costs payable by
the estate, subject to the taxation
of a bill of costs.
[5
]
On 22 August 2008 the Master granted the application. In terms of
the application, the Master authorised the third and fourth
respondents, the then joint provisional liquidators, at the time, to
hold an enquiry into the affairs of Midrand. The fifth respondent
was
appointed as Commissioner. On 2 April 2009 the third and fourth
respondents were appointed as final liquidators.
[6] It is
common cause that a summons was issued in respect of each applicant
in terms of the relevant provisions of the Companies
Act, and the
Commissioner was directed to report to the Master on various aspects
of the enquiry. The Commissioner was also authorised
to further
subpoena
as he may in his discretion regard necessary.
[7
]
In terms of the summons each applicant
inter
alia
:
was to
testify on matters within their knowledge regarding the affairs and
business of Midrand;
was
required, in terms of section 418(2) of the Companies Act, as read
with section 417 thereof, to bring with them and produce to
the
Commissioner, all the books, documents, records and papers in their
possession/custody or under their control relating to
Midrand or
Simeka.
[
8]
On 6 October 2008 and in pursuance of the order of the Master, an
enquiry was convened in terms of the provisions of sections
417 and
418. However, during the enquiry, a letter dated 5 October 2008
addressed by the applicants’ attorneys, Alex Evan
Inc, to the
Master and the Commissioner, was handed to the Commissioner in
support of an application to postpone the enquiry pending
a request
in terms of section 5 of the Promotion of Administration of Justice
Act
2
(PAJA), for reasons from the Master, for his decision to convene the
enquiry and permit the interrogation. Pursuant to submissions
by the
legal representatives on behalf of the second respondent and the
applicants, represented by the fifth applicant, the enquiry
was
postponed by the Commissioner.
[9
]
It is common cause that the second respondent has instituted an
action against Simeka under Case No 28848/08. This cause of
action is
based on an alleged agreement that Simeka bound itself as
co-principal debtor with Midrand to the second respondent.
SUMMARY OF
SUBMISSIONS
[10
]
In their founding affidavit, the applicants relied on the provisions
of PAJA, ‘and where necessary, Section 151 of the
Insolvency
Act, 24 of 1936 (‘the
Insolvency Act); the
Common law; and the
Rules of the above Honourable Court.’ However, the applicants
have abandoned their reliance on PAJA.
The applicants assert that
‘the powers of a provisional liquidator depend on the terms of
his appointment, under section
386 of the Companies Act by the
Master’. In this regard, the applicants contend that the
certificate of appointment of the
provisional liquidators does not
confer upon them the authority to apply for and seek an enquiry in
terms of sections 417 and 418
of the Companies Act. In this regard
they rely on ‘Henochsberg Commentary on the Companies Act’
where the learned
authors, when dealing with section 417, comment as
follows
“
It
is submitted that a provisional liquidator in a compulsory winding-up
cannot apply under the section unless he has the power
under s
386(4)(i) and is authorised accordingly. If (as ordinarily would be
the case) the power under s 386(4)(i) has been withheld
from him, he
would additionally require the leave of the Court under s 386(5) read
with s 387(3).”
3
[11]
Furthermore,
the applicants contend that on 7 August 2008, when the third and
fourth respondents made an application to convene
an enquiry, they
did not have any authority to do so, since at that stage they were
provisional liquidators, having been appointed
on 30 April 2008.
Their status changed only on 2 April 2009 when they were appointed as
final liquidators. The Master should not
have granted the order to
convene an enquiry as the third and fourth respondents had at that
stage:
1)
not been given the power by the Master;
2)
not been given the power by creditors of Midrand at a duly
constituted meeting;
3)
not approached the High Court for leave to proceed.
[12]
The
applicants further contend that should the enquiry proceed, the
provisional liquidators will be doing so on an unlawful basis
and
that the applicants will be compelled to give evidence in an unlawful
and irregular enquiry, which will be prejudicial to them.
In their
founding papers they contend that the primary purpose of the enquiry
is for the applicants to be interrogated by the second
respondent in
regard to issues in Case No 08/28848 where the second respondent has
issued summons against Simeka. In view of all
the aforegoing, the
applicants urge the court to exercise its inherent jurisdiction and
to set aside the proceedings on the basis
that the third and fourth
respondents did not have the necessary power to apply to the Master
to order an enquiry in terms of section
417 and 418 of the Companies
Act, and that the Master’s conduct, in exercising his public
power, in convening the enquiry,
was clearly wrong in that it
constituted an abuse of process.
[13
]
In answer to these contentions the respondents contend that the
purpose of the enquiry is to enquire into the honest conduct
of the
affairs of Midrand and to facilitate the acquisition of information
and the recovery of assets for the benefit of its creditors,
and that
the Master specifically granted the joint provisional liquidators
powers in terms of section 386(1)(e) which empowered
them to conduct
an enquiry into the affairs of Midrand. The certificate appointing
the liquidators did not exclude the powers of
the provisional
liquidators to make an application to the Master for an enquiry.
Furthermore, it made no difference that when the
application for the
enquiry was made, the third and fourth respondents were provisional
liquidators, as they were finally appointed
as liquidators only on 2
April 2009. The definition of ’any person’ includes a
provisional liquidator and / or a creditor.
They contend that on this
basis alone the provisional liquidators had the authority to apply to
the Master for an enquiry in terms
of section 417, read with section
418 of the Companies Act. In any event now that the liquidators have
become final liquidators
there cannot be any reason for the enquiry
not to proceed.
THE LAW
[14
]
The third and fourth respondents were appointed as joint
provisional liquidators in terms of sections 386(1)(a)(b)(c)(e) and
4(f) of the Companies Act on 30 April 2008. When they were finally
appointed as joint liquidators, a year later, their powers in
terms
of the aforesaid sections remained unchanged. The relevant sections
inter
alia
,
read as follows:
“
Powers
of Liquidators
386 General
powers
(1) The liquidator in any
winding-up shall have power-
(a)
to execute in the name and on behalf of the company all deeds,
receipts and other documents, and for that purpose
to use the
company's seal;
(b)
to prove a claim in the estate of any debtor or contributory of the
company and receive payment in full or a
dividend in respect thereof;
(c)
to draw, accept, make and endorse any bill of exchange or promissory
note in the name and on behalf of the company:
Provided that no
liquidator shall, except with the leave of the Court or the authority
referred to in subsection (3) or (4), or
for the purposes of carrying
on the business of the company in terms of subsection (4)
(f)
have
power to impose any additional liabilities upon the company;
…
.
(e)
subject to the provisions of subsections (3), (4) and (5), to take
such measures for the protection and better administration of
the
affairs and property of the company as the trustee of an insolvent
estate may take in the ordinary course of his duties and
without the
authority of a resolution of creditors.
…………
(4)
The powers referred to in subsection (3) are-
(f)
to carry on or discontinue any part of the business of the company in
so far as may be necessary for the beneficial
winding-up thereof:
Provided that, if he considers it necessary, the liquidator may carry
on or discontinue any part of the business
of the company concerned
before he has obtained the leave of the Court or the authority
referred to in subsection (3), but shall
not in that event be
entitled, as between himself and the creditors or contributories of
the company, to include the cost of any
goods purchased by him in the
costs of the winding-up of the company unless such goods were
necessary for the immediate purpose
of carrying on the business of
the company and there are funds available for payment of the cost of
such goods after providing
for the costs of winding-up;
…
(i)
to perform any act or exercise any power for which he is not
expressly required by this Act to obtain the leave of the Court.”
[1
5] Section
417 and 418 of the Companies Act read
inter
alia
as follows:
“
417
Summoning and examination of persons as to affairs
of company
(1) In any winding-up of a
company unable to pay its debts, the Master or the Court may, at any
time after a winding-up order has
been made,
summon
before him or it any director or officer of the company or person
known or suspected to have in his possession any property
of the
company or believed to be
indebted to the company, or any person whom the Master or the Court
deems capable of giving information concerning the trade, dealings,
affairs or property of the company. (my emphasis)
…………
..
(3)
The Master or the Court may require any such person to produce any
books or papers in his custody or under his control relating
to the
company but without prejudice to any lien claimed with regard to any
such books or papers, and the Court shall have power
to determine all
questions relating to any such lien…..
………
(6)
Any
person who applies for an
examination or enquiry in terms of this section or section 418 shall
be liable for the payment of the costs and expenses incidental
thereto, unless the Master or the Court directs that the whole or any
part of such costs and expenses shall be paid out of the
assets of
the company concerned. (my emphasis)
[doja61y1973s418]
418
Examination by commissioners
(1)
(a)
Every
magistrate and every other person appointed for the purpose by the
Master or
the
Court shall be a commissioner
for the purpose of
taking
evidence or holding any enquiry
under
this Act in connection with the winding-up of any
company
…..
“(my emphasis)
[16]
In
1995, in
Bernstein and
Others v Bester and Others NNO
4
the Constitutional Court carefully analysed the nature and purpose of
the section 417 enquiry. Ackermann J stated as follows:
“
[16]
The enquiry under ss 417 and 418 has many objectives.
(
a
)
It is undoubtedly meant to assist liquidators in
discharging these abovementioned duties so that they can determine
the most advantageous course to adopt in regard to the liquidation of
the company.
(
b
)
In particular it is aimed at achieving the primary
goal of liquidators, namely to determine what the assets
and
liabilities of the company are, to recover the assets and to pay the
liabilities and to do so in a way which will best serve
the interests
of the company's creditors.
(
c
)
Liquidators have a duty to enquire into the
company's affairs.
(
d
)
This is as much one of their functions as reducing
the assets of the company into their possession and dealing
with them
in the prescribed manner, and is an ancillary power in order to
recover properly the company's assets.
(
e
)
It is only by conducting such enquiries that
liquidators can:
(i)
determine what the assets and who the creditors
and contributories
of
the company are;
(ii) properly
investigate doubtful claims against outsiders before pursuing them,
as well as claims against the
company before pursuing them.
………………..
(
g
)
Not infrequently the very persons who are
responsible for the mismanagement of and depredations on the company
are the only persons who have knowledge of the workings of the
company prior to liquidation (such as directors, other officers
and
certain outsiders working in collaboration with the former) and are,
for this very reason, reluctant to assist the liquidator
voluntarily.
In these circumstances it is in the interest of creditors and the
public generally to compel such persons to assist.
(
h
)
The interrogation is essential to enable the
liquidator, who most frequently comes into the company with no
previous knowledge and finds that the company's records are missing
or defective, to get sufficient information to reconstitute
the state
of knowledge that the company should possess; such information is not
limited to documents because it is almost inevitable
that there will
be transactions which are difficult to discover or understand from
the written materials of the company alone.
(
i
)
The liquidator must, in such circumstances, be
enabled to put the affairs of the company in order and to carry
out
the liquidation in all its varying aspects.
(
j
)
The interrogation may be necessary in order to
enable the liquidator, who thinks that he may be under a duty
to
recover something from an officer or employee of a company, or even
from an outsider concerned with the company's affairs, to
discover as
swiftly, easily and inexpensively as possible the facts surrounding
any such possible claim.
(
k
)
There is a responsibility on those who use companies to raise money
from the public and to conduct business on the basis of limited
liability to account to shareholders and creditors for the failure of
the business, if the company goes insolvent. Giving evidence
at a s
417 enquiry is part of this responsibility. This responsibility is
not limited to officers of the company, in the strict
sense, but
extends also to the auditors of the company . . . “
ASSESSMENT
[17
]
Sections 417 and 418 of the Companies Act provide statutory
mechanisms for the proper investigation into the affairs of a
company.
In consequence of the information revealed at an enquiry,
offences or irregularities, if any, and dishonest conduct of the
affairs
of the company are exposed. The acquisition of information
may also lead to the recovery of assets or monies for the benefit of
the company and its creditors.
5
[18]
In terms of section 417(6) of the Companies Act ‘any person’
can apply for an examination or enquiry in terms of sections
417 and
418.
6
The reference to ‘any person’ does not in my view exclude
provisional liquidators who have a statutory duty to enquire
into the
affairs of a company. Any person having an interest in the company
may apply to the Master to order an enquiry. This also
does not
exclude a creditor or member.
7
[1
9]
The enquiry envisaged in terms of sections 417 and 418 is
investigative, the liquidator’s functions being ancillary to
their statutory powers set out in section 386(1)(e). An enquiry into
the affairs of a company is as much a function of a provisional
liquidator as is ‘reducing assets of a company into their
possession’
8
.
[20
]
The applicants challenge the authority of the third and fourth
respondents to apply for an enquiry, on the basis that it
demonstrates
a clear abuse of process. According to the applicants, a
provisional liquidator in a compulsory winding-up cannot apply under
section
417 unless he has the power under section 386(4)(i) and is
authorised to do so accordingly.
9
Section 386(4)(i) reads as follows:
“
(4) The powers referred
to in subsection (3) are –
…
(i)
to perform any act or exercise any power for which he is not
expressly required by this Act to obtain the leave of the Court.”
[
21]
Whether the proposed enquiry constitutes an abuse of process must
depend on the particular circumstances of the case.The third
and
fourth respondents were appointed as provisional liquidators in terms
of the relevant provisions of section 386. At the time
they made the
application for an enquiry, 7 August 2008, they were not finally
appointed. However, in my view this makes no difference,
because they
were finally appointed on 2 April 2009, and their functions as
liquidators, remained unchanged. In terms of section
386(e) their
powers include the taking of ‘such measures for the protection
and better administration of the affairs and
property of the
company.’ This must in my view include the power to apply to
the Master for an enquiry to be held in terms
of section 417(1). To
exclude them from applying to the Master for an enquiry merely
because they were provisional liquidators
would make no sense. There
is no indication that the Master limited the powers of the
provisional liquidators so that only the
final liquidators could
apply for a section 417 and 418 enquiry. Clearly, the third and
fourth respondents would be failing in
their duties if they were to
neglect to make use of the elaborate machinery provided by the
Companies Act, under which they were
appointed.
[2
2]
Section 417, empowers the Master or the court, in any winding-up of
a company unable to pay its debts, at any time after a winding-up
order has been made, to summon before him or it, any director or
officer of the company or person known or suspected to have in
his
possession any property of the company or believed to be indebted to
the company, or any person whom the Master or the court
deems capable
of giving information concerning the trade, dealings, affairs or
property of the company. Clearly, the wording of
the section lends
itself to no other interpretation.
[2
3]
Consequently, in my view the application by the then provisional
liquidators to the Master to order an enquiry in terms of section
417
read with section 418 of the Companies Act does not affect the
validity of the order made by the Master constituting the enquiry.
10
The order was made by the Master who is vested with the power to do
so, and whether he made the order in consequence of an application
received by the provisional liquidators, or a creditor would make no
difference.
[24
] In
their founding papers, the applicants further contend that the
liquidators are holding a secret enquiry and are intent on using
this
enquiry to hold an interrogation about Simeka. I find this contention
difficult to follow. According to the papers, the second
respondent
is a creditor of Midrand. There is a need to investigate the
circumstances under which Midrand conducted business with
the second
respondent, particularly during the period under which its
indebtedness to the second respondent was incurred. There
is a need
for the affairs of Midrand to be investigated in the proposed
insolvency enquiry.
[2
5]
The applicants contend that should the enquiry proceed, the joint
liquidators will be doing so on an unlawful basis and the
applicants
will be compelled to give evidence in an unlawful and irregular
enquiry, which will be prejudicial to them. In my view,
these
contentions of the applicants are fallacious. There is no indication
that the Master acted unlawfully and wrongfully in granting
the
application by the provisional liquidators to hold an enquiry in
terms of sections 417 and 418 of the Companies Act.
[2
6]
Furthermore, the liquidators have no knowledge of the manner in
which Midrand‘s affairs were conducted and the circumstances
under which Midrand conducted business with the second respondent.
The applicants are former directors of Midrand and are in a
position
to know about the affairs of Midrand. There is clearly a need to
interrogate the applicants concerning their knowledge
regarding its
straitened position.
Furthermore
there is no indication that the proposed interrogation will be unfair
and abusive
11
.
The applicants have failed to demonstrate that there will be an abuse
of process.
[27]
In
Ferreira
v Levin NO and Others; Vryenhoek and Others v Powell NO and Others
,
12
Sachs J stated as follows:
“
The
whole purpose of getting to the bottom of the collapse so as to
inform and reimburse as much as possible those who invested
or traded
in good faith, would be defeated if the director could shield him or
herself behind the right not to answer incriminating
questions. It
is precisely in areas where assets have been fraudulently disposed
of
,
that specially penetrative investigations for their recovery might be
required.
Company
directors and other officials who appeal to the public for funds and
engage in public commercial activity with the benefit
of not being
personally liable for company debts, cannot complain if they are
subsequently called upon to account for their stewardship,
at
least, for the purposes of discovering all assets so as to minimize
the loss to creditors and give full information to shareholders
…
Indeed, it would be ironical if crooked directors were more able to
avoid submitting themselves to an enquiry than honest
ones.”(my
emphasis)
[28] In
Cloverbay
Ltd (Joint Administrators) v Bank of Credit and Commerce
International SA
13
the
Court of Appeal outlined the following criteria for the exercise of
the court's discretion whether to order an examination:
"
It
is clear that in exercising the discretion the court has to balance
the requirements of the liquidator against any possible oppression
to
the person to be examined. Such balancing depends on the relationship
between the importance to the liquidator of obtaining
the information
on the one hand and the degree of oppression to the person sought to
be examined on the other. If the information
required is fundamental
to any assessment of whether or not there is a cause of action and
the degree of oppression is small (for
example in the case of
ordering premature discovery of documents) the balance will
manifestly come down in favour of making the
order. Conversely, if
the liquidator is seeking merely to dot the i’s and cross the
t’s of a fairly clear claim by
examining the proposed defendant
to discover his defence, the balance would come down against making
the order. Of course, few
cases will be so clear: it will be for the
judge in each case to reach his own conclusion
.”
[29] In
Cloverbay
,
it was held that a clear case of abuse must be established in order
to secure a discharge from a subpoena
.
Absent such proof it is the duty of persons who are subpoenaed to
co-operate with the courts, and to attend court for the purpose
of
giving evidence or producing documents when required to do so.
[30
]
All the applicants are former directors of Midrand. It must follow
that they would have been intimately involved with the affairs
of
Midrand and would in all probability have particular knowledge
regarding the affairs of Midrand and its association with Simeka.
All
of the applicants would have assisted in providing information as to
whether or not the affairs of Midrand were properly conducted,
whether there were any irregularities, the cause of its insolvency
and whether additional assets can be located for the benefit
of
creditors of Midrand in liquidation.
CONCLUSION
[31
]
Company directors cannot hide behind the right not to answer
incriminating questions. Transparency, accountability and honesty
in
the conduct of the affairs of a company is a matter of public
concern, requiring the exposure of dishonest conduct, if any,
as a
consequence of the enquiry and the possible restoration to the
company of assets misappropriated from it.
[32
]
It is clear that the third and fourth respondents fall into the
category of ‘any person’ envisaged in section 417(6)
of
the Companies Act and their powers include applying for a section 417
and 418 enquiry to be held. Even if the Master did not
specifically
include such powers in their certificate of appointment in terms of
section 386, when he received their application
for the enquiry to be
conducted, and granted their application, the Master expressly gave
the provisional liquidators such powers
or at the very least, by
implication bestowed such powers on them. As liquidators they had the
powers ‘to take such measures
for the protection and better
administration of the affairs and property’ of Midrand and this
would include making an application
to convene an enquiry.
[33
]
In my view, the powers of the third and fourth respondents as
provisional liquidators at the time the application was made to
the
Master was not limited. The third and fourth respondents clearly had
the authority to make an application to convene an enquiry
in terms
of sections 417 and 418 of the Companies Act to the Master. The
Master granted the application. There is no evidence that
the
Master’s conduct in doing so, was unfair, or an abuse of
process. The Master did not wrongly exercise the power vested
in him.
Clearly there was a legitimate purpose for an enquiry to be held.
Consequently, the Master’s decision to convene
an enquiry in
terms of sections 417 and 418 of the Companies Act does not fall to
be reviewed.
[34
]
As regards the costs aspect, the scope and complexity of this matter
warranted the services of two counsel. It is therefore appropriate
that the costs include the costs of two counsel.
[35
]
Accordingly, the following order is made:
The
application is dismissed with costs, including the costs of two
counsel.
___________________
HK SALDULKER
SOUTH GAUTENG -
HIGH
COURT JOHANNESBURG
DATE OF HEARING
.................................
29
JULY 2010
DATE OF
JUDGMENT
.............................
10
DECEMBER 2010
COUNSEL FOR APPLICANT
...................
ADV
MASELLE
INSTRUCTED BY
.....................................
MCHUNU
ATTORNEYS
COUNSEL FOR RESPONDENT
...........
ADV
PRETORIUS
…................................................................
ADV
MALAN
INSTRUCTED BY
.....................................
HUNTS
ATTORNEYS
1
In the
Witwatersrand
Local Division
.
(Now, the
South
Gauteng High Court-Johannesburg
)
2
Act no 3 of 2000.
3
Henochsberg,
Commentary
on the Companies Act
,
page 891
4
See
Bernstein and
Others v Bester and Others NNO
[1996] ZACC 2
;
1996 (2) SA 751
(CC) at 766C and
Ferreira
v Levin NO and Others; Vryenhoek and Others v Powell NO and Others
1996 (1) SA 984
(CC) at 1057G.
5
See
Bernstein and
Others v Bester and Others NNO
at 767G and
Ferreira v
Levin NO and Others; Vryenhoek and Others v Powell NO and Others
at 1057G.
6
Ex parte Brivik
1915 (3) SA 790
(W) at 791.
7
Venter v Williams
1982 (2) SA 310
(N) at 314 Friedman J stated
obiter
that, “I cannot imagine that the pecuniary interest required
of a person applying to Court for the holding of an enquiry
under s
417 must be any greater than that of one
who applies for a
winding-up order. In fact, I am inclined to agree with Mr
Zulman
,
who appears on behalf of Williams, that, if anything, one would
expect that a lesser interest would suffice in the case of a
person
applying for the enquiry. It is, however, unnecessary to say
anything more than that, in my judgment, either a prospective
or
contingent creditor would have a sufficient pecuniary interest to
enable him to apply for a commission of enquiry.”
8
Bernstein
and Others v Bester and Others NNO
, p766 C para[16] [a]
9
Commentary,
Henochsberg
,
p 891
10
Botha v Strydom and
Others
1992 (2) SA
155
(N) at 159B-G.
11
Pretoria
Portland Cement Co Ltd and another v Competition Commission and
others
2003(2) SA 385 (SCA), at 401 para [34] Schutz JA stated “
The
reason behind this conclusion is to be found in the history of
review procedure. The pattern of review may be fairly complicated
today and is to a considerable extent governed by statute. But the
essential nature of review is simple. It is a means by which
those
in positions of authority may be compelled to behave lawfully.”
12
1996 (1) SA 984
(CC) at 1116 para [261]. See also, in this regard,
paras [122]- [127].
13
[1991] 1 All ER 894
at 899.