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[2014] ZASCA 63
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Fintech (Pty) Ltd v Awake Solutions (Pty) Ltd and Others (218/13) [2014] ZASCA 63; [2014] 3 All SA 664 (SCA) (15 May 2014)
THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Case
No: 218/13
Reportable
In
the matter between
FINTECH
(PTY)
LTD
...................................................................................................
APPELLANT
and
AWAKE
SOLUTIONS (PTY)
LTD
...............................................................
FIRST
RESPONDENT
ALAN
LAWRENCE
WALKER
.................................................................
SECOND
RESPONDENT
CHOICE
DECISIONS 162 (PTY)
LTD
.......................................................
THIRD
RESPONDENT
ALTRON
ONE FINANCE SOLUTIONS (PTY) LTD
............................
FOURTH
RESPONDENT
PETER
CHARLES BOTHOMLEY
N.O.
…...............................................
FIFTH
RESPONDENT
ENVER
MOHAMED MOTALA
N.O
...........................................................
SIXTH
RESPONDENT
Neutral
citation:
Fintech (Pty) Ltd v Awake
Solutions (Pty) Ltd
(218/13)
[2014]
ZASCA 63
(15 May 2014)
Coram:
Mpati P, Bosielo, Leach, Saldulker JJA
and Swain AJA
Heard:
19 FEBRUARY 2014
Delivered:
15 MAY 2014
Summary
:
Company – Winding-up – validity of administrative act of
final deregistration in terms of s 73 of Act 61 of 1973 when
company
already under winding-up order.
ORDER
On
appeal from:
South Gauteng High Court,
Johannesburg (Van Oosten J sitting as court of first instance):
The
appeal is dismissed with costs, which shall include those of two
counsel where employed.
JUDGMENT
MPATI
P (BOSIELO, LEACH, SALDULKER JJA and SWAIN AJA concurring):
[1]
This appeal concerns the validity of a company’s
deregistration, in terms of the provisions of section 73 of the now
repealed Companies Act 61 of 1973 (the previous Act), when the
deregistration occurred whilst the company was under provisional
or
final liquidation. The appellant (Fintech) sought orders in the South
Gauteng High Court, first, declaring null and void, alternatively
setting aside, an order issued on 26 October 2010 in terms of which
an earlier order provisionally winding up the respondent was
set
aside; second, declaring null and void, alternatively setting aside
an order issued on 21 October 2011 in favour of the first
respondent
compelling Fintech to produce certain documentary evidence; and
third, an order directing the second respondent to repay
to Fintech a
sum of R1 764 641,34, with costs on the scale as between
attorney and client. The basis upon which the first
two orders were
sought was that the first respondent (to which I shall henceforth
refer as ‘Awake Solutions’) had been
deregistered on 16
July 2010 with the result that it had no legal status when the orders
were granted. As to the third order sought
(repayment of the amount
mentioned above), the basis was that at the times the various
payments were made by Fintech for the account
of Awake Solutions the
latter had no legal status as a consequence of its deregistration and
the moneys paid were thus not due
to it. The court below (Van Oosten
J) dismissed Fintech’s application with costs. This appeal is
with its leave.
[2]
Awake Solutions markets and distributes security and related
equipment to its clients. During 2002 it concluded a written
agreement
(co-operation agreement) with a company known as Corporate
Finance Solutions, which later changed its name to Altron One Finance
Solutions (Pty) Ltd (the fourth respondent in this appeal, to which I
shall refer as ‘Altron’). In terms of the co-operation
agreement Awake Solutions would refer its clients to Altron for
purposes of financing the purchase of security equipment from the
former. The co-operation agreement also provided for and regulated
the sharing between its parties of profits generated by Altron
from
the business it would conduct with clients referred to it by Awake
Solutions. During February 2004 Fintech, in terms of a
sale and
assignment agreement it concluded with Altron, acquired and assumed
Altron’s rights and obligations under the co-operation
agreement.
[3]
On 4 April 2008 Awake Solutions was placed under provisional
liquidation by order of the South Gauteng High Court, returnable
on
30 June 2008. The fifth and sixth respondents were duly appointed as
the joint provisional liquidators. The question as to whether
or not
the provisional order was made final on the return day is in dispute.
Upon becoming aware of the provisional liquidation
of Awake
Solutions, and by letter dated 28 May 2008, Fintech terminated that
part of the co-operation agreement that related to
the introduction,
by Awake Solutions, of new clients to Fintech. Believing thereafter
that the provisional liquidation order was
made final, Fintech
refused to have any dealings with Awake Solutions or the second
respondent, Mr Alan Lawrence Walker, the sole
director of Awake
Solutions, in relation to the co-operation agreement.
[4]
It is common cause that on 20 October 2010 the second respondent
(Walker) instituted motion proceedings seeking an order setting
aside
the order in terms of which Awake Solutions was placed under
provisional liquidation and discharging it from liquidation.
The
application was brought on the basis that no final liquidation order
had ever been granted. The provisional liquidation order
was set
aside on 26 October 2010 and Awake Solutions was consequently
discharged from liquidation as from that date. A meeting
was
subsequently held on 22 November 2010 between the parties to the
co-operation agreement and their legal representatives and
three days
later Fintech furnished Awake Solutions with information relating to
client contracts. On 17 December 2010 Fintech made
a payment to Awake
Solutions’ attorney in the sum of R1 186 196,39,
being the capital amount of the profit share
that was allegedly due
to Awake Solutions in terms of the co-operation agreement. Following
another application launched by Awake
Solutions against Fintech and
Altron in the South Gauteng High Court during March 2011 for payment
of further sums of money and
disclosure of certain information
relating to the co-operation agreement, an agreement was reached in
terms of which Fintech paid
to Awake Solutions’ attorneys the
amount of R72 310 in respect of profit share and R251 920,31
in respect of arrear
interest on 17 May 2011. Further payments were
made but paid into the account of the third respondent (Choice
Decisions). The total
amount paid and now claimed by Fintech was
R1 764 641,34. Although further information had been given
to it by Fintech,
Awake Solutions amended its notice of motion and
sought an order compelling the respondents in that application to
produce certain
documents and deliver further information. The order
sought was granted on 21 October 2011. It is one of the orders that
Fintech
unsuccessfully sought to have set aside by the court below.
An application for leave to appeal that order is still pending.
[5]
After the parties had exchanged some correspondence Fintech
instructed its attorneys ‘to investigate the merits of the
further claims of Awake Solutions, with specific reference to the
winding – up proceedings . . .’ and the subsequent
application to set aside the provisional order of liquidation.
Meanwhile, Fintech decided to obtain a report from the Companies
and
Intellectual Property Commission (CIPC), established by s 185 of the
Companies Act 71 of 2008 (the Act), which came into operation
on 1
May 2011. As a result, it discovered that Awake Solutions was finally
deregistered on 16 July 2010. This discovery was conveyed
to Awake
Solutions’ attorneys by letter dated 28 March 2012. And on the
strength of the investigations conducted by its attorneys,
Fintech
alleged in its founding affidavit that contrary to what was contended
in the application for the setting aside of the provisional
liquidation order – that no final liquidation order had ever
been granted against Awake Solutions – it appeared that
a final
winding-up order was indeed granted on 1 July 2008. Fintech thus
contended in the court below that the court orders obtained
by Awake
Solutions on 26 October 2010 and 21 October 2011 were both a nullity
and of no force and effect, alternatively, they were
erroneously
granted as contemplated in rule 42 of the Uniform Rules of Court.
This is because (a) in respect of the first order,
Awake Solutions
was in deregistration, alternatively placed under final winding-up
with the result that the application for the
setting aside of the
provisional winding-up order was not legally competent under the
circumstances and, (b) with regard to the
second order (of 21 October
2011) Awake Solutions was, at the stage the application was launched,
already finally deregistered
and the application brought in its name
was not legally competent. It was submitted, in the alternative, that
Awake Solutions was
placed under final winding-up and the application
in its name was not legally competent without the involvement of the
liquidators.
[6]
The fact that Awake Solutions was finally deregistered on 16 July
2010 is common cause. In the answering affidavit, deposed
to by
Walker in his capacity as sole shareholder and director of Awake
Solutions as well as Choice Decisions, Walker testified
that until
Fintech brought the fact of the deregistration of Awake Solutions to
his attention he was totally unaware of it. Upon
becoming aware of
the deregistration he ‘immediately took steps to have [it]
cancelled’ by submitting an application
to the CIPC together
with Awake Solutions’ outstanding annual returns.
[1]
Awake Solutions had failed to file annual returns as required in
terms of s 173 of the previous Act, hence its deregistration.
On 17
April 2012 the deregistration process was ‘cancelled’
and, as at 18 June 2012 the status of Awake Solutions as
reflected on
a copy of a CIPC Company Report annexed to the founding affidavit was
‘In Business’. For all intents and
purposes this means
that the registration of Awake Solutions had been restored. It may be
mentioned, for completeness, that the
final deregistration of Choice
Decisions for annual return non-compliance, which also occurred on 16
July 2010, was ‘cancelled’
on 1 March 2012.
[7]
The effect of deregistration is that it ‘puts an end to the
existence of the company’, its corporate personality
ending ‘in
the same way that a natural person ceases to exist at death’.
[2]
This position is made clear in the Act, where s 83(1) provides that a
company ‘is dissolved as of the date its name is removed
from
the companies register’. Regulation 40(6) of the Companies
Regulations, 2011
[3]
provides that the Commission (CIPC) ‘may re-instate a
deregistered company . . . only after it has filed the outstanding
annual returns and paid the outstanding prescribed fee in respect
thereof’. It was submitted on behalf of the appellant that
the
Act and regulations do not provide for any cancellation process; that
the CIPC is not authorised to ‘cancel’ any
deregistration
process and that ‘any action to do so would be
ultra
vires
its powers in terms of the [Act] and the regulations and therefore
invalid and void
ab
initio
’.
It was further contended that Walker’s intimation that he had
applied to have the deregistration of Awake Solutions
‘cancelled’
was a clear fabrication which ought to have been rejected by the
court below, because the respondents failed
to provide documentary
proof to substantiate this assertion. The premise relied on by
Walker, so the argument continued, was opportunistic
in that the
recordal that a cancellation of the deregistration process had
occurred after Awake Solutions (and Choice Decisions)
had been
deregistered, enabled him to postulate that the two companies had
continued in existence after the cancellation of the
deregstration as
if they had never been deregistered. It was accordingly contended
that the expression ‘
Cancellation
of the Deregistration Process
’
recorded in the CIPC Company Reports relating to Awake Solutions and
Choice Decisions ‘refers to re-instatement of
registration [as
provided for in the Act and regulations] and not cancellation or
elimination of the entire process of and including
the initial
deregistration’.
[8]
The case for the appellant on the issue of deregistration is that (a)
as of the date of the removal of their names from the
companies
register, namely 16 July 2010, Awake Solutions and Choice Decisions
were dissolved and thus ceased to exist as legal
entities or juristic
persons; (b) that being so, and as already set out in para 5 above,
the institution of the proceedings on
20 October 2010 (to set aside
the provisional winding-up order) and during March 2011 (for payment
of further sums of moneys, later
amended to compel production of
certain documents and delivery of further information) occurred when
Awake Solutions was non-existent;
and, consequently, (c) the orders
subsequently granted were a nullity and of no force and effect. In
addition, it was submitted
that all the payments made to the
attorneys of Awake Solutions and to Choice Decisions were made under
the
bona fide
and reasonable belief that Awake Solutions was lawfully entitled to
such payments when in fact there was no legal basis for Fintech
to
have made the payments, because Awake Solutions, as a deregistered
entity, lacked any right or title to receive payments in
terms of the
co-operation agreement. It is for this reason that the order for
payment of the sum of R1 764 641,34 is
sought against Awake
Solutions, alternatively against Awake Solutions, Walker and Choice
Decisions jointly and severally, the one
paying the other to be
absolved, with
mora
interest and costs as against Walker on the scale as between attorney
and own client.
[9]
The court below stated in its judgment that it was common cause that
the re-instatement of Awake Solutions was effected under
the Act. As
to the meaning of the expressions ‘re-instatement of
registration’ and ‘cancellation of the deregistration
process’ the court said:
‘
The
question arising is whether there is any difference in meaning
between the two concepts. In my view there is this difference:
the
cancellation of the process connotes an elimination of the entire
process, including the initial deregistration, as if it had
never
occurred, whereas re-instatement implies putting it back in its
former position, prior to deregistration. On this construction
I am
driven to conclude that by the cancellation of the deregistration
process Awake, at all times, remained a corporate entity
which of
course decides the fate of the application
.’
In
the event that this conclusion was wrong the court proceeded to
decide the issue ‘on the assumption that Awake [Solutions]
was
re-instated as provided for in the [Act]’. Having made the
observation that there is a practical need for the Act ‘to
provide for the retrospective consequences of a re-instatement of a
deregistered company’, which the previous Act did, the
court
said:
‘
I
can see no reason why the court should not be able to exercise its
inherent jurisdiction, in view of the absence of enabling statutory
provision under the [Act], on application or otherwise, to validate
anything done by or against the affected company, between
deregistration and its re-instatement and to make such order it
considers appropriate
.’ (Footnote
omitted.)
The
court dismissed Fintech’s application with costs and, despite
the absence of an application by Awake Solutions for any
declaratory
relief, it made an order declaring that ‘all acts done by or
against Awake Solutions (Pty) Ltd from the date
of its
de-registration until the date of its re-instatement were validly
done and that those acts are of full force and effect’.
[10]
Relying on the definition of the term ‘company’ in s 1 of
the Act counsel for Fintech submitted that because Awake
Solutions
had been deregistered and thus ceased to exist by the time the Act
came into operation, it had to be re-registered in
terms of the Act
in order to have its legal status as a juristic person restored.
[4]
Counsel accordingly argued that the finding of the court in
Peninsula
Eye Clinic (Pty) Ltd v Newlands Surgical Clinic (Pty) Ltd &
others
[2012]
3 All SA 183
(WCC) para 21 that the word ‘re-registered’
used in paragraph (
c
)
of the definition of ‘company’ relates to the
‘reinstatement of registration’ by the CIPC
provided
for in terms of s 82(4) of the Act, cannot be correct,
regard being had to the meaning of the words ‘re-registration’
and ‘re-instatement’ in the context in which they appear
in the Act. The words, according to counsel, should be interpreted
to
connote two different processes. In the view I take of the matter, it
is not necessary to consider this issue any further.
[11]
I have mentioned above that Awake Solutions was provisionally
liquidated by order of the South Gauteng High Court on 4 April
2008,
returnable on 30 June 2008. The provisional order was obtained at the
instance of Norbain (SA) (Pty) Ltd (Norbain), a creditor,
on the
ground that Awake Solutions was unable to pay its debts (s 344(
f
)
of the previous Act, read with ss 345(1)(
c
)
and 345(2)). The deponents to the founding and answering affidavits
both testified to intensive, diligent investigations conducted
on
behalf of Fintech and Awake Solutions respectively, to establish
whether a final winding-up order was subsequently made. No
final
winding-up order could be found from the registrar’s office
because the relevant court file could not be located. According
to
Walker, the latest investigations conducted by his attorney, Mr
Kotzé, on 17 July 2012, ‘revealed, and in fact
confirm
that according to the Registrar’s records and computer records,
no final winding-up order has ever been granted against
Awake
[Solutions]’. And he never received any confirmation that a
final winding-up order had been granted.
[12]
In his investigations Fintech’s attorney, Mr Bekker, eventually
made contact with a Mr Dos Passos, the attorney who acted
on behalf
of Norbain in the liquidation proceedings against Awake Solutions,
who assured him that a final winding-up order had
been granted
against Awake Solutions on 1 July 2008. A copy of an e-mail from Dos
Passos to Bekker dated 12 March 2012 is annexed
to the founding
affidavit. It reads:
‘
We
confirm that we do not have a copy of the final winding-up order as
the court file could not be located after the final winding-up
order
was granted.
The advocate who
moved the application was advocate Tiny Seboko who was then
practising out of Maisels Chambers.
The writer has not
briefed advocate Seboko since then as such we do not know whether the
aforementioned details of advocate Seboko
are correct now.
Please
note that the final winding-up order was granted on
1
July 2008
and not 30 June 2008. The
judge was Mokgoatlheng J
.
. . . .’
The
papers further include a telefax communication dated 3 July 2008 from
advocate Seboko to Dos Passos, confirming that a final
winding-up
order had been granted. In addition, annexed to the founding
affidavit is a copy of a report of the joint liquidators
(the fifth
and sixth respondents), which, according to its heading, was to be
submitted at a general meeting of creditors and contributories
of
Awake Solutions to be held before the Master of the High Court,
Johannesburg on 15 October 2009. It is recorded in paragraph
3 of the
report, which appears to have been signed by one of the liquidators,
the fifth respondent, that the first meeting of creditors
was held on
8 August 2008 and the provisional liquidators were appointed as the
final liquidators under Certificate of Appointment
dated 6 July 2009.
A copy of that certificate is also annexed to the founding affidavit.
[13]
The liquidators’ report just referred to above was sent to
Walker’s attorney by the fifth respondent by way of
facsimile
transmission under cover of a letter dated 13 September 2010. The
second paragraph of the letter reads:
‘
We
acknowledge receipt of your letter dated 2 September 2010 and have
noted the contents therein.
We
transmit herewith a copy of the Liquidators report in terms of
Section 402
of the
Companies Act and
advise that the First and Final
Liquidation and Contribution Account has been withdrawn pending the
application for the discharge
of the liquidation order.'
Walker’s
response in the answering affidavit to the allegations in the
founding affidavit relating to the communication between
Bekker and
Dos Passos, was that he was advised that the allegations constitute
hearsay and were inadmissible and denied that a
final winding-up
order was granted. But Bekker deposed to a confirmatory affidavit,
and confirmed as true and correct the contents
of the founding
affidavit insofar as it relates to him. He specifically confirmed the
correctness of the allegations relating to
his conversation with Dos
Passos, which includes the assurance given to him by Dos Passos that
a final winding-up order had been
granted against Awake Solutions.
What is puzzling about these enquiries is that none of the parties,
or their legal representatives,
thought of approaching the judge, who
presided in court on the return day and who could easily have
referred to his notes, to establish
what actually occurred on that
day.
[14]
Although it was strongly mooted in the founding affidavit that a
final winding-up order had been granted against Awake Solutions,
in
this court counsel for Fintech urged us to find that no final order
was made. The court below did not consider the issue fully,
but
merely accepted that the provisional order of winding-up had lapsed
‘in the absence of reliable evidence whether it was
confirmed’.
In my view, the probabilities clearly point to the fact that a final
winding-up order was indeed granted. First,
there appears to be no
reason why Norbain would have abandoned the liquidation proceedings
it had instituted against Awake Solutions.
A settlement between it
and Walker, on behalf of himself and Awake Solutions – he was
sued by Norbain in his capacity as
surety for Awake Solutions’
indebtedness to Norbain – was reached only during 2009, in
terms of which Walker purchased
Norbain’s claim against Awake
Solutions. There is also no suggestion that the provisional
winding-up order granted on 4 April
2008 was discharged or that it
lapsed, which it would have if not extended on the return day.
Second, it is clear from the copy
of the facsimile letter from the
fifth respondent addressed to Walker’s attorney, dated 13
September 2010 and covering the
joint liquidators’ report
referred to above, the contents of which were not challenged, that a
first and final liquidation
and contribution account had been
prepared by the joint liquidators. The preparation of a first and
final liquidation and contribution
account is a clear indication that
at least the joint liquidators believed that the provisional
winding-up order had been made
final. Indeed, in the first paragraph
of the report it is stated that Awake Solutions ‘was placed
under provisional winding
up on 4 April 2008 and the Order was made
final on 27 June 2008’. The second date is clearly wrong as the
return date was
30 June 2008. There is no suggestion that the return
date was anticipated.
[15]
Third,
s 364(1)
of the previous Act provides,
inter alia
, that
–
‘
As
soon as may be after a final winding-up order has been made by the
Court . . . , the Master shall summon –
(a)
a meeting of the creditors of the company
for the purpose of –
(i)
considering the statement as to the affairs
of the company lodged with the Master under s 363;
(ii)
the proof of claims against the company;
and
(iii)
nominating a person or persons for
appointment as liquidator or liquidators; and
(b)
. . . .
’
Section
402 of the previous Act imposes a duty on a liquidator to submit a
report to a general meeting of creditors and contributories
of the
company ‘not later than three months after the date of his
appointment’, except with the consent of the Master,
as to
certain matters. Among those matters are the amount of capital issued
by the company and the estimated amount of its assets
and liabilities
(s402(
a
));
if the company has failed, the cause of the failure (s402(
b
))
and the progress and prospects of the winding-up (s402(
h
))
.
The liquidators’ report sent to
Fintech’s attorney by the fifth respondent as referred to above
dealt with the matters
listed in s 402. Clearly, such report could
only have been prepared by the liquidators after their appointment,
which would have
occurred subsequent to the final winding-up order
having been made and once the processes envisaged in s 364(1) had
been followed.
Considering all these aspects, the probabilities are
in my view overwhelming that the provisional winding-up order issued
by the
South Gauteng High Court against Awake Solutions on 4 April
2008 was made final. And there is no reason to doubt the information
given to Bekker by Dos Passos, who acted for Norbain, to the effect
that the final winding-up order was granted on 1 July 2008.
I hold
accordingly.
[16]
It will be recalled that Awake Solutions was finally deregistered on
16 July 2010, more than two years after the final winding-up
order
was made. In
Miller
’s
case,
[5]
where one of the issues for consideration by this court was the
competence or otherwise of the deregistration of a company after
it
had been finally liquidated, Cloete JA, writing for the court, said:
‘
Serveco
was deregistered on 25 April 2008. The deregistration was effected by
an official in the Companies and Intellectual Property
Registration
Office (CIPRO), purporting to act in terms of
s 73
of the
Companies
Act and
on behalf of the Registrar of Companies. Deregistration was
incompetent inasmuch as Serveco had been wound up on 23 May 2006 –
a fact which was pointed out to the official in a letter before
Serveco was deregistered – and the consequence of a winding-up
is not deregistration, but a dissolution in terms of s 419 of the
Companies Act, ss (1) of which provides:
“
In
any winding-up, when the affairs of a company have been completely
wound up, the Master shall transmit to the Registrar a certificate
to
that effect and send a copy thereof to the liquidator.”
Deregistration,
on the other hand, puts an end to the existence of the company.’
[6]
Cloete
JA went further and observed that once there has been deregistration
‘there is obviously no purpose in a corporate
post-mortem, and
no one would have the authority to conduct one’.
[7]
[17]
The object of the provisions of the previous Act relating to
winding-up, which continue to apply in terms of Item 9 of Schedule
5
to the Act, is to ensure a due distribution of the company’s
assets among its creditors in the order of their preference.
[8]
The effect of a winding-up order is to establish a
concursus
creditorum
,
[9]
and ‘the 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’.
[10]
The company therefore remains in existence, albeit in liquidation,
until its affairs have been completely wound up (s 419(1) of
the
previous Act). It follows that the final deregistration of Awake
Solutions on 16 July 2010 was incompetent. The continued existence
of
Awake Solutions, in liquidation, resulting as it did from an order of
court, could not be trumped by the deregistration, which
was an
administrative act performed by an official in CIPRO. Whether or not
the official concerned was ignorant of the existence
of the final
winding-up order, ‘the inescapable conclusion must be that he
either failed to take account of material information
because it was
not all before him or if, in the unlikely event that it was before
him, that he wrongly left it out of the reckoning
when he should have
taken it into account’.
[11]
To that extent, the deregistration of Awake Solutions was unlawful
and invalid and susceptible to being set aside on review.
[12]
[18]
But the deregistration is now no more because the process of
deregistration has been cancelled and Awake Solutions’ name
has
been restored to the companies register. There is thus no
administrative act of deregistration that can be set aside.
Ordinarily,
the setting aside of the deregistration would have meant
that the
status
quo ante
would have been restored and there would have been no argument about
Awake Solutions having lost its corporate status at any stage.
It
could even have met Fintech’s application in the court below
with the defence that it never lost its corporate status
and by
raising a ‘defensive’ or ‘collateral’
challenge to the validity of the administrative act of its
deregistration.
[13]
And were the challenge to be successful, the only order that would
issue would be to declare the deregistration invalid. There
would be
no need for an order for the reinstatement or re-registration of
Awake Solutions. I accordingly find that at the time
relevant to this
case Awake Solutions was vested with corporate status and could
receive the payments made to it through its nominees.
This conclusion
renders it unnecessary for me to get into the debate as to whether
Walker had the authority to launch Awake Solutions’
application
against Fintech during March 2011 for payment of further moneys and
to compel Fintech to produce certain information
and to deliver
certain documents. What matters is that the moneys paid were due to
Awake Solutions and what happened to those moneys
is a matter between
its liquidators and Walker. The application for the setting aside of
the provisional winding-up order was clearly
incompetent since that
order had been made final. But that has no impact on the order I
propose to make.
[19]
In the result, the following order is made:
The
appeal is dismissed with costs, which shall include those of two
counsel where employed.
___________________
L
MPATI
PRESIDENT
APPEARANCES
For
appellant J H Dreyer (with him R Gründlingh)
Instructed
by: Jay Mothobi Inc, Johannesburg
E
G Cooper Majiedt Inc, Bloemfontein
For
Respondents E L Theron (with him W Davel)
Instructed
by: Hennie Kotze Attorneys, Randburg
Phatshoane Henney
Inc, Bloemfontein
[1]
Section
82(4) of the Act provides:
‘
If
the Commission deregisters a company as contemplated in subsection
(3), any interested person may apply in the prescribed manner
and
form to the Commission, to reinstate the registration of the
company.’
[2]
Miller
& others v Nafcoc Investment Holding Co Ltd & others
2010 (6) SA 390
(SCA) para 11.
[3]
Companies
Regulations, GNR 351,
GG
34239,
26 April 2011.
[4]
The
relevant part of the definition reads:
‘‘’
[C]ompany”
means a juristic person incorporated in terms of this Act . . . or a
juristic person that, immediately before
the effective date [being 1
May 2011] -
.
. .
(c
)
was deregistered in terms of the Companies Act, 1973 (Act No. 61 of
1973), and has subsequently been re-registered in terms
of this
Act.’
[5]
Above,
fn 2.
[6]
Para
11.
[7]
Miller
v Nafcoc Investment Holding Co Ltd,
above,
fn 2, para 11.
[8]
Walker
v Syfret NO
1911 AD 141
at 166.
[9]
Ibid,
at 166.
[10]
Ibid
at 160. See also
Nel
& others NNO v The Master & others
2002 (3) SA 354
(SCA) para 6.
[11]
Oudekraal
Estates (Pty) Ltd v City of Cape Town & others
2004 (6) SA 222
(SCA) para 25.
[12]
Compare
Oudekraal,
above paras 24, 25 and 26.
[13]
Oudekraal,
above para 32.