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[2024] ZAKZPHC 5
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K.R v Sealandair Shipping and Forwarding (Pty) Ltd and Others (13107/2022P) [2024] ZAKZPHC 5 (1 February 2024)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
and
SAFLII
Policy
IN
THE HIGH COURT OF SOUTH AFRICA
KWAZULU-NATAL
DIVISION, PIETERMARITZBURG
CASE
NO: 13107/2022P
In
the matter between:
K[...]
R[...]
APPLICANT
and
SEALANDAIR
SHIPPING AND FORWARDING
(PTY)
LTD (IN LIQUIDATION
alternatively
IN
DEREGISTRATION)
1
ST
RESPONDENT
N[...]
M[...] NO
2
ND
RESPONDENT
ADRIAN
VENGADESAN NO
3
RD
RESPONDENT
MF
VALIE NO
4
TH
RESPONDENT
MASTER
OF THE HIGH COURT, PIETERMARITZBURG
5
TH
RESPONDENT
EUGENE
NEL NO
6
TH
RESPONDENT
REASONS
FOR ORDER
E
Bezuidenhout J
Introduction
[1]
This matter came before me as an opposed matter on 9 October 2023. It
was set down
at the instance of the sixth respondent. The sixth
respondent is the only respondent who actively took part in the
proceedings.
The notice of set down was served on the attorney of
record for the applicant on 17 March 2023. The applicant failed to
deliver
a practice note and heads of argument. Her erstwhile
attorneys, Naidoo Maharaj Inc withdrew on 20 July 2023 as her
attorneys of
record. On the day of the hearing, counsel, who had been
instructed by the applicant’s new attorneys, Mastross Naidoo
Ori
Inc appeared and applied for an adjournment, which was contained
in a substantive application, issued and served on 6 October 2023.
[2]
Counsel appearing on behalf of the sixth respondent, who had complied
with all the
practice directives by filing a practice note and heads
of argument, indicated that the sixth respondent opposed the
application.
After hearing argument, I dismissed the application for
an adjournment with costs and gave a brief judgment setting out my
reasons.
[3]
Counsel for the applicant had no instructions to argue the opposed
motion and, in
fact, had not even been provided with a set of the
application papers. He requested to be excused, which request I
granted. Counsel
for the sixth respondent addressed me briefly, as he
had submitted detailed heads of argument. I also indicated to him
that I did
not require him to argue the matter fully as I was
satisfied on the papers that the applicant had failed to make out a
case for
the relief sought. I indicated that I would make the
relevant order and that I would provide reasons should I be requested
to do
so. I made the following order:
‘
1.
The Application under case no. 13107/2022P is dismissed with costs on
the attorney and client scale.
2.
The costs referred to in paragraph 1 hereof shall include the costs
of intervention and opposing the application under case no.
7719/2022P on the attorney and client scale.’
[4]
On 12 October 2023, the applicant, now represented by Raneshan Naidoo
and Associates,
filed a notice in terms of Uniform rule 49(1),
requesting reasons and also filed a notice of application for leave
to appeal. It
contained seven grounds of appeal. Needless to say, the
notice of appeal was filed without the applicant having had sight of
my
reasons for the order I made. On 14 December 2023, the applicant’s
attorney filed a notice of withdrawal as the applicant’s
attorney of record. These are the reasons for the order I granted
under case no 13107/2022P on 9 October 2023.
Background
[5]
There were three applications before me, namely:
(a)
An application, issued on 28 September 2022 under case no
13107/2022P, in terms of which
the applicant seeks the following
relief (the review application): firstly, to review and set aside the
fifth respondent’s,
the Master of the High Court’s,
confirmation of the liquidation and distribution account in the
estate of the first respondent,
Sealandair Shipping and Forwarding
(Pty) Ltd (in liquidation alternatively deregistration) on 7 June
2022; secondly, the re-opening
of the account; and thirdly, a
direction that the second to fifth respondents convene a special
meeting of creditors for the purposes
of proving a claim by the
applicant. The second to fourth respondents are the liquidators of
the first respondent.
(b)
An application, issued on 17 June 2022 under case no 7719/2022P, in
terms of which the applicant
sought to interdict the second to fourth
respondents from making any payments and finalising the estate of the
first respondent,
pending the outcome of the review application which
was to be instituted within 20 days of the confirmation of the rule
(the interdict
application). The matter was set down as an urgent
application on 21 June 2022. No relief was granted on that day and
the application
was simply adjourned
sine die
. The second to
fourth respondents, however, gave an undertaking that they would not
make any distributions pending the finalisation
of the review
application.
(c)
An application for leave to intervene in the interdict application
(the intervention
application). The application was brought by Mr E
Nel NO, in his capacity as the trustee of the insolvent estate of Mr
V KJ R[...]
(the insolvent), the husband of the applicant, who was
finally sequestrated on 8 December 1999. The applicant opposed the
intervention
application and filed an answering affidavit to which Mr
Nel replied. The applicant subsequently cited Mr Nel as the sixth
respondent
in the review application.
Only
the review application will be dealt with in these reasons, as the
two other applications have in essence become moot.
[6]
The sixth respondent set out, in his answering affidavit, a detailed
timeline of the
sequence of events, stretching over almost 27 years,
which he prepared taking the applicant’s version into account
and which
was also repeated in the chronology filed as part of the
practice note and from which I will borrow extensively. Bearing in
mind
that the papers are to be determined on the sixth respondent’s
version in terms of the
Plascon-Evans
rule,
[1]
I will concentrate my efforts on what is set out by the sixth
respondent and will only highlight some issues disputed by the
applicant
in reply.
[7]
In 1997, the applicant allegedly lent her husband (the insolvent) the
sum of just
over R3 million, who then on-lent it to the first
respondent, which meant that the insolvent in effect became a
creditor in the
books of the first respondent.
[8]
On 30 June 1997, the first respondent allegedly ‘ceded’
to the insolvent
a property described as the remaining extent of
Portion 10 (a portion of Portion 1) of the Farm Doornfontein 92,
Registration Division
IR, Province of Gauteng (the Doornfontein
property), allegedly to secure the alleged indebtedness owing to the
insolvent in the
sum of R3 million. The applicant states that the
sixth respondent implies that it was a simulated transaction, which
she denies.
[9]
On 1 July 1997, the insolvent purported to cede his loan account in
the first respondent,
together with the Doornfontein property, to the
applicant
as security for the debt owing by
him to her for monies lent and advanced.
[10]
On 24 February 1998, the first respondent was provisionally
liquidated and Mr GB Perry and Mr
MW Lynn were appointed as joint
liquidators. On 24 July 1998, the insolvent’s estate was
provisionally sequestrated and finally
sequestrated on 14 April 1999.
On 8 December 1999, the applicant and the insolvent divorced. During
May 2003, the second and final
liquidation and distribution account
was filed in respect of the insolvent’s estate. The applicant
pointed out that her claim
against the first respondent, which had
been ceded to her by the insolvent, was for that reason not accounted
for in the insolvent’s
estate.
[11]
On 15 May 2001, the first liquidation and distribution account in
respect of the first respondent
was signed by the liquidators. In it,
reference was made to the Doornfontein property, which, according to
the applicant, had been
ceded to her by the insolvent prior to his
sequestration. During November 2003, the second and final liquidation
and distribution
account in respect of the first respondent was
signed by the liquidators. No reference was, however, made to the
Doornfontein property.
[12]
The sixth respondent stated that on 29 August 2013, Mr Perry
acknowledged in writing a claim
by the insolvent, accepting him as a
creditor of the estate of the first respondent, and confirmed that it
had not yet been proved.
The applicant stated in her founding
affidavit that the claim of R4 222 534, referred to by Mr Perry as
the insolvent’s claim,
was in fact her claim and that he had
accepted that there was a creditor, but had identified the wrong
party. She and the insolvent
had by this time reconciled and were
dealing with Mr Perry jointly. The letter relied upon by the
applicant was only addressed
to the insolvent and made no reference
to the applicant. It was attached as annexure ‘M’.
[13]
The applicant stated that in 2014, she contacted Mr Perry and offered
to purchase the Doornfontein
property (despite claiming earlier that
the property was ceded to her). In a letter dated 4 March 2014, Mr
Perry informed the insolvent
and the applicant that he had received
an unconditional cash offer which was double their offer. In her
replying affidavit, the
applicant now stated that it was in fact the
insolvent who made the offer in 2013 to purchase the property and not
her. She also
stated that at that time, the insolvent was
rehabilitated in terms of section 127A of the Insolvency Act 34 of
1936 (the
Insolvency Act). On
28 March 2014, the insolvent and the
applicant were informed by Mr Perry that the Doornfontein property
would be sold on public
auction.
[14]
Things appeared to have gone quiet for many years and then on 28
March 2022, the joint liquidators
gave notice in terms of section 406
of the Companies Act 61 of 1973 (the Companies Act) that the amended
second and final liquidation
and distribution account in respect of
the first respondent would lie for inspection at the Master’s
office for 21 days from
8 to 29 April 2022. It came to the
applicant’s notice during March or April 2022. The Doornfontein
property was now included
and was dealt with in the amended account.
On 8 April 2022, the applicant, through her attorneys, addressed a
letter to the joint
liquidators objecting to the account. Mention was
made of a contention by the liquidators that the applicant’s
claim had
become prescribed, which was regarded by the applicant as
meaning that the applicant was inherently recognised as a creditor.
On
the same day, the applicant’s attorney lodged an objection
to the account with the Master in terms of section 407 of the
Companies Act,
[2]
stating
inter
alia
that Mr Perry, who was no longer a liquidator, had acknowledged and
confirmed in his letter of 29 August 2013 that the applicant
was a
creditor of the estate in the amount of R 4.22 million (which is
factually incorrect), which claim has not yet been proved
by the
Master. The Master was given until 19 April 2022 to respond to the
objection.
[15]
On 13 April 2022, the Master called upon the liquidators to respond
to the objection, copying
the applicant’s attorneys. On 26
April 2022, the sixth respondent addressed a letter to the Master
dealing with the objection
to the account. He
inter alia
set
out the background of the matter, which included the fact that the
insolvent had admitted his claim against the first respondent
and
that it had been accepted by Mr Perry and had subsequently been set
out in an affidavit by the insolvent’s estate. The
applicant
simply stated in her replying affidavit, in response to these
allegations, that the Master was confused, and referred
to the sixth
respondent as the liquidator of the first respondent, which he was
not. On 19 May 2022, the applicant’s attorneys
addressed a
letter to the Master enquiring about the liquidators’ response
to the objection and called for the Master to
convene a special
meeting of creditors for the applicant to prove her claim. On the
same day, the Master forwarded a copy of the
sixth respondent’s
response to the objection to the applicant’s attorneys,
requesting them to comment within 14 days.
[16]
On 2 June 2022, the period to comment on the response to the
objection expired. The applicant
stated that the Master’s email
had ‘crossed’ her attorney’s email of 19 May 2022
and that they had mistakenly
believed that they had responded. This
was, however, not the case, as they had not addressed the contents of
the sixth respondent’s
letter. Her attorney only realised the
oversight on 9 June 2022.
[17]
Meanwhile, on 7 June 2022, the Master confirmed the account. On 9
June 2022, the applicant’s
attorneys responded to the Master in
relation to the sixth respondent’s response of 26 April 2022 to
the applicant’s
objection. In the letter, it was stated that
the writer ‘was unable to obtain instructions within the time
frame provided’.
No mention is made of crossed emails. It also
again refers to a ‘clear and unequivocal acceptance’ of
the applicant’s
claim by Mr Perry on 29 August 2013, which as I
have pointed out above, is simply incorrect. On 14 June 2022, the
Master responded
by advising that the account had been already been
confirmed on 7 June 2022.
[18]
On 17 June 2022, the applicant brought the interdict application, and
subsequently on 28 September
2022, some three months later,
instituted the review proceedings. The applicant alleged that the
Master, in its report filed in
the interdict application, stated that
it had dealt with the objection in terms of the Promotion of
Administrative Justice Act
3 of 2000 (PAJA) but that the Master had
failed to give her adequate opportunity to respond to the sixth
respondent’s letter.
It is unclear whether the applicant is in
fact suggesting that the time periods referred to in PAJA were
applicable to the time
she was given to respond by the Master. She
also stated that the account was confirmed prior to the expiration of
the time period
she was given to respond. This is clearly incorrect
as she was afforded 14 days from 19 May 2022, which expired, as
mentioned above,
on 2 June 2022. I will deal with this further below.
The account was confirmed by the Master on 7 June 2022. Not much was
said
about the applicant’s failure to institute her review
application within 14 days as required in terms of section 407(4)
(a)
of the Companies Act.
[3]
The
applicant did not address this delay and did not apply for
condonation for the late filing of her review. The point was not
raised by the sixth respondent and it is assumed that he simply
wanted the review to be heard and finalized. The applicant’s
grounds of review in summary therefore appear to be directed only at
the Master’s failure to give her sufficient time to
respond; at
the Master’s confirmation of the account before her time to
respond had expired; and at the Master’s failure
to deal with
her attorney’s request to convene a meeting to prove her claim.
The sixth respondent’s
contentions
[19]
It was submitted that the applicant has never, in 25 years, proved a
claim in the first respondent’s
insolvent estate, nor has she
taken any steps to enforce her rights. The applicant asserted that,
on 29 August 2013, the first
respondent’s liquidator, Mr Perry,
acknowledged her claim. It was submitted that annexure ‘M’
is unequivocal
in that it acknowledges the insolvent’s claim,
in possession of the liquidator, in the sum of R4.22 million, which
had not
been proved before the Master. The sixth respondent stated
that on 21 September 2015, the insolvent, notwithstanding the fact
that
his estate had been finally sequestrated, lodged a claim for
R4.22 million in the first respondent’s insolvent estate. This
was before the sixth respondent’s appointment as trustee in the
insolvent’s estate in December 2015. The applicant’s
case
in reply in this regard is that this claim is a nullity as the
affidavit was deposed to by the insolvent in 2015, and that
the
insolvent had no right to prove a claim by virtue of the provisions
of
sections 20
and
23
of the
Insolvency Act. As
mentioned above, the
applicant, however, contended that the insolvent had been
rehabilitated in 2013 through the effluxion of time.
[4]
It does appear to me that the applicant, on more than one occasion,
made statements in her replying affidavit which were contradictory
to
what was stated in her founding papers, which is concerning. It was
submitted that
section 44
of the
Insolvency Act requires
no more than that the deponent to a claim is
to have personal knowledge of the facts on which the claim is based
and, as essentially
a witness, the fact that he is insolvent does not
nullify the affidavit.
[20]
As far as the applicant’s objection is concerned, it was
submitted that the sixth respondent
responded to the Master in detail
in respect of the objection, as trustee of the insolvent’s
estate and a proved creditor,
and further because the liquidators
were supine. It was apparent from his letter of 26 April 2022,
attached as annexure ‘T’
to the founding affidavit, that
the liquidator had in fact dealt with the objection. The sixth
respondent had recorded that the
liquidator correctly contended in
his response to the applicant’s attorney that the claim could
not be amended to reflect
the applicant’s claim ‘as her
claim would have become prescribed’.
[21]
It was also submitted that the sixth respondent’s letter was
transmitted by the Master
to the applicant’s attorneys on 19
May 2022, who were requested to comment within 14 days. The 14-day
period expired on 2
June 2022 in terms of section 4 of the
Interpretation Act 33 of 1957 and not on 8 June 2022, a point taken
in the intervention
application. I agree with this submission. The
applicant’s reply was not only late but she appears to not be
entirely forthcoming
about the reason for the delay in responding.
[22]
As far as the applicant’s reference to PAJA and the time
periods for filing the review
was concerned, it was submitted that
the longer periods provided for in PAJA did not apply. I was referred
to
Rustenburg
Platinum Mines Ltd v CCMA
[5]
where it was held that the extended time periods in PAJA find no
application where the legislature has elected to stipulate a time
period for the bringing of the application, as it has done in section
407(4)
(a)
of the Companies Act.
The
Master’s report
[23]
The Assistant Master, in her report, confirmed that she sent the
applicant’s objection
to the second, third and fourth
respondents and that they had duly responded to the objection. She
then forwarded their response
to the applicant’s attorney, who
did not respond. She emphasised that she has a statutory duty to act
in the best interests
of the general body of creditors and that
proved creditors are being prejudiced by the delay, especially since
the first respondent
had been placed in liquidation almost 24 years
ago. Proved creditors have been waiting for more than two decades to
receive dividends.
It appeared that the applicant was not a proved
creditor. The Assistant Master stated that confirmation of the second
liquidation
and distribution account was in the best interests of the
proved creditors and that she at all times acted in good faith.
Discussion
and analysis
[24]
The applicant applies in terms of section 408 of the Companies Act
for the setting aside of the
confirmation of the account and for its
re-opening. Section 408(1)
(c)
reads as follows:
‘
408. Confirmation
of account.
—
When
an account has lain open for inspection as prescribed in section
406 and—
. .
.
(
c
)
an objection has been lodged but has been withdrawn or has not been
sustained and the
objector has not applied to the Court within the
prescribed time,
the
Master shall confirm the account and his confirmation shall have the
effect of a final judgment, save as against such persons
as may be
permitted by the Court to re-open the account after such confirmation
but before the liquidator commences with the distribution.’
[25]
It was submitted on behalf of the sixth respondent that the
application under the aforesaid section
is an application sui
generis, as is the application under section 407(4)
(a)
of the Companies Act. ‘
It
is not a review, and not even an appeal in the wide sense,
limited to the facts which had been before the Master.
It
is indeed … a fresh application where new facts and in
appropriate cases also oral evidence will be allowed.’
[6]
[26]
The requirements for an application of this nature have been stated
in
Wispeco
(Pty) Ltd v Herrigel NO
[7]
as follows:
‘
The
Act obviously contemplates that, unless a dividend has been paid to
one or more creditors, an account can be reopened after confirmation
by the Master. An application must, however, be specifically made to
have the confirmation set aside and the account reopened for
I think
it has now been accepted that the Master's confirmation is both final
and has the same effect as a judgment of the Court
(see s
112;
Central Africa
Building Society v Pierce NO
1969
(1) SA 445
(RA) at 455H;
Rulten
NO v Herald Industries (Pty) Ltd
1982
(3) SA 600
(D) at 604F). The Act does not indicate the grounds
upon which such a reopening can take place and one must therefore
have
regard to those grounds that would justify the setting aside of
a judgment of the Court. The Courts have accordingly looked to the
common law for guidance, according to which it is necessary, in order
to succeed in an application for reopening, to establish
the
existence of one of those grounds upon which
restitutio
in integrum
would be granted (see
Mars
Law of Insolvency in South
Africa
7th ed at 407;
Stewart's
Assignee v Wall's Trustee (supra
at
246);
Ex parte Wagner
1925
TPD 401
;
Desai v Assignee, Estate
Desai NO
1935 CPD 503
at 513;
SA
Clay Industries Ltd v Katzenellenbogen NO and Another
1957
(1) SA 220
(W) at 223 - 224). Such grounds would include fraud.
Fraud, if established, is, of course a good ground for setting aside
a judgment or reopening an account. There is no suggestion in this
matter that there has been any fraud on the part of the trustee.
The
only other ground would be
justus
error. Mars (op cit
at 407) says
this:
"Thus, error not
caused by negligence, or just and probable, but not culpable,
ignorance of a person's rights is such a ground,
and consequently
under certain circumstances a creditor might obtain relief against a
confirmed account on establishing his ignorance
that it was lying for
inspection, but the
onus
would be on him to show
that his ignorance was justifiable, because it is the duty of a
proved creditor to keep his eyes and
ears open to inquire as to the
fate of his proof, and
prima facie
his ignorance in
the matter must be imputed to his own negligence."
In the
SA Clay
Industries Ltd
case
supra
at 224 KUPER J
stated:
"After confirmation
and before the payment of a dividend the aggrieved person must show
something more than ignorance and prejudice:
he must show that his
failure to object has been induced by
justus error
or
by fraud... I have therefore come to the conclusion that in
order to succeed the applicant must establish a ground
for
restitutio
in integrum
".
The
onus
furthermore
is on the applicant for the reopening of an account to establish one
of
the grounds
for
restitutio
in integrum
(see
SA
Clay Industries Ltd
case
supra
at
224H;
Mars
(op cit
at
407))
It
seems to me, however, that such an applicant bears a further onus:
he would have to show the Court that there is merit in
the reopening
of the account. A Court will not reopen an account if it cannot be
shown that the applicant has some prospect of
success of having the
account varied or corrected (see
Desai v Assignee, Estate
Desai NO (supra
at 513)). No purpose would obviously be
served in merely reopening the account if it is likely to remain
in the same
form as originally drawn. The applicant must establish at
least
prima facie
that the account is incorrect and
would have to be amended.
Has
the applicant in the present instance discharged the
onus
of
establishing that good purpose would be served in reopening the
account?’
[27]
Counsel for the sixth respondent, Mr Van Rooyen, summarised the
requirements succinctly as follows:
[8]
(a)
an application must specifically be made to have the confirmation of
the account set aside
and re-opened, as it is accepted that the
Master’s confirmation is both final and has the same effect as
a judgment of the
court;
(b)
in order to succeed in an application for re-opening, the applicant
must establish the existence
of one of the grounds upon which
restitutio in integrum
would be granted. Such grounds would
include fraud and
justus error
;
(c)
the onus is on the applicant who seeks the re-opening of an account
to establish one
of the grounds for
restitutio in integrum
;
(d)
the applicant bears a further onus: she would have to show the court
that there is merit
in the re-opening of the account, as a court will
not re-open an account if it cannot be shown that the applicant has
some prospect
of success of having the account varied or corrected.
The applicant must establish, at least on a prima facie basis, that
the account
is incorrect and would have to be amended.
[28]
It is in my view clear that there is no merit in re-opening the
account and the applicant has
furthermore not succeeded in satisfying
any of the requirements set out above, in particular, she has failed
to show that she has
any prospects in succeeding to prove a claim,
which prima facie appears to have prescribed. The applicant stated
that the high
court was not the forum to deal with the merits of her
claim and that it should be dealt with at the meeting of creditors.
This
statement is obviously wrong. It is clear from the
correspondence put up by the applicant that no mention was ever made
of a claim
by her. Mr Perry’s letter cannot be clearer. He
referred to the insolvent’s claim, which is the only ‘live’
claim and which the sixth respondent is seeing through. The
applicant’s blatant disregard for the interests of the proven
creditors is, to say the least, disconcerting.
[29]
It was also submitted that the Master is the official entrusted with
the administration of all
insolvent estates and that its rulings
deserve some deference. Reliance was placed on
Van
Zyl NO v The Master
[9]
where it was held that ‘where no new facts have been placed
before the Court, the Court should hesitate to substitute its
own
opinion for that of the Master…’. In my view, the Master
acted in good faith and clearly acted correctly and in
the interests
of the proven creditors. There is furthermore, in my view, no prima
facie evidence that the account is incorrect
and that it should be
amended.
[30]
It was further submitted, with reference to
SA
Clay Industries Ltd v Katzenellenbogen NO
,
[10]
‘that where an applicant has been negligent his error cannot
be
justus
’.
I have referred above to the alleged reasons for the applicant’s
failure to respond to the Master timeously: the
initial version being
the apparent negligence for failing to respond to a ‘crossed’
email; the next version then became
a scheduling issue. Whatever
really happened, it clearly cannot be found to be
justus
error
.
Even if her attorney had responded timeously, the applicant’s
version of her alleged claim would in all likelihood have
been
rejected, quite correctly by all indications, by the Master and the
account would still have been confirmed.
[31]
As far as costs are concerned, it was submitted that the application
is an abuse of process and
so tainted with turpitude that it
justified a denial of relief and a punitive cost order. I am of the
view that the sixth respondent,
who acts in the interests of the
insolvent’s estate, and who had to step in, clearly due to the
supine attitude of the liquidators,
should not be left out of pocket.
It is for this reason that I exercised my discretion in respect of
the issue of costs.
[32]
It is for these reasons that I made the order referred to above.
E
BEZUIDENHOUT J
Date
of hearing:
9 October 2023
Date
of order:
9 October 2023
Date
of reasons:
1 February 2024
The
reasons were handed down electronically by circulation to the
parties’ representatives by email and released to SAFLII.
The
date and time for hand down is deemed to be 12h00 on 1 February 2024.
Appearances:
For
the sixth respondent:
R van
Rooyen
Instructed
by:
Messrs
Oliver Attorneys
23
Waverleydale Road
Boughton
Pietermaritzburg
Ref:1R0008
Email:ian@oliverlaw.co.za
[1]
Plascon-Evans
Paints Ltd v Van Riebeeck Paints (Pty) Ltd
1984 (3) SA 623 (A).
[2]
Section
407(1) and (2) reads as follows:
‘
(1)
Any person having an interest in the company being wound up may, at
any time before the confirmation of an account, lodge
with the
Master an objection to such account stating the reasons for the
objection.
(2) If the Master is of
the opinion that such objection ought to be sustained, he shall
direct the liquidator to amend the account…’
[3]
Section
407(4)
(a)
reads as follows:
‘
The
liquidator or any person aggrieved by any direction of the Master
under this section, or by the refusal of the Master to sustain
an
objection lodged thereunder, may within fourteen days after the date
of the Master’s direction and after notice to the
liquidator
apply to the Court for an order setting aside the Master’s
decision, and the Court may on any such application
confirm the
account in question or make such order as it thinks fit.’
[4]
Section
127A
of the
Insolvency Act provides
for the automatic rehabilitation
of an insolvent’s estate after a period of 10 years from the
date of the sequestration
of his estate.
[5]
Rustenburg
Platinum Mines Ltd (Rustenburg Section) v Commission for
Conciliation, Mediation and Arbitration
[2006] ZASCA 175
;
2007 (1) SA 576
(SCA) para 27. See also P Delport
Henochsberg
on the
Companies Act 71 of 2008
(November
2023, SI 33)
at APPI-232(1) (‘
Henochsberg
’)
where it is stated that the longer period for a review in PAJA does
not apply.
[6]
South
African Bank of Athens Ltd v Sfier (also known as Joseph) and others
1991
(3) SA 534
(T) at 536H-I.
[7]
Wispeco
(Pty) Ltd v Herrigel NO and another
1983 (2) SA 20
(C) At 27D-28C.
[8]
See
also
Henochsberg
at
APPI-234(1) to APPI-234(2).
[9]
Van Zyl
NO v The Master
2000 (3) SA 602 (C).
[10]
SA Clay
Industries Ltd v Katzenellenbogen, NO and another
1957
(1) SA 220
(W) at 225A.