THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Not Reportable
Case no: 1334/2022
In the matter between:
CENTAUR MINING SOUTH AFRICA (PTY) LTD APPELLANT
and
CLOETE MURRAY N O FIRST RESPONDENT
SIVALUTCHMEE MOODLIAR N O SECOND RESPONDENT
NDUMISO SENZOSENKOSI SIBIYA N O THIRD RESPONDENT
[In their capacities as the duly appointed joint provisional
liquidators of Trillian Management Consulting (Pty) Ltd]
TRILLIAN CAPITAL PARTNERS (PTY) LTD FOURTH RESPONDENT
TRILLIAN SECURITIES (PTY) LTD FIFTH RESPONDENT
TRILLIAN NOMINEES (PTY) LTD SIXTH RESPONDENT
TRILLIAN SHARED SERVICES (PTY) LTD SEVENTH RESPONDENT
TRILLIAN PROPERTY (PTY) LTD EIGHTH RESPONDENT
TRILLIAN FINANCIAL ADVISORY (PTY) LTD NINTH RESPONDENT
ZARA W (PTY) LTD TENTH RESPONDENT
MASTER OF THE HIGH COURT, PRETORIA ELEVENTH RESPONDENT
COMPANIES AND INTELLECTUAL PROPERTY
COMMISSION TWELFTH RESPONDENT
Neutral citation: Centaur Mining South Africa (Pty) Ltd v Cloete Murray N O and
Others (Case no 1334/2022) [2024] ZASCA 34 (28 March 2024)
2
Coram: PONNAN, SCHIPPERS, MEYER AND MATOJANE JJA AND COPPIN
AJA
Heard: 12 March 2024
Delivered: 28 March 2024
Summary: Rescission in terms of rule 42(1) (a) of the Uniform Rules of Court of
default judgment granted under s 20(9) of the Companies Act 71 of 2008 – no proper
case made out.
3
ORDER
On appeal from: Gauteng Division of the High C ourt, Johannesburg (Wepener J,
sitting as court of first instance):
The appeal is dismissed with costs, including those of two counsel.
JUDGMENT
Meyer JA (Ponnan, Schippers and Matojane JJA and Coppin AJA concurring):
[1] The appellant, Centaur Mining South Africa (Pty) Ltd (CMSA), appeals against
a judgment of the Gauteng Division of the High Court, Johannesburg, per Wepener J
(the high court), dismissing an application for the setting aside or rescission of a
judgment under s 354 of the Companies Act 61 of 1973 (the 1973 Companies Act ),
alternatively r 42(1)(a) of the Uniform Rules of Court or the common law (the rescission
application). The appeal is with leave of the high court.
[2] The Trillian group of companies include the first to tenth respondents: Trillian
Capital Partners (Pty) Ltd (TCP), Trillian Management Consulting Pty Ltd (TMC),
Trillian Securities (Pty) Ltd (TS), Trillian Property (Pty) Ltd (TP), Trillian Nominees (Pty)
Ltd (TN), Trillian Financial Advisory (Pty) Ltd (TFA), and Trillian Shared Services (Pty)
Ltd (TSS). TCP owns 100 per cent of the shareholding in TCP, TMC, TS, TP, TN, TFA,
and TSS. Zara W (Pty) Ltd (Zara) owns 100 per cent of the shareholding in TCP. The
Trillian group of companies was establis hed pursuant to a failed bid by the Gupta
family (associated with the so -called state government officials and entities) in 2014
to acquire the Regiments group of companies.1 Mr Eric Anthony Wood (Mr Wood) was
the former chief executive officer of Regiments (Pty) Ltd (Regiments). It was a ‘fund
manager’ and ‘strategy advisor’ specializing in public sector infrastructure programs
1 The Regiments group of companies are made up of Regiments (Pty) Ltd, Regiments Fund Managers
(Pty) Ltd, Regiments Securities (Pty) Ltd, Little River Trading 191 (Pty) Ltd, Ashbrook 15 (Pty) Ltd (with
a 59.82% ownership share therein), Coral Lagoon (Pty) Ltd (a wholly owned subsidiary of Asbrooke 15
(Pty) Ltd), Kgoro Consortium (Pty) Ltd and Cedar Park Properties 39 (Pty) Ltd.
4
and projects, supposedly rendering services to state owned entities (SOE’s), such as
Transnet SOC Ltd (Transnet) and Es kom SOC Ltd (Eskom). Mr Wood was the sole
director of TMC prior to its liquidation and also the controlling mind of TMC and certain
other entities within the Trillian group of companies. TCP and TMC are financial
advisory companies, who conducted similar business to Regiments.
[3] During January 2020 the South African Revenue Services (SARS) formed the
view that Mr Wood was treating the Trillian group of companies under his control as a
mere extension of himself. He was at all relevant times responsible for the financial
affairs of the companies but either failed to submit tax returns when due, or submitted
returns that contained incorrect declarations. It appeared to SARS that the preferred
modus operandi of Mr Wood was to funnel funds through the various Trillian
companies, thereby creating many layers between the original source of income and
the final destination of the funds. Mr Wood, according to SARS ’s investigation, would
receive SOE funds in the hands of a Trillian company and the funds would
subsequently be channeled to various other entities through the creation of what
appears to have been fictitious invoices purportedly issued by another Trillian
company which to all intents and purposes was not trading or conducting any form of
business. The fictitious invoices were intended to fraudulently misrepresent a
legitimate causa to extract funds out of a Trillian company and ultimately to funnel the
funds into the hands of the ultimate beneficiaries.
[4] Following an investigation, SARS issued letters of audit findings to TMC. The
letters of audit findings were based on a comparative analysis of source documents
submitted to SARS by TMC, as well as its bank statements, VAT schedules, invoices,
draft annual financial statements, trial balances , general ledgers and other financial
documentation of certain Trillian companies. SARS determined that:
documentation of certain Trillian companies. SARS determined that:
(a) TMC received approximately R595 million on 28 February 2007 from Es kom,
which it failed to declare for tax purposes;
(b) The funds so received by TMC from Es kom were distributed to companies
which were reasonably expected not to have been legitimate businesses;
(c) TMC received interest from the Bank of Baroda which it unlawfully failed to
declare for tax purposes;
(d) TMC was indebted to SARS, at that stage, in an amount of R460 970 690.87.
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[5] In light of the seriousness of the allegations levelled against Mr Wood and
some of the Trillian companies under his control, SARS brought a preservation
application as contemplated by s 163 of the Tax Administration Act 28 of 2011 . The
application was successful, and Mr Cloete Murray (Mr Murray) was appointed as the
curator in terms of the order.
[6] In that capacity, Mr Murray instructed a chartered accountant and forensic
auditor, Mr Stephen Robinson (Mr Robinson), to investigate the affairs of TMC and
TCP. He issued Mr Murray with his first report on 23 February 2020. Therein, he
concluded that TMC received an amount of R595, 2 million from Eskom. It almost
immediately dispersed that amount to other Trillian associated or connected
companies, some of whom carried on no form of legitimate enterprise. TMC was not
managed as a self -standing enterprise, but as part of the greater Trillian group of
companies.
[7] In the light of those findings, Mr Murray instructed Mr Robinson to also
investigate the affairs of certain other Trillian companies and to furnish a report of his
findings. Mr Robinson issued his second report on 8 July 2020. The findings made by
Mr Robinson were inter alia based on a thorough and comparative analysis of
particularly, but not exclusively, the bank account statements of TMC, TP, TCP, TA,
and numerous other entities involved in the perpetration of a massive fraud on the
State. No bank accounts existed for some of the Trillian companies. Mr Robinson
found that more than R 834 million was paid to the Trillion companies: R595,2 million
was paid by Eskom to TMC, R147,1 million by Regiments to TMA and R76,4 million
by Transnet to TC. It was subsequently ascertained that R 5.7 million was also paid to
a Trillian company by SA Express. These monies, in turn, were transferred between
the accounts of the various Trillian companies, one company transferring funds to
another.
another.
[8] Mr Robinson stated that ‘the affairs of Trillian Management Consulting Pty Ltd
and the other Trillian companies are intermingled to the extent that it is not possible to
properly investigate the dealings and affairs of Management in the absence of the
other Trillian companies’. The business of t he Trillian companies, according to him,
6
was indistinguishable and they were being managed as one economic entity. Mr
Robinson also dealt with the massive fraud that had been perpetrated and the corrupt
activities in which the Trillian companies were participants. The monies flowed to TMC
and the other Trillian companies in circumstances where they did not render any
legitimate services to either Eskom, Transnet, SA Express, Regiments, or the other
entities that paid monies into their bank accounts. M r Robinson’s findings evince in
no uncertain terms that TMC and the other Trilli an companies were not only
incorporated or used in a manner that constitutes an unconscionable abuse of the
juristic personality, but also that the companies conducted business in a fraudulent
manner and for a fraudulent purpose.
[9] On 18 June 2019 , the Gauteng Division of the High Court of South Africa,
Pretoria (the high court, Pretoria) inter alia granted judgment against TMC and TCP to
repay to Eskom the sum of R595 228 913.29 plus interest and costs. TMC applied for
leave to appeal against the judgment . On 2 October 2019 its application for leave to
appeal was dismissed.
[10] The judgment debt remained unpaid. On 17 January 2020, Eskom issued a
liquidation application in the high court, Pretoria . In its founding affidavit Eskom
specifically dealt with Mr Wood’s answering affidavit in opposition to the s 18
application. Therein, Mr Wood confirmed that at that point in time further litigation had
been instituted against the Trillian group of companies by: (a) Transnet against TAM
and others for payment of R93 480 000; (b) Transnet against TFA, TCA and others for
payment of R11,4 million; (c) Transnet against TCP, TFA and others for payment of
R41 040 000; and (d) Transnet Second Defined Benefit Fund against TCP, TFA, TAM,
TMC and Mr Wood for payment of inter alia R179 543 257.21. Transnet established
that TMC was factually and commercially insolvent. On 9 Mar ch 2020, it was finally
that TMC was factually and commercially insolvent. On 9 Mar ch 2020, it was finally
wound up by order of that court. The Master of the High Court appointed Mr Murray,
Ms Sivalutchmee Moodliar and Mr Ndumiso Sibiya as the joint provisional liquidators
of TMC (the liquidators).
[11] On 25 September 2020, the liquidators initiated motion proceedings in the high
court against TCP, TS, TN, TSS, TP, and TFA as the first to sixth respondents (the
subject companies). Zara was cited as the seventh respondent, but no relief was
7
sought against it. The eighth respondent was the Master of the High Court, Pretoria
(the Master), and the ninth respondent, the Companies and Intellectual Property
Commission (the CIPC)’. The liquidators sought relief in terms of s 20(9) of the
Companies Act 71 of 2008 (the Companies Act) (the s 20(9) application).
[12] Section 20(9) reads:
‘If, on application by an interested person or in any proceedings in which a company is
involved, a court finds that the incorporation of the company, any use of the company, or any
act by or on behalf of the company, constitutes an unconscionable a buse of the juristic
personality of the company as a separate entity, the court may-
(a) declare that the company is to be deemed not to be a juristic person in respect of any
right, obligation, or liability of the company or of a shareholder of the company or, in the case
of a non -profit company, a member of the company, or of another person specified in the
declaration; and
(b) make any further order that the court considers appropriate to give effect to a
declaration contemplated in paragraph (a).’
[13] Our common law recognise s ‘piercing’ or ‘lifting’ the corporate veil. In Cape
Pacific Ltd v Lubner Controlling Investments (Pty) Ltd and Others ,2 Smalberger JA,
said this:
‘Recently this was confirmed in The Shipping Corporation of India Ltd v Evdomon Corporation
and Another 1994 (1) SA 550 (A) where Corbett CJ expressed himself as follows at 566C-F:
“It seems to me that, generally, it is of cardinal importance to keep distinct the property rights
of a company and those of its shareholders, even where the latter is a single entity, and that
the only permissible deviation from this rule known to our law occurs in those (in practice) rare
cases where the circumstances justify "piercing" or "lifting" the corporate veil. And in this
regard it should not make any difference whether the shares be held by a holding company or
regard it should not make any difference whether the shares be held by a holding company or
by a Government. I do not find it necessary to consider, or attempt to define, the circumstances
under which the Court will pierce the corporate veil. Suffice it to say that they would generally
have to include an element of fraud or other improper conduct in the establishment or use of
the company or the conduct of its affairs. I n this connection the words "device", "stratagem",
"cloak" and "sham" have been used. . . .”
2 Cape Pacific Ltd v Lubner Controlling Investments (Pty) Ltd and Others [1995] ZASCA 53; [1995 ] 2
All SA 543 (A); 1995 (4) SA 790 (A) at 803E-804J.
8
Two matters arising from the quoted passage merit further comment. First, reference is made
to “those (in practice) rare cases where the circumstances justify "pie rcing" or "lifting" the
corporate veil”. It is undoubtedly a salutary principle that our Courts should not lightly disregard
a company's separate personality, but should strive to give effect to and uphold it. To do
otherwise would negate or undermine the policy and principles that underpin the concept of
separate corporate personality and the legal consequences that attach to it. But where fraud,
dishonesty or other improper conduct (and I confine myself to such situations) is found to be
present, other considerations will come into play. The need to preserve the separate corporate
identity would in such circumstances have to be balanced against policy considerations which
arise in favour of piercing the corporate veil (cf Domanski 'Piercing the Corporate Veil - A New
Direction' (1986) 103 SALJ 224). And a court would then be entitled to look to substance rather
than form in order to arrive at the true facts, and if there has been a misuse of corporate
personality, to disregard it and attribute liability where it should rightly lie. Each case would
obviously have to be considered on its own merits.
The second is the reference to the inclusion of “an element of fraud or other improper conduct
in the establishment or use of the company or the conduct of its affairs”. (My emphasis.) It is
not necessary that a company should have been conceived and founded in deceit, and never
have been intended to function genuinely as a company, before its corporate personality can
be disregarded (as appears in some respects to have been the view of the trial Judge - see
the judgment at 821G-J). As Gower (op cit) states (at 133):
“It also seems clear that a company can be a f acade even though it was not originally
incorporated with any deceptive intention; what counts is whether it is being used as a facade
incorporated with any deceptive intention; what counts is whether it is being used as a facade
at the time of the relevant transactions.”
Thus if a company, otherwise legitimately established and operated, is misused in a particular
instance to perpetrate a fraud, or for a dishonest or improper purpose, there is no reason in
principle or logic why its separate personality cannot be disregarded in relation to the
transaction in question (in order to fix the individual or individuals responsible with personal
liability) while giving full effect to it in other respects . In other words, there is no reason why
what amounts to a piercing of the veil pro hac vice should not be permitted.’
[14] Section 20(9) has introduced a statutory basis for piercing or lifting the
corporate veil. In City Capital SA Property Holdings Limited v Chavonnes Badenhorst
St Clair Cooper NO and Others,3 this Court stated:
3 City Capital SA Property H oldings Limited v Chavonnes Badenhorst St Clair Cooper NO and Others
[2017] ZASCA 177; 2018 (4) SA 71 (SCA) paras 28-30.
9
‘Section 20(9) of the 2008 Act provides a statutory basis for piercing the corporate veil. On its
plain wording, s 20(9) permits a court to disregard the separate juri stic personality of the
company where its incorporation, use or an act performed by or on its behalf 'constitutes an
unconscionable abuse of the juristic personality of the company as a separate entity'. The
term 'unconscionable abuse' is not defined in th e 2008 Act and must therefore be given its
ordinary meaning.
The meaning of 'unconscionable' in the Oxford English Dictionary includes, 'Showing no
regard for conscience . . . unreasonably excessive . . . egregious, blatant . . . unscrupulous.'
It is in m y view undesirable to attempt to lay down any definition of 'unconscionable abuse'
[Leslie Brown The New Shorter Oxford Dictionary on Historical Principles (3 ed 1993) vol 2 p
1466]. It suffices to say that the unconscionable abuse of the juristic personality of a company
within the meaning of s 20(9) of the 2008 Act includes the use of, or an act by, a company to
commit fraud; or for a dishonest or improper purpose; or where the company is used as a
device or facade to conceal the true facts [804C-D].
Thus, where the controllers of various companies within a group use those companies for a
dishonest or improper purpose, and in that process treat the group in a way that draws no
distinction between the separate juristic personality of the members of the group, as happened
in this case, this would constitute an unconscionable abuse of the juristic personalities of the
constituent members, justifying an order in terms of s 20(9) of the 2008 Act [Ex parte Gore
and Others NNO 2013 (3) SA 382 (WCC) para 33. This is not new. In Ritz Hotel [Ritz Hotel
Ltd v Charles of the Ritz Ltd and Another 1988 (3) SA 290 (A) at 315F] this court referred to
English authority in which Lord Denning MR observed that, as regards piercing the corporate
English authority in which Lord Denning MR observed that, as regards piercing the corporate
veil, there was a general tendency to ignore the separate legal entities of various companies
within a group and to look instead at the economic entity of the whole group, especially where
a parent company owns and controls the subsidiaries [DHN Food Distributors Ltd v Tower
Hamlets London Borough Council [1976] 1 WLR 852 (CA) at 860B ([1976] All ER 462 at 467b-
c].’
[15] Section 20(9) did not abolish or replace the common law. It supplements the
common law and does not establish a defined set of circumstances in which a court
may disregard the separate legal personality of a company.4
4 Ex parte Gore NO and Others NNO [2013] ZAWCHC 21; [2013] 2 All SA 437 (WCC) para 34.
10
[16] None of the respondents opposed the s 20(9) application. On 20 October 2020,
the high court (Keightley J) issued the following order prayed for in the notice of motion
(the s 20(9) interim order):
‘1. The applicants’ non-compliance with the rules of court concerning forms, service and time
periods otherwise applicable is condoned, such rules are dispensed with and the
application is h eard and adjudicated upon as an urgent application in terms of uniform
rule 6(12);
2. It is hereby declared that a rule nisi in the following terms are granted (“the provisional
order”):
a. Trillian Capital Partners (Pty) Ltd [Reg No: 2015/111759/07], Tril lian Securities (Pty)
Ltd [Reg No: 2015/152852], Trilli an Nominees (Pty) Ltd [Reg No: 2017/036662/07],
Trillian Shared Services (Pty) Ltd [Reg No: 2015/111747/07], Trillian Property (Pty) Ltd
[Reg No: 2016/046295/07] and Trillian Financial Advisory (Pty) L td [Reg No:
2014/122082/07] (“the subject companies”):
i. are deemed not to be separate juristic persons in respect of any right, obligation or
liability of those companies or of a shareholder of the subject companies;
ii. are collapsed into Trillian Management Consulting (Pty) Ltd (“TMC”) and the subject
companies and TMC henceforth exist as a single entity by ignoring their separate
legal existence as contemplated by section 20(9) read with section 22 of the
Companies Act, 71 of 2008 (“the 2008 Act”); and
iii. the effective date of the commencement of the subject companies’ liquidation
proceedings is the date upon which TMC was placed in liquidation;
b. The Companies and Intellectual Property Commission (“CIPC”) and the Master of the
High Court, Pretoria are directed to amend their records to reflect the consolidation of
the subject companies, their composite winding up proceedings and such further
consequences as they deem fit and/or necessary, in accordance with the orders
granted pursuant to this application.
granted pursuant to this application.
c. The costs of this application are costs in the consolidated winding-up of TMC and the
subject companies.
2. Any order granted pursuant to this application shall forthwith be published in the
Government Gazette and two newspapers published in the Gauteng Province.
3. Any party with an interest in this application and the provisional order are called upon to
show cause on a date to be allocated by the registrar of this court, which shall be a date
after days from the publication of any order granted pursuant to this application, as to why
the provisional order should not be made final.
11
4. The costs consequent upon this application, up to the date of confirmation or discharge
of the provisional order, are reserved pending the final determination of this application,
save in the event that this application becomes opposed, in which event the applicants
will request that any such opposing party be order ed to pay the costs of this application
on the scale as between attorney and client.’
[17] The s 20(9) interim order was duly published in the Government Gazette and
two local newspapers. Confirmation of the provisional order was not opposed by any
of the subject companies, Zara, or anyone else . On 20 January 2021, the high court
(Vuma AJ) granted an order confirming the rule nisi (the s 20(9) final order).
[18] On 4 February 2021, the liquidators instituted an action against CMSA on the
grounds that an aggregate amount of R210 298 901 repaid by TSS to CMSA pursuant
to a loan agreement concluded between the two entities, an aggregate amount of
R69 956 099 repaid by TFA to CMSA pursuant to a loan agreement concluded
between the two entities, and the amount of R160 246 000 repaid by TMC to CMSA
pursuant to the loan agreements, constitute voidable dispositions as contemplated in
ss 21, 29 or 31 of the Insolvency Act 24 of 1936 , and for such payments to be set
aside and repaid to the li quidators for the benefit of the creditors of the Trilli an
companies in liquidation.
[19] This prompted CMSA to launch an application in the high court, on 5 August
2021. It sought an order that the s 20(9) order ‘be rescinded and set aside’ under s
354 of the 1973 Companies Act ,5 r 42(1)(a) of the Uniform Rules of Court or the
common law (the rescission application) . CMSA did not take issue with any of the
factual averments set out in the liquidators’ founding affidavit in their s 20(9)
application. The case sought to be made out is simply that it was erroneous and
incompetent for the high court to grant the relief set out in paragraphs 2.a.ii. and 2.a.iii.
incompetent for the high court to grant the relief set out in paragraphs 2.a.ii. and 2.a.iii.
5 Section 354 reads:
‘354. Court may stay or set aside winding-up.
(1) The Court may at any time after the commencement of a winding -up, on the application of any
liquidator, creditor or member, and on proof to the satisfaction of the Court that all proceedings in
relation to the winding -up ought to be stayed or set asid e, make an order staying or setting aside the
proceedings or for the continuance of any voluntary winding -up on such terms and conditions as the
Court may deem fit.
(2) The Court may, as to all matters relating to a winding-up, have regard to the wishes of the creditors
or members as proved to it by any sufficient evidence.’
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of the s 20(9) order, collapsing the subject companies into TMC (in liquidation) and to
place them under a composite winding-up with TMC. The rescission application was
opposed by the liquidators.
[20] On 12 September 2022, the high court delivered its judgment. It dismissed the
rescission application with costs, including those of two counsel. It held that no case
was made out for any relief under s 354 of the 1973 Compa nies Act or under the
common law. It further held that ‘[t]he case for CMSA does not fall within the category
of cases that qualify for rescission based on an erroneous order under Rule 42(1)(a)’.
It nevertheless undertook an interpretive analysis of s 20(9) of the Companies Act and
concluded ‘that the provisions of s 20(9) are wide and would not only permit of such
an order but the circumstances of this matter call for such an order’. In this regard, it
further stated:
‘It would be untenable that a main fraudster can be liquidated and that when the co -
conspirators are discovered and found to be holding the assets and being solvent, that the
court would not exercise the powers in terms of s 20(9), as it happened in this matter.’
[21] I agree with the high court that no case was made out for any relief under s 354
of the 1973 Companies Act or under the common law. CMSA’s founding affidavit
advanced no case for the setting aside of the s 20(9) final order under s 354 or for
rescinding that order in terms of the common law. Its case, to the extent that there was
one, rested squarely on r 42(1) (a) of the Uniform Rules of Court. Rule 42(1) (a)
provides:
‘The court may, in addition to any other powers it may have, mero motu or upon the application
of any party affected, rescind or vary –
(a) an order or judgment erroneously sought or erroneously granted in the absence of any
party affected thereby.’
[22] In Lodhi 2 Properties Investments CC and Another v Bondev Development (Pty)
[22] In Lodhi 2 Properties Investments CC and Another v Bondev Development (Pty)
Ltd,6 Streicher JA held ‘[t]hat where notice of proceedings to a party is required and
judgment is granted against such party in his absence without notice of the
6 Lodhi 2 Properties Investments CC and Another v Bondev Development (Pty) Ltd [2007] ZASCA 85;
2007 (6) SA 87 (SCA).
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proceedings having been given to him such judgment is granted erroneously ’.7
‘However, a judgment to which a party is procedurally entitled cannot be considered
to have been granted erroneously by reason of facts of which the Judge who granted
the judgment, as he was entitled to do, was unaware’.8 Streicher JA further held:
‘Similarly, in a case where a plaintiff is procedurally entitled to judgment in the absence of the
defendant the judgment if granted cannot be said to have been erroneously granted in the
light of a subsequently disclosed defence. A Court which grants a judgment by default like the
judgments we are presently concerned with, does not grant the judgment on the basis that the
defendant does not have a defence: it grants the judgment on the basis that the defendant
has been notified of the plaintiff’s claim as required by the Rules, that the defendant, not having
given notice of an intention to defend, is not defending the matter and that the plaintiff is in
terms of the Rules entitled to the order sought. The existence or non -existence of a defence
on the merits is an irrelevant consideration and, if subsequently disclosed, cannot transform a
validly obtained judgment into an erroneous judgment.’
[23] The liquidators were in terms of the Uniform Rules of Court entitled to approach
the high court for the interim s 20(9) order and the s 20(9) final order. CMSA’s
subsequently disclosed defence (should there be one) based on its interpretation of s
20(9) of the Companies Act, cannot transform the validly obtained judgments into
erroneous judgments. I n truth, the rescission application is nothing else but a
disguised appeal. However, CMSA does not have a right of appeal against the s 20(9)
final order. Wepener J, who dismissed the rescission application, undertook a
comprehensive interpretative analysis of s 20(9). As an appeal does not avail CMSA,
the correctness of that interpretation is not before us.
the correctness of that interpretation is not before us.
[24] Importantly, Zara and none of the subject companies have ever attempted to
assail the s 20(9) final order. It is doubtful that any of them would have been able to
successfully invoke r 42(1)(a) – much less CMSA. Moreover, the composite winding-
up order was granted more than three years ago. An enquiry in terms of s 417 of the
1973 Companies Act was convened by the high court for the purposes of investigating
the affairs of the Trillian group of companies, and retired Judge C Pretorius was
appointed to act as Commissioner to preside over the enquiry. The enquiry is not yet
7 Ibid para 24.
8 Ibid para 25.
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concluded and has already run over several weeks with the testimony of numerous
witnesses received. The documentary evidence forming part of the record runs into
several thousands of pages. The total cost incurred thus far exceeds R4 million. It can
safely be accepted that the composite winding-up is presently at an advanced stage.
The liquidators and creditors of the subject companies have an interest in finality.
[25] In Express Model Trading 289 CC v Dolphin Ridge Body Corporate9 where the
winding-up had also progressed apace, Ponnan JA observed in the context of a
condonation and reinstatement of an appeal application, that it may indeed prove
impossible to turn back the clock and that it may thus be arguable that the appeal has
become academic, but he considered it unnecessary ‘to go that far’. The progress of
the winding-up, however, is in my view a weighty consideration within the context of
the exercise of a court’s discretion whether to grant rescission of a judgment under r
42(1)(a) of the Uniform Rules of Court.10
[26] In the result the appeal is dismissed with costs, including those of two counsel.
________________________
P.A. MEYER
JUDGE OF APPEAL
9 Express Model Trading 289 CC v Dolphin Ridge Body Corporate [2014] ZASCA 17; [2014] 2 All SA
513 (SCA); 2015 (6) 224 (SCA) para 18.
10 Zuma v Secretary of the Judicial Commission of Inquiry into Allegations of State Capture, Corruption
and Fraud in the Public Sector Including Organs of State and Others [2021] ZACC 28; 2021 (11) BLCR
1263 (CC) para 53.
15
Appearances
For appellant: G Wickens SC with J Brewer
Instructed by: Mervyn Taback Inc, Johannesburg
Webbers, Bloemfontein
For first to ninth respondent: B H Swart SC with P W T Lourens
Instructed by: MacRobert Attorneys, Pretoria
Lovius Block, Bloemfontein