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[2022] ZANCHC 38
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Venter N.O and Another v Alba Skrynwerkersgeboue (Pty) Ltd (1871/2021) [2022] ZANCHC 38 (22 July 2022)
IN THE HIGH COURT OF
SOUTH AFRICA
NORTHERN CAPE
DIVISION, KIMBERLEY
Case No:
1871/2021
Reportable: YES / NO
Circulate to Judges: YES
/ NO
Circulate to Magistrates:
YES / NO
Circulate to Regional
Magistrates: YES / NO
Heard:
22/04/2022
Date delivered:
22/07/2022
In the matter between:
LIEZEL
VENTER
N.O.
First
Applicant
NEERMALA
(SUSAN) RAMCHANDRA N.O.
Second
Applicant
In their capacity as
Liquidators of
JMA Petroleum CC t/a Gas
City [In Liquidation]
(Registration Number:
1997/005 029/23)
and
ALBA
SKRYNWERKERSGEBOUE (PTY)
LTD
Respondent
JUDGMENT
Mamosebo J
[1]
The first applicant, Liezel Venter N.O., and the second applicant,
Neermala (Susan)
Ramchandra N.O., are insolvency practitioners
appointed by the Master of the Western Cape High Court on 20 July
2021 as liquidators
of JMA Petroleum CC t/a Gas City placed under
liquidation by Special Resolution registered on 10 June 2021.
[2]
On 22 April 2022, the applicants launched an application against the
respondent, Alba
Skrynwerkersgeboue (Pty) Ltd, under Parts A and B.
In Part A they are seeking the following relief:
2.1
That leave be granted to the applicants in terms of s 18(3) of the
Insolvency Act,
[1]
r/w
s 386 (4) of the Companies Act
[2]
to
launch this application;
2.2
That the applicants are authorised in terms of s 69 of the Insolvency
Act to enter properties
39 – 41 Toekoms Street, Upington, and
search and take into possession any and all movable assets, books and
documents belonging
to JMA Petroleum CC t/a Gas City (in liquidation)
and remove same from the
premises;
2.3
That the said warrant be executed either by a member/s of the South
African Police Service
or by the Sheriff of the Court; and
2.4
Costs of the application to be paid by the respondent on an attorney
and own client scale.
[3]
In terms of Part B of the Notice of Motion, the applicants are
seeking the following
relief:
3.1
A declaratory order that the respondent is in contravention of s
142(1), (2) and 145 of
the Insolvency Act
[3]
;
3.2
That the National Prosecuting Authority is directed to investigate
the actions and contravention
of the respondent of sections 142 and
145 of the Insolvency Act and to determine whether to proceed with
prosecution; and
3.3
costs of the application by the respondent on an attorney and own
client scale.
[4]
The respondent resists the application and raised the following
points
in limine:
4.1
That the Magistrates Court has exclusive jurisdiction to hear
applications in terms of s
69(3) of the Insolvency Act;
4.2
That the applicants failed to comply with s 19(1) of the Insolvency
Act;
4.3
That the liquidator cannot rely on the provisions of s 69 of the
Insolvency Act but rather
on s 386 of the Companies Act;
4.4
That the applicants lack jurisdiction to seek a declaratory order.
[5]
The background is necessary for context. On 10 June 2021 the
Companies and Intellectual
Property Commission (CIPC) addressed a
certificate, annexure “FA2”, to the Master of the High
Court, confirming receipt
of the CM26 Special Resolution for
Voluntary Liquidation in terms of s 352(2) of the Companies Act.
Resultantly on 10 June 2021
JMA Petroleum CC company number
1997/005029/23’s, status was changed to Voluntary Liquidation.
[6]
On 20 July 2021 the Master of the Western Cape High Court appointed
Liezel Venter
N.O., practicing under the name and style of Maurice
Schwartz Venter & Associates (Pty) Ltd, and Neermala (Susan)
Ramchandra,
practicing under the name and style of Stowell Estate
Administration Trust, as liquidators with the powers as set out in s
386(1)
of the Companies Act read together with item 9 of Schedule 5
of Act 71 of 2008 of the Close Company known as JMA Petroleum CC.
[7]
The respondent, the owner of premises 39 – 41 Toekoms Street,
Upington, and
former landlord of JMA Petroleum CC t/a Gas City, is
aware of the liquidation proceedings as it was informed
telephonically and
by e-mail on 14 July 2021. The applicants
appointed Landile Security to safeguard the premises while
simultaneously instructing
Renet Fouché of Alibia Trading 230
(Pty) Ltd t/a Alibia Asset Disposal to obtain an inventory and
valuation of the assets
of Gas City.
[8]
The site visits of Gas City by
Alibia
took place on 12 and 13
July 2021 when Landile Security was also granted access. This was
followed by an inspection and valuation
of the property. Alibia was
authorised to collect the remainder of the assets for safe storage to
be dealt with in terms of the
Insolvency Act. On 14 July 2021 Fouché
addressed an email to Mr Herman Kaindibinder notifying him that the
assets will be
removed on the 19
th
July 2021 and requested
that he furnish her with a copy of the signed lease agreement, which
he did. Fouché arranged with
Parau Logistics and Transport
(Pty) Ltd to attend to the packing and transportation of the assets
from 20A Industrial Way Street,
Upington and 39 – 41 Toekoms
Street, Upington, at a combined cost of R26 000.00. The
applicants’ representatives
visited the site but were denied
access.
[9]
The applicants addressed correspondence to the respondent in terms of
s 47 of the
Insolvency Act to the effect that the respondent has an
automatic lien over the assets in respect of arrear rental and that
the
respondent would retain that lien regardless of having released
the assets to the applicants. Further, the applicants elected
to take over the property at the full amount of the respondent’s
claim for arrear rental in terms of s 83(3) of the Insolvency
Act
which offer was declined by the respondent. It is on that basis that
the applicants approached Court maintaining that the respondent
is
unlawfully withholding and concealing assets of the insolvent estate
and thereby contravened sections 142 and 145 of the Insolvency
Act.
[10]
The respondent’s attorneys, Bekker Bergh & More Inc,
addressed a letter to Ms Venter
on 22 July 2021 stating that their
client had entered into a five-year lease agreement on 14 June 2019
effective from 01 July 2019;
that there was an outstanding rental
amount of R69 467.65 which entitled their client to a tacit
hypothec over the property
that was on the premises. Notwithstanding
that the liquidators had since 21 July 2021 assured the respondent
that it will not lose
its hypothec by releasing the affected assets
however on 22 July 2021 Bekker Bergh & More Inc. served the
applicants with a
notice in terms of s 47 of the Insolvency Act.
[11]
On 26 July 2021, an email was addressed to Kock, Bekker Bergh &
More Inc and Liebenberg by
the liquidators informing them that they
will pay to the respondent the full amount of the respondent’s
claim in terms of
s 83(3) of the Insolvency Act in order to take over
the property but received no response. On 02 August 2021, a further
email was
addressed to the same parties and referred them to the
provisions of s 145 of the Insolvency Act which makes it a criminal
offence
to wrongfully withhold assets. The assets have still not been
released to the applicants hence this application.
FOUR POINTS
IN
LIMINE
WERE RAISED
The first point
in
limine
: Whether the Magistrates Court has Exclusive jurisdiction
to adjudicate the matter in terms of s 69(3) of the Insolvency Act or
not
[12]
Section 69 stipulates:
“
(1)
A trustee shall, as soon as possible after his appointment, but not
before the deputy-sheriff has made the inventory referred
to in
sub-section (1) of section nineteen, take into his possession or
under his control all movable property, books and documents
belonging
to the estate of which he is trustee and shall furnish the Master
with a valuation of such movable property by an appraiser
appointed
under any law relating to the administration of the estates of
deceased persons or by a person approved by the Master
for the
purpose.
(2) If the trustee has
reason to believe that any such property, book or document is
concealed or otherwise unlawfully withheld
from him, he may apply to
the magistrate having jurisdiction for a search warrant mentioned in
sub-section (3).
(3) If it appears to a
magistrate to whom such application is made, from a statement made
upon oath, that there are reasonable grounds
for suspecting that any
property, book or document belonging to an insolvent estate is
concealed upon any person, or at any place
or upon or in any vehicle
or vessel or receptacle of whatever nature, or is otherwise
unlawfully withheld from the trustee concerned,
within the area of
the magistrate’s jurisdiction, he may issue a warrant to search
for and take possession of that property,
book or document.”
[13]
In his answering affidavit, Mr Arno Kock, a director of the
respondent, contended that s 69(2)
requires the applicant to apply to
the Magistrate having jurisdiction for a search warrant if there is
reason to believe that any
property, book or document belonging to
the insolvent estate is concealed or unlawfully withheld. He further
contended that s 69(3)
specifically authorises the Magistrate to
issue a warrant to search for and take possession of the property
belonging to the insolvent
estate and for that reason, the Magistrate
has exclusive jurisdiction in terms of s 69 and the relief sought by
the applicants
falls outside the jurisdiction of the High Court.
[14]
Mr Van Rensberg, for the respondent, contended that the Act gives
exclusive jurisdiction to the
Magistrate to adjudicate over
applications in terms of s 69(3) and the applicants have not
furnished any reasons why they approached
the High Court for the
relief sought. The respondent’s interpretation of s 69(3)
implies that the jurisdiction of the
High Court is ousted.
[15]
Mr Carstens, for the applicants, relied on
Richards
Bay Bulk Storage (Pty) Ltd v Minister of Public Enterprises
[4]
where
EM Grosskopf JA, writing for the unanimous court, said:
“
The
question at issue is therefore whether the Court a quo had
jurisdiction to hear the review application. This in turn depends
on
whether the Act excluded such jurisdiction. The Act does not do so in
express terms, and the question then is whether it contains
an
implication to that effect. The parties were ad idem that there is a
strong presumption against such an implication:
‘…
(T)he
Court’s jurisdiction is excluded only if that conclusion flows
by necessary implication from the particular provisions
under
consideration, and then only to the extent indicated by such
necessary implication…’”
[16]
In
Standard
Bank of South Africa Ltd And Others v Mpongo And Others
[5]
,
[A1]
the
Supreme Court of Appeal pronounced:
“
[69]
The threshold to sustain the proposition that there is an ouster of
the High Court’s jurisdiction
is very high. In Metcash Trading
Ltd v Commissioner, South African Revenue Service and Another,
Kriegler J, in the course of determining
whether a statute had ousted
the jurisdiction, the High Court demonstrated the method of deciding
the question. He said that ‘there
is nothing in s 36 to suggest
that the inherent jurisdiction of a High Court to grant appropriate
other or ancillary relief is
excluded’ and that the section
‘does not say so expressly nor is such an ouster necessarily
implicit in its terms,
while it is trite that there is a strong
presumption against such an implication’.”
[17]
The applicants, invoking the unreported judgment by Dlodlo J in
Duku
N.O. and others v Bermy Packaging (Pty) Ltd
[6]
,
submitted
that it is permissible to approach the High Court as a court of first
instance in seeking redress under s 69(3). It is
further not in
dispute that the High Court’s jurisdiction is vested in terms
of s 169(1) of the Constitution of the Republic
of South Africa read
with s 21 of the Superior Courts Act
[7]
which
stipulates:
“
Persons
over whom and matters in relation to which Divisions have
jurisdiction
.- (1) A Division
has jurisdiction over all persons residing or being in, and in
relation to all causes arising and all offences
triable within, its
area of jurisdiction and all other matters of which it may according
to law take cognisance, and has the power
–
(a)
to hear and determine appeals from
all Magistrates’ Courts within its area of jurisdiction;
(b)
to review the proceedings of all
such courts;
(c)
in its discretion, and at the instance
of any interested person, to enquire into and determine any existing,
future or contingent
right or obligation, notwithstanding that such
person cannot claim any relief consequential upon the determination.”
[18]
Mr Van Rensburg did not furnish any authority to counter the
submission that a litigant may approach
this Court as a court of
first instance. I am of the view that s 69(2) of the Insolvency
Act does not expressly oust the
jurisdiction of the High Court. It
can also not be reasonably inferred from the reading of the section
that the High Court’s
jurisdiction is ousted by implication. It
therefore follows that the High Court, having inherent jurisdiction,
cannot refuse to
hear a matter that is within its jurisdiction. In my
view, the fact that the applicants did not apply to the Magistrates
Court
cannot be used as an impediment to non-suit them.
It therefore follows
that the contention by the respondent that the Magistrates Court has
exclusive jurisdiction stands to fail.
The second point
in
limine
: That the applicants failed to comply with s 19(1) of the
Insolvency Act
[19]
It was contended on behalf of the respondent that the applicants have
failed to comply with s
19(1) of the Insolvency Act in that the
deputy sheriff did not conduct an inventory of the movable property,
books and documents
belonging to the insolvent estate before the
applicants approached the Court in terms of s 69 of the Insolvency
Act.
[20]
In para 4.1 of the applicants’ founding affidavit, they allege
that Gas City was placed
into liquidation by Special Resolution in
terms of s 352(2) of the Companies Act on 10 June 2021. The
respondent admits this allegation
at para 26 of its answering
affidavit. It is contended on behalf of the applicants that since Gas
City was placed in final liquidation
by way of a Special Resolution
and not by a Court order, no court order could be provided to the
deputy sheriff to trigger the
s 19(1) obligations. Of importance, is
the fact that the assets belonging to Gas City are in the possession
of the respondent and
subject to a tacit hypothec and that the
applicants have offered to take over the property at the full amount
of the respondent’s
claim. Sec 391 of the Companies Act
[8]
requires
the liquidators to recover the assets forthwith. It is further
significant to note that Renet Fouché of Alibia Trading
had
conducted an inventory and valuation of the assets of Gas City. I am
of the view that the need for an inventory by the sheriff
under the
current circumstances does not arise.
It follows that the
contention
in limine
that the applicants failed to comply with
s 19(1) of the Insolvency Act ought not to succeed.
The third point
in
limine:
That the liquidator cannot rely on the provisions of s 69
of the
Insolvency
Act but rather on s 386 of the Companies Act
[21]
The respondent in
Duku
[9]
took
a similar point
that
the relief sought by the applicants in terms of s 69 of the
Insolvency Act is not competent because the liquidators are empowered
to act in terms of s 386(4) of the Companies Act and did not
succeed. Section 386
deals with the general powers of the liquidators. I align with the
remarks by Bertelsmann J, concurred in by Poswa J in the
unreported judgment
De
Beer v Hamman NO & Others
[10]
:
“
A
liquidator and/or trustee is obliged to ensure that goods belonging
to the insolvent estate are found, secured and liquidated
in
accordance with the provisions of the Insolvency Act and/or the
Companies Act for the benefit of the creditors of the insolvent
estate.”
Regard being had to the
discussions above pertaining to s 69, I am of the view that this
point can also not succeed because s69
provides
the mechanism that the applicants can utilise and it remains
available to
the liquidators.
The supplementary
founding affidavit
[22]
The applicants sought leave to file a supplementary founding
affidavit to the opposing affidavit
of the respondent. They maintain
that it is required because upon receipt of the respondent’s
heads of argument, they realised
that the respondent seeks to rely on
a point of law which was not raised in its answering affidavit,
namely, that this Court lacks
jurisdiction in terms of s 69 of the
Insolvency Act to determine the matter as no allegation has been made
that Gas City was insolvent
and unable to pay its debts. This
application is opposed by the respondent who submits that it can
raise a point of law at any
stage of the proceedings and specifically
in its heads of argument that were filed more than four months before
the matter was
heard. The applicants’ failure to address the
matter sooner or to file their explanation for the delay and seek
condonation
from the court should attract a dismissal of their
application.
[23]
Mr Van Rensburg, for the respondent, relied on
Putter
v Minister of Law and Order and Another NO
[11]
where
the Court pronounced:
“
Clearly,
it is fundamental that the company being wound up must be a company
unable to pay its debts before any provision of the
Insolvency Act
can be applicable to such winding up.”
The Court in
Putter
dealt with an application to set aside a warrant issued by the
magistrate in terms of s 69(3) of the Insolvency Act without any
notice to the applicant whose rights were affected. The allegation
was that the applicant was unlawfully withholding a Mercedes
Benz
motor vehicle from the liquidator.
[24]
Sec 339 of the Companies Act
[12]
is
applicable to companies and Close Corporations, and stipulates:
“
Law
of insolvency to be applied mutatis mutandis.-
In the winding-up of a
company unable to pay its debts the provisions of the law relating to
insolvency shall, insofar as they are
applicable, be applied mutatis
mutandis in respect of any matter not specifically provided for by
this Act.”
[25]
Mr Van Rensberg submitted that the applicant must allege in the
founding papers that Gas City
is unable to pay its debts and it has
not done so. The respondent has raised the alleged flaw in January
2022 but the applicants
waited until a week before the hearing to
bring the application. Invoking
Van
Wyk v Unitas Hospital and Another (Open Democratic Advice Centre as
Amicus Curiae)
[13]
,
Mr
Van Rensburg argued that the applicants failed to apply for
condonation for the late filing of the supplementary founding
affidavit
and must stand or fall by the founding affidavit and urged
this Court to dismiss their application. Mr Carstens, for the
Liquidators, submitted that the applicants are not seeking
condonation but merely asking the Court to grant the applicants leave
to file an additional affidavit. What the respondent is doing, argued
counsel, is approbating and reprobating because a company
in
liquidation is insolvent and it will be to the benefit of the
creditors who are already prejudiced by the insolvency to derive
the
best possible dividend from the winding up of the estate.
[26]
On the issue of whether the applicants should be permitted to file a
further affidavit or not.
The general practice relating to the number
of affidavits is settled. Ordinarily, the rule is that three sets of
affidavits are
allowed. The Court may in its discretion permit the
filing of further affidavits (
See Rule 6(5) of the Uniform Rules
of Court
). The filing of a further affidavit is therefore not
there merely for the asking as without the Court’s leave to do
so, such
affidavit may be regarded as
pro non scripto.
[27]
A litigant who seeks to serve additional affidavits is under a duty
to provide a proper and satisfactory
explanation acceptable to the
Court as to the cause or reasons why the information was not placed
before the Court at an appropriate
stage. I am of the view that
since the respondent’s case is that the applicants have failed
to demonstrate in their
case that Gas City is unable to pay its debts
in the founding affidavit, the additional affidavit seeks to
elaborate on para 4.1
of the applicants’ founding affidavit
pertaining to the certificate issued by the Commissioner: CIPC. This
court retains
the discretion to admit further affidavits if it is in
the interests of justice to do so.
I
am satisfied that no prejudice is caused to the respondent in
accepting the additional affidavit with its annexures.
[14]
[28]
Mr Van Rensburg argued that there is also a fundamental flaw in the
applicants’ founding
papers caused by the failure of the second
applicant to show that they are acting jointly as liquidators. In
countering this submission
Mr Carstens submitted that both
liquidators are before court and had that not been the case, the
respondent should have invoked
Rule 7 of the Uniform Rules of Court
to attack their authority, which was not done. The second
applicant has also deposed
to a confirmatory affidavit confirming the
contents of the founding affidavit. Attacking the absence of a
confirmatory affidavit
is without merit.
I am satisfied that both
liquidators are properly before me.
The fourth point
in
limine: That the applicants lack jurisdiction to seek a declaratory
order
[29]
It was submitted on behalf of the respondent that the relief sought
in Part B is misconstrued
as the Court is not competent to grant such
an order. The contention by the respondent is that whereas ss 142 and
145 provide criminal
penalties for the contravention of the
Insolvency Act, it was for the National Prosecuting Authority (NPA)
to prosecute such crimes.
The criminal courts must then decide on
such matters based on the merits. It is for that reason, so the
argument went, that the
applicants do not need the High Court to
refer the matter to the NPA for investigation and further, s 142(2)
does not apply to
the assets, known to the trustee. The section is
designed to punish transgressors who fail to disclose to a trustee
the existence
and whereabouts of the insolvent’s assets and
fail to deliver them to the trustee. It is on this basis that
the respondent
argues that the application in Part B is an abuse of
Court process used for an ulterior motive or to intimidate and harass
the
respondent.
[30]
In countering the aforementioned submissions Mr Carstens submitted
that both the common law and
s 21 (1)(c) of the Superior Courts
Act
[15]
authorise
declaratory relief. Contrary to what the respondent alleges in its
answering affidavit, namely, that the High Court lacks
jurisdiction
to grant a declaratory order to the effect that the respondent is
guilty of a criminal offence, without a criminal
trial, the
applicants do not seek such finding. What they are seeking is a
finding that the respondent has contravened sections
142 and 145 of
the Insolvency Act and thereafter to refer the matter to the NPA, an
independent institution, which will decide
whether to institute
criminal proceedings or not.
[31]
The Supreme Court of Appeal in
Langa
CJ and Others v Hlophe
[16]
made
these instructive remarks:
“
[28]
The jurisdiction of a High Court to grant a declaration of rights is
derived from s 19(1)(a)(ii) of the Supreme Court Act.
The Court may,
at the instance of any interested person, enquire into and declare
any existing, future or contingent right or obligation,
notwithstanding that the applicant cannot claim any relief
consequential upon such determination. This involves a two-stage
enquiry:
First, the court must be satisfied that the applicant is a
person interested in an ‘existing, future or contingent right
or obligation’, and then, if satisfied, it must decide whether
the case is a proper one for the exercise of its discretion
(Durban
City Council v Association of Building Societies
1942 AD 27
at 32).”
[A2]
[32]
Mahomed CJ cautioned against abuse of process in
Beinash
v Wixley
[17]
in
these terms:
“
There
can be no doubt that every Court is entitled to protect itself and
others against an abuse of its processes. ……
As was
said by De Villiers JA in Hudson v Hudson and Another
1927 AD 259
at
268:
‘
When…..the
Court finds an attempt made to use for ulterior purposes machinery
devised for the better administration of justice,
it is the duty of
the Court to prevent such abuse.”
What does constitute
an abuse of the process of the Court is a matter which needs to be
determined by circumstances of each case.
There can be no
all-encompassing definition of the concept of ‘abuse of
process’. It can be said in general terms,
however, that an
abuse of process takes place where the procedures permitted by the
Rules of the Court to facilitate the pursuit
of the truth are used
for a purpose extraneous to that objective.”
[33]
Regard being had to the circumstances of this case, I am of the view
that a proper case has been
made out that in the exercise of my
discretion I should find that there has been a contravention of
sections 142 and 145 of the
Insolvency Act. I could not discern any
basis for the respondent’s refusal to release the assets
against the backdrop of
the assurance for its lien not to be
disturbed and the offer to take over the full amount of the
respondent’s claim. It is
only proper that this matter be
referred to the NPA for investigation. It follows that the point
in
limine
pertaining to the lack of jurisdiction for a declarator is
without merit and also stands to fail.
[34]
Coming to the issue of costs
. The general rule is that costs
should follow the result. In the Notice of Motion in both Parts A and
B costs are sought on the
scale as between attorney and own client.
Mr Carstens, in pressing for the punitive order of costs, submitted
that the respondent’s
conduct was wholly unreasonable and to
the detriment of the general body of creditors who have already been
prejudiced by the liquidation
and it was unnecessary to engage in the
current litigation. Mr Van Rensburg on the other hand asked the Court
to dismiss the application
with costs on an attorney and client
scale.
[35]
It is trite that costs are within the discretion of the court, which
must be exercised judicially
upon a consideration of the relevant
facts and must be fair to the parties. In
Public
Protector v South African Reserve Bank
[18]
the
Constitutional Court made the following insightful remarks pertaining
to punitive costs:
“
[221]
This court has endorsed the principle that a personal costs order may
also be granted on a punitive scale. The punitive costs
mechanism
exists to counteract reprehensible behaviour on the part of a
litigant. As explained by this court in Eskom, the
usual costs
order on a scale as between party and party is theoretically meant to
ensure that the successful party is not left
'out of pocket' in
respect of expenses incurred by them in the litigation. Almost
invariably, however, a costs order on a party
and party scale will be
insufficient to cover all the expenses incurred by the successful
party in the litigation. An award
of punitive costs on an
attorney and client scale may be warranted in circumstances where it
would be unfair to expect a party
to bear any of the costs occasioned
by litigation.
[222] The question
whether a party should bear the full brunt of a costs order on an
attorney and own client scale must be answered
with reference to what
would be just and equitable in the circumstances of a particular
case. A court is bound to secure a just
and fair outcome.
[223] More than 100
years ago, Innes CJ stated the principle that costs on an attorney
and client scale are awarded when a court
wishes to mark its
disapproval of the conduct of a litigant. Since then this principle
has been endorsed and applied in a long
line of cases and remains
applicable. Over the years, courts have awarded costs on an
attorney and client scale to mark their
disapproval of fraudulent,
dishonest or mala fides (bad faith) conduct; vexatious conduct; and
conduct that amounts to an abuse
of the process of court.”
[36]
It is warranted in this case for the respondent to bear the full
brunt of a costs order on an
attorney and own client scale. In the
result, the following order is made:
PART A
1.
The applicants are hereby authorised in
terms of
section 18(3)
of the
Insolvency Act, 24 of 1936
as amended,
read with section 386(4) of the Companies Act, 61 of 1973, as
amended, to launch this application.
2.
The applicants are authorised under the
provisions of
section 69
of the
Insolvency Act, 24 of 1936
to enter
properties 39 – 41 Toekoms Street, Upington.
3.
Should the applicants be unable to make
such entry without disturbance, they be and are hereby authorised:
3.1
to engage the services of a locksmith
and/or the South African Police Service members (SAPS) or the
sheriff, as may be necessary,
to remove any obstruction to them from
entering upon the said property;
3.2
to thereafter enter the properties, where
necessary, with the assistance of the SAPS and the sheriff:
3.2.1
to search for any assets, stock, property,
motor vehicles, books, records or documents, computers and office
furniture under the
control of the respondent belonging to JMA
Petroleum CC t/a Gas City [in liquidation];
3.2.2
to take possession of any and all assets,
stock, property, motor vehicles, books, records, documents, computers
and office furniture
belonging to JMA Petroleum CC t/a Gas City or
which may be in possession of the respondent or under its control;
3.2.3
to remove any such assets, stock, property,
motor vehicles, books, records or documents, computers and office
furniture so found
and to hand same over to the applicants and/or
their duly appointed representatives.
4.
For effecting the foregoing, a search
warrant marked Annexure “X” attached to the founding
affidavit is hereby authorised.
5.
The warrant shall be executed in a like
manner as a warrant of search of stolen property and the person
executing the warrant shall
deliver any articles seized thereunder to
the applicants.
6.
The said warrant is to be executed either
by a member(s) of the South African Police Service, alternatively, by
the sheriff of the
court.
7.
Costs of this application be paid by the
respondent on an attorney and own client scale.
2.
PART B
2.1 That the respondent
is in contravention of
section 142(1)
of the
Insolvency Act, 24 of
1936
, as amended, in that the respondent either before or after the
liquidation of JMA Petroleum CC t/a Gas City removed, concealed,
disposed of, or dealt with or received assets belonging to the
insolvent estate with the intent to defeat an attachment by virtue
of
the liquidation or with the intent to prejudice the creditors of the
insolvent estate.
2.2 That the respondent
is in contravention of
section 142
(2) of the
Insolvency Act in
that
the respondent has in its possession and/or under its custody and/or
under its control property that belongs to the insolvent
estate
knowing of the liquidation and that the property belongs to the
insolvent estate.
2.3 That the respondent
is in contravention of
section 145
of the
Insolvency Act, 24 of 1936
,
in that the respondent hindered and still hinders the liquidators and
their representatives in the performance of their functions.
2.4 Notwithstanding the
finding that this Court had in law to make, this matter is remitted
to the National Prosecuting Authority
(NPA) to investigate the
contraventions of
ss 142
and
145
of the
Insolvency Act, 24 of 1936
.
Costs of this
application be paid by the respondent on an attorney and own client
scale.
M.C. MAMOSEBO
JUDGE OF THE HIGH
COURT
NORTHERN CAPE DIVISION
For the
applicant: Adv.
WC Carstens
Instructed
by:
Hertzenberg Attorneys
c/o
Engelsman Magabane Inc
For the
respondents:
Adv. FG Janse Van Rensburg
Instructed
by: Becker
Bergh & More Inc
c/o
Haarhoffs Inc
[1]
24
of 1936, which stipulates: A provisional trustee shall have the
powers and the duties of a trustee, as provided in this Act,
except
that without the authority of the court or for the purpose of
obtaining such authority he shall not bring or defend any
legal
proceedings and that without the authority of the court or Master he
shall not sell any property belonging to the estate
in question.
Such sale shall furthermore be after such notices and subject to
such conditions as the Master may direct.
[2]
61 of 1973, which stipulates: The powers referred to in
subsection (3) are-
(a) to bring
or defend in the name and on behalf of the company any action or
other legal proceedings of a civil nature,
and, subject to the
provisions of any law relating to criminal procedure, any criminal
proceedings: Provided that immediately
upon the appointment of a
liquidator and in the absence of the authority referred to in
subsection (3), the Master may authorise,
upon such terms as he
thinks fit, any urgent legal proceedings for the recovery of
outstanding accounts;
(b) to agree
to any reasonable offer of composition made to the company by any
debtor and to accept payment of any
part of a debt due to the
company in settlement thereof or to grant an extension of time for
the payment of any such debt;
(c) to
compromise or admit any claim or demand against the company,
including an unliquidated claim;
(d) except
where the company being wound up is unable to pay its debts, to make
any arrangement with creditors, including
creditors in respect of
unliquidated claims;
(e) to
submit to the determination of arbitrators any dispute concerning
the company or any claim or demand by or
upon the company;
(f) to
carry on or discontinue any part of the business of the company in
so far as may be necessary for the
beneficial winding-up thereof:
Provided that, if he considers it necessary, the liquidator may
carry on or discontinue any part
of the business of the company
concerned before he has obtained the leave of the Court or the
authority referred to in subsection
(3), but shall not in that event
be entitled, as between himself and the creditors or contributories
of the company, to include
the cost of any goods purchased by him in
the costs of the winding-up of the company unless such goods were
necessary for the
immediate purpose of carrying on the business of
the company and there are funds available for payment of the cost of
such goods
after providing for the costs of winding-up;
(g) to
exercise
mutatis mutandis
the same powers as are by sections
35 and 37 of the Insolvency Act, 1936, (Act 24 No. 24 of 1936),
conferred upon a trustee under
that Act, on the like terms and
conditions as are therein mentioned: Provided that the powers
conferred by section 35 aforesaid,
shall not be exercised unless the
company is unable to pay its debts;
(h) to sell
any movable and immovable property of the company by public auction,
public tender or private contract
and to give delivery thereof;
(i)
to perform any act or exercise any power for which he is not
expressly required by this Act to obtain the leave of the Court.
[3]
Section
142
Removing
or concealing property to defeat an attachment or failure to
disclose property
(1)
Any
person shall be guilty of an offence and liable to imprisonment for
a period not exceeding three years if, either before or
after the
sequestration of an estate, he removes, conceals, disposes of, deals
with or receives any asset belonging to that estate
with intent to
defeat an attachment by virtue of a sequestration order, or with
intent to prejudice the creditors in that estate:
Provided that in
any proceedings for an offence under this sub-section, any such
removal, concealment, disposal of, dealing with
or receipt of assets
which had the effect of defeating or was calculated to defeat such
attachment or which prejudiced or was
calculated to prejudice the
creditors of that estate, shall, unless the contrary is proved, be
deemed to have been committed
with intent to defeat the attachment
or (as the case may be) to prejudice those creditors.
(2)
Any
person who has in his possession or custody or under his control any
property belonging to an insolvent estate and who knows
of the
sequestration of the estate and that the property belongs to it,
shall be guilty of an offence and liable to a fine not
exceeding
R1 000 or to imprisonment without the option of a fine for a
period not exceeding one year if he fails to inform
the trustee of
the estate as soon as possible of the existence and whereabouts of
the property and (subject to the provisions
of section 83) to
deliver it to, or place it at the disposal of, the trustee.
145
Obstructing trustee. –
Any
person who obstructs or hinders a
curator
bonis
appointed under this Act or a
trustee or a representative of either in the performance of his
functions as such shall be guilty
of an offence and liable to a fine
not exceeding R500, or to imprisonment without the option of a fine
for a period not exceeding
six months.
[4]
[1996] ZASCA 23
;
1996 (4) SA 490
(A) at 494G-H
[5]
2021
(6) SA 403
(SCA)
[6]
Case No 6174/2009, Western Cape High Court, (07 December 2010)
[7]
10 of 2013
[8]
General
duties
.
—A liquidator in any winding-up shall proceed forthwith to
recover and reduce into possession all the assets and property
of
the company, movable and immovable, shall apply the same so far as
they extend in satisfaction of the costs of the winding-up
and the
claims of creditors, and shall distribute the balance among those
who are entitled thereto.
[9]
Duku
Above
N.8
[10]
[2005] JOL 15137
(T); (A1290 /04)
[2005] ZAGPHC 71
(25 July 2005) at
para 33
[11]
1988 (2) SA 259 (T)
[12]
61 of 1973
[13]
[2007] ZACC 24
;
2008 (2) SA 472
(CC) at para 22
[14]
See
Diener
v Minister of Justice
2019 (4) SA 374
(CC) at paras 31-32;
see
also
Mostert
v FirstRand Bank
2018 (4) SA 443
(SCA) at 448 D - F
[15]
10 of 2013
[16]
2009 (4) SA 382
(SCA) at para 28;
See
also,
Cordiant
Trading CC v Daimler Chrysler Financial Services (Pty) Ltd
2005 (6) SA 205 (SCA).
[17]
[1997] ZASCA 32
;
1997 (3) SA 721
(SCA) at 734
[18]
2019 (6) SA 253 (CC)
[A1]
This
is the correct ‘
Neutral
citation’
from the SCA itself. However, the SA & All SA Law Reports have
tweaked it slightly as per the tracked suggestion herein.
We suggest
that the Court should consider adopting the SA/All SA law reports
citation. This is so because the
neutral
citation
in its current form may somewhat suggest that this Court is
referring to two individual cases with different citations
altogether.
This suggestion will also ensure consistency in
citations of case law throughout the Judgment
[A2]
We
suggest that the Court considers moving this citation to footnote 18
because it is not part of para 18 of
Langa
CJ
case.
It is however, another instructive case in addition to the
Langa
CJ
case.