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[2021] ZALMPPHC 71
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Makhopa and Others v Master of the High Court Polokwane and Others (6791/2021) [2021] ZALMPPHC 71 (19 October 2021)
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IN
THE HIGH COURT OF SOUTH AFRICA
(LIMPOPO
DIVISION, POLOKWANE)
CASE NO: 6791/2021
(1)
REPORTABLE:
YES/NO
(2)
OF
INTEREST TO THE JUDGES: YES/NO
(3)
REVISED.
In
the matter between:
MATSHAROGA
LORDWICK MAKHOPA
FIRST APPLICANT
PENNY
GEOFFREY
KHOSA SECOND
APPLICANT
WELMA
ADELAINDE
UBISI THIRD
APPLICANT
NGWANABJALA
JACOBETH LENTSOANE FOURTH
APPLICANT
ELIZMA
DESIRE JO-ANNE VAN DER WESTHUIZEN
FIFTH APPLICANT
REFILOE
MATALJI SIXTH
APPLICANT
JOHN
FREDERICK
HUME
SEVENTH APPLICANT
MANTSIBI GAME RANCH
(PTY) LTD EIGHTH
APPLICANT
(REG
NO: 1996/013503/07)
And
MASTER
OF THE HIGH COURT POLOKWANE
FIRST DEFENDANT
MARYNA
ESTELLE SYMES N.O
SECOND RESPONDENT
JOHANNES
ZACHARIAS HUMAN MULLER N.O
THIRD RESPONDENT
PULENG
FELICITY BODIBE N.O
FOURTH RESPONDENT
MUSTUFA
MOHAMED N.O
FIFTH RESPONDENT
SUMAIYA
ABDOOL GAFAAR KAMMISSA SIXTH
RESPONDENT
LINDIWE
FLORENCE
KAABA SEVENTH
RESPONDENT
NURJEHAN
ABDOOL GAFAAR OMAR
EIGHTH RESPONDENT
MT
SELEKE
NINTH RESPONDENT
NEWINVEST
56 (PTY) LTD
TENTH RESPONDENT
(REG
NO: 2000/001629/07)
SOUTHERN
SKY COMMERCIAL PROPERTIES
ELEVENTH RESPONDENT
(REG
NO: 2005/038559/07)
SHAMIRA
RINDERKNECHT TWELFTH
RESPONDENT
(ID
NO: …..............)
SOUTHERN
SKY DEVELOPMENTS (PTY) LTD THIRTEENTH
RESPONDENT
(REG
NO: 2005/042887/07)
SOUTHERN
SKY RESIDENTIAL PROPERTIES
FOURTEENTH
RESPONDENT
(REG
NO: 2006/017584/07)
SOUTHERN
SKY ESTATE (PTY) LTD FIFTEENTH
RESPONDENT
(REG
NO: 2006/017592/07)
SOUTHERN
SKY
WILDLIFE SIXTEENTH
RESPONDENT
(REG
NO: 2006/017595/07)
SOUTHERN
SKY HOTEL & LEISURE (PTY) LTD
SEVENTEENTH RESPONDENT
(REG
NO: 2006/005152/07) (IN LIQUIDATION)
JUDGMENT
MAKGOBA
JP
[1] The
Applicants seek an interlocutory interdict against the First and
Ninth Respondents, on an urgent
basis, in terms of Part A of the
Notice of Motion.
[2]
In the interim the Applicants seek relief in
Part A of the application pending the finalization of Part
B of the
application, the latter application being in effect a review and
setting aside of certain actions by the Master of this
Court.
[3]
In the interim the Applicants seek relief to
interdict and restrain the First Respondent (“the Master”)
from issuing the certificate of final appointment in respect of
liquidators of a company in liquidation, Southern Sky Hotel and
Leisure (Pty) Ltd (“the company in liquidation”).
The
Applicants also seek relief that pending Part B of the application
the powers of the provisional liquidators shall remain of
full force
and effect pending Part B.
[4] The
relief sought by the Applicants is in terms of the provisions of
section 151 of the Insolvency
Act 24 of 1936 (“the
Insolvency
Act&rdquo
;) which provides as follows:
“
151
Review
Subject
to the provisions of section fifty-seven any person aggrieved by any
decision, ruling, order or taxation of the Master or
by a decision,
ruling or order of an officer presiding at a meeting of creditors may
bring it under review by the court and to
that end may apply to the
court by motion, after notice to the Master or to the presiding
officer, as the case may be, and to any
person whose interests are
affected: Provided that if all or most of the creditors are affected,
notice to the trustee shall be
deemed to be notice to all such
creditors; and provided further that the court shall not re-open any
duly confirmed trustee’s
account otherwise than as is provided
in section one hundred and twelve.”
The
Applicants contend that they are aggrieved persons as envisaged in
terms of
section 151
of the
Insolvency Act.
>
The
Parties
[5] The
First to Sixth Applicants are employees of the company in
liquidation, alleging to have claims
against the company in
liquidation.
The
Seventh and Eighth Applicants allege to be creditors. A mortgage
bond, in order to secure his claim; has been registered in
favour of
the Seventh Applicant over immovable property of the company in
liquidation.
[6] The
First Respondent is the Master. The Second to Fifth Respondents are
the existing provisional
liquidators.
The
Sixth to Eighth Respondents are the final liquidators purportedly
appointed by the Master at the creditors’ first meeting
held on
03 September 2021.
The
Ninth Respondent is the official in the offices of the Master who
presided over the first meeting of creditors and members held
on 03
September 2021.
[7] All
of the Tenth to Seventeenth Respondents are companies under control
of the Twelfth Respondent,
Mrs Shamira Rinderknecht who was the force
behind the affairs of the company in liquidation (Seventeenth
Respondent) when it financially
collapsed and ultimately liquidated.
[8] The
Tenth to Sixteenth Respondents oppose this application.
The
Master and the Ninth Respondent have not filed any papers in order to
oppose the application.
The
Second to Fifth Respondents (existing provisional liquidators) have
filed a report in order to assist the Court on the adjudication
of
this application.
Review
in Part B of the Application
[9] In
Part B the Applicants seek a review and a setting aside of various
decisions taken by the Master
on 03 September 2021. Those decisions
are namely:
9.1.
The decision to reject the claims of the Applicants;
9.2.
The decisions to admit the claims of the Tenth to Sixteenth
Respondents;
9.3.
The decision to allow the alleged creditors who proved claims to vote
for the appointment of a final liquidator on loan accounts
claims;
and
9.4.
To allow voting at the members’ meeting, without the Master
having been satisfied that the members’ register of
the company
in liquidation is properly before the Master and/or by failing to
satisfy itself that Mrs Rinderknecht is in fact the
sole member of
the company.
Factual
matrix
[10] The
company in liquidation was finally wound-up on 21 January 2020. After
protracted litigation the application
for business rescue was
dismissed by this Court on 03 June 2021, and coincidentally an
application for leave to appeal against
the dismissal of the business
rescue application was also dismissed on 03 September 2021, the very
same day on which the first
meetings of creditors and members were
convened.
[11] It
is undisputed that the Second to Fifth Respondents were properly
appointed as provisional liquidators and
that their history includes
an attempt to have an enquiry as contemplated in
section 417
read
with section 418 of the Companies Act 61 of 1973, held which enquiry
was aimed at interrogating the Twelfth Respondent (Mrs
Rinderknecht)
as the director of the company in liquidation, i.e the Seventeenth
Respondent. This did not occur
inter
alia
as a result of the business rescue application that was brought and
ultimately dismissed by this Court on 03 June 2021.
[12] It
is common cause from the papers that the publication of notice of the
first meeting of creditors on 06
August 2021 was not at the
insistence of the provisional liquidators but at the insistence of
the First Respondent (the Master).
At the time of the publication of
the notice of the meeting the liquidation process was still suspended
by the business rescue
application which was still pending until this
Court dismissed the application for leave to appeal on 03 September
2021.
It
is trite law that the first meeting in the winding-up of a company
consists of a meeting of creditors and a meeting of members.
These
meetings are for the purpose of considering the statement of the
company’s affairs, proof of claims against the company
and the
nomination and appointment of a person(s) as final liquidators.
[13] The
Seventh and Eighth Respondents or their legal representatives did not
even know of the date of the meeting
of creditors. Although they had
already lodged their claims, they did not attend the meeting of
creditors on 03 September 2021
to present their claims and
interrogate the claims of other creditors, like the Tenth to the
Sixteenth Respondents.
It
is common cause that at the creditors meeting of the 3
rd
September 2021 the claims of all the Applicants herein were rejected
whilst the claims of the Tenth to Sixteenth Respondents were
admitted
by the Master.
[14] The
Seventh and Eighth Applicants contend that had they been present at
the creditors meeting the claims of
all the Applicants and the Tenth
to Sixteenth Respondents would have been investigated prior to the
acceptance and/or rejection
thereof, with its concomitant impact on
the right to vote for a final liquidator. It is common cause that at
the aforesaid meeting
of creditors on 03 September 2021 the Sixth to
Eighth Respondents were appointed as final liquidators, and this in
the absence
of major creditors like the Seventh and Eighth
Applicants.
[15] The
provisional liquidators raised their concerns against the claims of
the Tenth to Sixteenth Respondents
and the qualified financial
statements in support thereof. Despite these concerns the Ninth
Respondent proceeded to accept the
claims without the opportunity
given the provisional liquidators to enquire as to the veracity of
the claims. Similarly, other
creditors were not given the opportunity
to investigate the veracity of the claims.
The
provisional liquidators further raised concern pertaining to the
absence of the share register at the meeting and indicated
lack of
success in obtaining a copy of the share register at the registered
address of the Seventeenth Respondent. Despite this
concerns the
Ninth Respondent accepted the share certificate handed to him on face
value alone.
[16] The
voting process and the appointment of the final liquidator followed
despite a request by creditors present
for a postponement to review
the proceedings of the meeting held on 03 September 2021.
[17] Despite
these allegations being made, no answer has been filed on behalf of
the First and/or Ninth Respondents.
The failure to reply to these
allegations levelled by the Applicants and to a large extent
confirmed by the provisional liquidators
(the Second to Fifth
Respondents) strengthens the Applicants’ case.
Issues
[18]
The issues for determination are:-
1.
Urgency;
2.
Whether
the Applicants have made out a case for interim relief.
[19] The
Tenth to Sixteenth Respondents contend that:-
19.1.
The matter is not urgent. That the Applicants can obtain substantial
redress in the ordinary course.
19.2.
The Applicants are not entitled to the relief sought. The Applicants
have not satisfied any, or all of the requirements for
interim
relief.
19.3.
Even if the Applicants have satisfied the requirements for interim
relief, the Court ought to in the exercise of its discretion
refuse
the relief sought by the Applicants.
19.4.
The Applicants’ application ought to be struck off the roll for
want of urgency, or, if found to be urgent, dismissed,
with costs.
Urgency
[20] In
their opposition of this application the Tenth to Sixteenth
Respondents raised the issue of urgency. That
this matter is not
urgent and that it be struck from the roll. The Applicants contend
that this matter is urgent and correctly
so in my view.
[21] This
matter is clearly urgent. The impugned decisions of the Master have
been made only on 03 September 2021.
Prior to bringing this
application the Applicants sought an undertaking from the Master
that, pending the finalization of a review
application to be launched
or on before 10 September 2021, that the Master would not, pending
the application, appoint final liquidators.
No such undertaking had
been forthcoming.
[22] Counsel
for the Applicants correctly submitted that if effect is given to the
voting which took place on 03
September 2021, a travesty of justice
will occur and the Applicants would be prejudiced particularly in
circumstances where certain
gross and egregious irregularities have
occurred relating to the first meeting of creditors and members.
[23] In
my view the inherent nature of interlocutory interdictory relief
dictates that it be sought and obtained
on an urgent basis. The
purpose of seeking an interlocutory interdict pending the
finalization of another process will be defeated
if it is not sought
on an urgent basis. The Applicants would not be able to receive
substantial redress in due course. The horse
would have bolted.
[24] This
application was issued within thirteen calendar days, and as soon as
possible, after conclusion of the
first meeting of creditors. In my
view none of the Applicants dragged their feet in the bringing of the
application, and it cannot
seriously be suggested that the Applicants
created their own urgency.
This
application was also not brought on an extremely urgent basis, and
all the Respondents herein were provided ample opportunity
to file
their papers and thus respond to the application well in time before
the date of hearing of this application.
[25] In
the circumstances I hold that a proper case has been made out for
urgency in support of prayer 1 of Part
A of the notice of motion.
First
Creditors Meeting on 03 September 2021
[26] The
Applicants question the lawfulness of the meeting held on 03
September 2021. It was argued on behalf of
the Applicants that it
would have been at least very unusual if not outright irregular on
the part of the Master to convene a first
meeting of creditors and
members at the time where there was still an application for business
rescue pending. It is common cause
that the meeting was advertised in
the Gazette on 06 August 2021. The issue that arises is whether the
Master, having regard to
the non-concluded litigation seeking relief
in the form of business rescue practitioner being appointed, was
legally empowered
to proceed to give notice of the first meeting of
creditors.
[27] It
is trite that a pending business rescue application (
in casu
,
the application for leave to appeal keeping it alive) causes the
provisions of
Section 131(6)
of the
Companies Act 71 of 2008
to
remain in effect.
The
section provides that:
“
131(6)
If liquidation proceedings have already been commenced by or against
the company at the time an application is made in terms
of subsection
(1), the application will suspend those liquidation proceedings
until:
(a)
the
Court had adjudicated upon the application; or
(b)
the
business rescue proceedings end, if the Court makes the order applied
for.”
[28]
In
casu
,
as at the time the Master convened the meeting the adjudication upon
the application for business rescue had not been finalised
as the
application for leave to appeal suspended the order of the Court,
dismissing the application for business rescue.
[29] In
GCC
Engineering (Pty) Ltd & Others v Maroos & Others
[1]
the Supreme Court of Appeal gave some clarification on the meaning of
Section 131(6)
and
inter
alia,
held
that an application for business rescue does not oust the provisional
liquidators from office and return the management back
to the
directors. The Court held that the provisional liquidators still
retain their function to preserve the assets of the company
in
liquidation. As to what is suspended the Court gave the following
answer:
“
What
is suspended is the process of winding-up and not the legal
consequences of a winding-up order.”
[30] In
paragraph [19] of the
Maroos
judgment,
the Court deals pertinently with the term liquidation proceedings and
as follows:
“
[19]
I find the appointment, office and powers of the provisional
liquidators are not suspended. In
s131(6)
the legislature used the
word “suspend”, which does not mean termination of the
office of the liquidator. In my view
the term “liquidation
proceedings” refers only to those actions performed by a
liquidator in dealing with the affairs
of a company in liquidation in
order to bring about its dissolution. What is suspended is the
process of winding up and not the
legal consequences of a winding-up
order.”
[31] In
the light of the above legal exposition, the Master did not have
authority to give notice of the first
meeting of creditors. The
dismissal of the application for leave to appeal on the day of the
first meeting (03 September 2021)
did not cure this material defect
as a step in the liquidation proceeding was taken whilst the
liquidation proceeding was suspended.
Having
regard to
section 131(6)
of the
Companies Act, the
liquidation
proceedings could not be advanced by the Master prior to finality of
the business rescue application.
[32] I
am of the view that the first meeting of creditors held on 03
September 2021 could not have been convened
and published and as a
result the proceedings of such meeting are irregular.
The
Tenth and Sixteenth Respondents take issue that this point was not
taken at the meeting with the Ninth Respondent presiding.
I
agree with the submission made by Counsel for the provisional
liquidators that the failure to take a point regarding the irregular
nature of the proceedings does not magically turn an unlawful process
and procedure into a lawful process. The failure to object
does not
grant powers to the Master to give notice of the meeting when no such
powers existed at the time when notice of the meeting
was given. The
Master had no power to convene the meeting in the light of the
suspension of the liquidation proceedings.
[33] The
point regarding the irregularity in convening the first meeting of
creditors is a point of law and failure
to raise that before the
Ninth Respondent does not detract from the reviewability of the
process followed and the decisions made
at the meeting.
The
meeting remains irregular and is not a meeting convened in terms of
the regulations. In the result, this renders the remainder
of the
decisions taken and the process followed and resolved similarly
irregular and unlawful.
Interim
Relief
[34]
The requirements for interim relief are well-established.
An
applicant must establish:
34.1.
a
prima facie
right even though open to some doubt;
34.2.
a well-grounded apprehension of irreparable harm if the interim
relief is not granted;
34.3.
the balance of convenience must favour the applicant; and
34.4.
there must be an absence of an alternative remedy.
[35] In
Breedenkamp
v Standard Bank of SA Ltd
[2]
Jajbhay J summarized the trite requisites of an interlocutory
interdict at paragraphs 42 to 45 as follows:
“
[42]
An interim interdict is by definition a court order preserving or
restoring the status quo pending the final determination
of the
rights of the parties. It does not involve a final determination of
these rights and does not affect their final determination.
The
dispute in an application for an interim interdict is therefore not
the same as that in the main application to which the interim
interdict relates. In an application for an interim interdict the
dispute is whether, applying the relevant legal requirements,
the
status quo should be preserved or restored pending the decision of
the main dispute. At common law, a court’s jurisdiction
to
entertain an application for an interim interdict depends on whether
it has jurisdiction to preserve or restore the status quo.
It does
not depend on whether it has the jurisdiction to decide the main
dispute.
[43]
That the test is a nuanced one appears from the judgment of Holmes J
in Olympic Passenger Service (Pty) Ltd v Ramlagan
1957 (2) SA 382
(D), in which he held (at 383C-G):
“
It
thus appears that where the applicant’s right is clear, and the
other requisites are present, no difficulty presents itself
about
granting an interdict. At the other end of the scale, where his
prospects of ultimate success are nil, obviously the Court
will
refuse an interdict. Between those two extremes fall the intermediate
cases in which, on the papers as a whole, the applicants’
prospects of ultimate success may range all the way from strong to
weak. The expression prima facie established though open to
some
doubt seems to me a brilliantly apt classification of these cases. In
such cases, upon proof of a well-grounded apprehension
of irreparable
harm, and there being no adequate ordinary remedy, the Court may
grant an interdict – it has a discretion,
to be exercised
judicially upon a consideration of all the facts. Usually this will
resolve itself into a nice consideration of
the prospects of success
and the balance of convenience – the stronger the prospects of
success, the less need for such balance
to favour the applicant: the
weaker the prospects of success, the greater the need for the balance
of convenience to favour him.
I need hardly add that by balance of
convenience is meant the prejudice to the applicant if the interdict
be refused, weighed against
the prejudice to the respondent if it be
granted.”
[44]
In Fedsure Life Assurance v Worldwide African Investment Holdings
(Pty) Ltd and Others
2003 (3) SA 268
(W) Cloete J stated the
requirements for an interim interdict:
“
Where
the right asserted on the strength of which an interim interdict is
sought is not clear, the position is as follows according
to Eriksen
Motors (Welkom) Ltd v Protea Motors, Warrenton, and Another
1973 (3)
SA 685
(A) at 691C-G:
“
The
granting of an interim interdict pending an action is an
extraordinary remedy within the discretion of the Court. Where the
right which it is sought to protect is not clear, the Court’s
approach in the matter of an interim interdict was fiducially
laid
down by Innes JA in Setlogelo v Setlogelo
1914 AD 221
at 227. In
general, the requisites are –
(a)
a
clear right which, ‘though prima facie established, is open to
some doubt’;
(b)
a
well-grounded apprehension of irreparable injury;
(c)
the
absence of ordinary remedy.
In
exercising its discretion, the Court weighs, inter alia, the
prejudice to the applicant, if the interdict is withheld, against
the
prejudice to the respondent if it is granted. This is sometimes
called the balance of convenience.”
[45]
The foregoing considerations are not individually decisive, but are
interrelated, for example, the stronger the applicant’s
prospects of success, the less his need to rely on prejudice to
himself. Conversely, the greater the element of ‘some doubt’,
the greater the need for the other factors to favour him. The court
considers the affidavits as a whole, and the interrelation
of the
foregoing considerations, according to the facts and probabilities.”
Whether
the Applicants made out a case for interim relief
[36] The
central theme of the Applicants and the joint provisional liquidators
is that the Master (the Ninth Respondent)
unduly favoured Ms
Rinderknecht (Twelve Respondent) legal representatives in making the
decisions that the Master did at the meetings,
that the outcome of
the meetings was predetermined and a very one-sided affair and that
the Master was biased and afforded the
legal representatives of Ms
Rinderknecht preferential treatment.
[37] The
Applicants state that the meetings were plagued by the following
irregularities:
1.
the
unusual circumstances whereby the meetings were advertised and
convened;
2.
no
access prior to the commencement of the meetings by the Applicants
and the provisional liquidators to the claims submitted to
the Master
in order for the claims against the company in liquidation to be
copied and inspected, whereas the Rinderknecht companies
had such
access;
3.
the
Master (the Ninth Respondent) not postponing the meetings in order to
allow inspection and copying of the claims submitted to
the Master;
4.
the
Master (the Ninth Respondent) being wrong in upholding the objections
by the legal representatives of the Rinderknecht companies
to, and
was wrong in rejecting the claims of the Applicants;
5.
the
Master (the Ninth Respondent) being wrong in not upholding the
objections by the provisional liquidators to the claims of
Rinderknecht
and the Rinderknecht companies as these claims were
premised upon qualified financial statements;
6.
the
Master (the Ninth Respondent) being wrong to have refused the request
by the provisional liquidators that the creditors meeting
be
postponed to allow the provisional liquidators to bring an
application for review of the decisions of the Master;
7.
the
Master (the Ninth Respondent) being wrong to allow the Rinderknecht
legal representatives to vote at the creditors meeting to
nominate
the Sixth, Seventh and Eighth Respondents as final liquidators
because the Rinderknecht claims should have been rejected;
8.
the
Master (the Ninth Respondent) being wrong to allow the Rinderknecht
legal representatives to vote at the members’ meeting
to
nominate the Sixth, Seventh and Eighth Respondents as final
liquidators.
The
Applicant’s
prima facie
rights, for purposes of the
present application, emanate from the fact that they are all
creditors of the company in liquidation
(the Seventeen Respondent).
The
Seventh Applicant is in fact a secured creditor, with a secured and
preferent claim against the insolvent estate of the Seventeenth
Respondent. The Seventh Applicant’s claim amounts to R
12 361 768.57 and is secured by a mortgage bond registered
in favour of the Seventh Applicant given by the Seventeenth
Respondent on 12 October 2015.
[38] The
basis upon which the Master apparently (and unlawfully) rejected the
Seventh and Eighth Applicants’
claims and the criticism
expressed against these claims in the opposing papers are without
substance. It is suggested that these
claims could not be determined
at the first meeting of creditors because they are damages claims and
not liquidated claims. This
is against the letter and spirit of
section 44
of the
Insolvency Act which
provides for the proof of
liquidated and unliquidated claims.
The
criticism and basis upon which the Seventh and Eighth Applicants’
claims were rejected lacks a legal foundation.
[3]
[39] In
their capacity as creditors of the Seventeenth Respondent, the
Applicants had an undeniable right in terms
of
section 44
of the
Insolvency Act, to
prove their respective claims against the
insolvent estate of the Seventeenth Respondent , to specifically
appear at the first
meeting of creditors of the estate, and to give
evidence in support of their claims to the satisfaction of the
officer presiding
at the meeting, i.e the Ninth Respondent. They also
in terms of section 44(7) of the Act, have the right to call upon any
person
present at the meeting, who wishes to prove a claim against
the insolvent estate to take an oath, and to submit such person to
interrogation. The Applicants also had a
prima
facie
right to be informed of the date of the first meeting of creditors.
It is common cause that in the present case the Seventh and
Eighth
Applicants were not notified of the meeting and could not attend such
an important meeting.
[40] It
is common cause that the Applicants’ claims were rejected at
the first meeting of creditors. The
Applicants did not have the
opportunity provided for in section 44(4) and 44(7) of the Act to
prove their claims at the first meeting
of creditors on the 3
rd
September 2021. The Seventh and Eighth Applicants did not even have
any knowledge of the date of the meeting.
As
a result, the Seventh and Eighth Applicants were irreparably deprived
of
(1)
the
right to be represented at the first meeting of creditors in order to
prove their claims and to give evidence in support thereof;
(2)
the
right to participate in the election of the liquidators;
(3)
their
right to call upon the Tenth to Sixteenth Respondents to be submitted
to interrogation in regard to their claims.
[41] In
Aircondi
Refrigeration v Ruskin NO and Others
[4]
the
following was said at 803G to 804B:
“
In
terms of
s 44
of the
Insolvency Act 24 of 1936
, a claim made against
an insolvent estate shall be proved at a meeting of the creditors of
that estate to the satisfaction of the
officer presiding at that
meeting, who shall admit or reject the claim (ss (3)). Every such
claim shall be proved by affidavit
in the prescribed form and shall
contain the matters set out in ss (4). The officer
presiding at any meeting of creditors
may call upon any person
present at the meeting who wishes to prove or who has at any time
proved a claim against the estate, to
take an oath, to be
administered by the said officer and to submit to interrogation by
the said officer (ss (7)). The presiding
officer may summon any
person who wishes to prove or who has at any time proved a claim
against the estate to appear before him
at a place and time stated in
the summons for the purpose of being interrogated by the said officer
(ss (8)).
From
these provisions it appears that there are two elements in the proof
of a claim:
(a)
The
submission of an affidavit in the prescribed form; and
(b)
The
satisfaction of the officer presiding at the meeting that it is
valid.
No
objection was taken in the present case to the form of the affidavit.
In regard to (b) the presiding officer performs a quasi-judicial
function (cf Aspeling and Another v Hoffman’s Trustee
1917 TpD
305
at 306 – 7). As such he must exercise an independent
judgment. Unless a claim is on the face of it bad, he should not
reject
it without hearing the creditor’s evidence under ss (7).
(See: IIsely v De Klerk NO and Another
1934 TPD 55.)
It seems that a
creditor is entitled to have his claim considered without any
evidence being heard except his own under a
s 44
(7). (See: Peach v
Stewart NO and Another
1929 WLD 228
at 223.)”
[42] Accordingly,
the Ninth Respondent could not reject the Seventh and Eighth
Applicants’ claims as the
Master in fact did, without hearing
the evidence of these Applicants. The Applicants were deprived of the
right to give evidence
at the first meeting and will suffer
irreparable harm if the interim relief is not granted, and the
ultimate relief is eventually
granted.
The
aforementioned deprivation of the Applicants’ rights constitute
a well-grounded apprehension of irreparable harm, if the
interim
relief is not granted and the ultimate relief is eventually granted.
[43] In
my view, if the interlocutory interdict in this matter is granted
pending the finalization of the review
relief, no prejudice will be
suffered by the Respondents. Even if the review relief ultimately
fails, the Respondents would have
lost nothing.
However,
the contrary is true, if the interlocutory interdict is not granted.
In
the circumstances, the balance of convenience favours the granting of
an interlocutory interdict.
[44] It
was argued on behalf of the Respondents that the Applicants have an
alternative remedy in the sense that
they will have further
opportunities to prove the claims at a subsequent meeting of
creditors. There is no merit in this submission.
In my view the
rights to be executed and exercised during the first meeting of
creditors vary in nature and extent from the rights
to be exercised
at subsequent and further meetings of creditors. It is common cause
that final liquidators have been nominated
during the first meeting.
The Applicants have lost their opportunity to participate in the
appointment of final liquidators and
will never regain this lost
opportunity unless the decision of the Master is reviewed and set
aside.
Accordingly,
the rights that the Applicants may exercise in future and at the
future meetings of creditors do not constitute alternative
remedies.
[45] Part
A of the notice of motion is concerned with restoring the
status
quo ante
if the review is eventually granted, in order to re-vest
the Applicants with the rights that they were deprived of during the
first
meeting of creditors, in particular the right to testify in
support of their claims. The Applicants would not be afforded the
opportunity
to partake in the selection of liquidators if they only
prove their claims at the second and further meetings of creditors.
Similarly,
there is no alternative remedy to afford the Applicants the
opportunity of interrogating the Tenth to Sixteenth Respondents
in
respect of their claims, now that their claims have been accepted.
The
suggestion that alternative remedies are available to the Applicants
is not in touch with reality and it is accordingly rejected.
Conclusion
[46] The
Applicants have established each of the jurisdictional requirements
to succeed with an interlocutory interdict.
In
all the above circumstances I am satisfied that a proper case has
been made out for an interim relief sought by the Applicants.
Order
[47] In
the result the following order is granted:
1.
Pending
finalisation of Part B of this application, the first and ninth
respondents are interdicted and restrained from issuing
a certificate
of final appointment and to finally appoint the sixth, seventh, and
eighth respondents as joint liquidators of Southern
Sky Hotel and
Leisure (Pty) Ltd (in liquidation), Masters Ref L14/20 (“the
company in liquidation”);
2.
That
pending finalisation of Part B of this application, the
status
quo
with
reference to the appointment and powers of the provisional
liquidators shall remain in full force and effect, and pending
finalisation of Part B, the provisional liquidators shall continue
with their normal functions and duties as provisional joint
liquidators of the company in liquidation.
3.
That
the tenth to sixteenth respondents be ordered to pay the applicants
and the second to fifth respondents costs of this application,
such
costs to include the employment of two counsel, one of which is a
senior, and where applicable.
_________________________
E M MAKGOBA
JUDGE PRESIDENT OF THE HIGH COURT,
LIMPOPO DIVISION, POLOKWANE
APPEARANCES
Heard on
: 12
October 2021
Order pronounced
on : 12
October 2021
Judgment
delivered on :
19 October 2021
For the 1
st
to 6
th
Applicants : Adv
MP Van der Merwe SC
Adv
J Hershensohn
Instructed
by : Vermaak
Beeslaar Attorneys Inc
c/o
Steytler Nel Attorneys
For the 7
th
& 8
th
Applicants
: Adv
GF Heyns SC
Adv
C Jacobs
Instructed
by
: Seymore Du Toit &
Basson Inc
For the 2
nd
,
3
rd
, 4
th
& 5
th
Respondents
: Adv GJ Scheepers SC
Instructed
by : Barnard
& Patel Inc
c/o
Steytler Nel Attorneys
For the 10
th
to 16
th
Respondents : Adv
EL Theron
SC
Instructed
by : Mendelson
Attorneys Inc
c/o
Kampherbeek & Pogrund Attorneys
[1]
2019 (2) SA 379 (SCA).
[2]
2009 (5) SA 304 (GSJ).
[3]
See
Cachalia v De
Klerk NO and Benjamin NO
1952 (4) SA
672
(T) at 678 A-G; and
Klein NO v
Kolosus Holdings Ltd
and Another
2003
(6) SA 198
(T) at paragraphs 66 to 67.
[4]
1981 (1) SA 799
(W).