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[2021] ZAGPPHC 50
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Umbane Technology CC v Master of the High Court of SA Pretoria Division and Others (14471/18) [2021] ZAGPPHC 50 (9 February 2021)
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
(1)
REPORTABLE: NO
(2)
OF INTEREST TO OTHER JUDGES: NO
(3)
REVISED
09
FEBRUARY 2021
CASE
NO: 14471/18
In
the matter between:
UMBANE
TECHNOLOGY CC
APPLICANT
(REGISTRATION
NUMBER: 2001/154052/23)
and
THE
MASTER OF THE HIGH COURT OF
SA
PRETORIA DIVISION
FIRST
RESPONDENT
(Reference:
T717/16)
MOLAPO
TECHNOLOGY (PTY) LTD
SECOND RESPONDENT
(IN
LIQUIDATION)
ZAHEER
CASSIM
N.O.
THIRD RESPONDENT
KGASHANE
C. MONYELA N.O.
FOURTH RESPONDENT
ANKIA
VAN JAARSVELD N.O.
FIFTH RESPONDENT
GAVIN
BERNARD
HART
SIXTH RESPONDENT
This
judgment is issued by the Judge whose name is reflected herein and is
submitted electronically to the parties/their legal representatives
by email. The judgement is further uploaded to the electronic file of
this matter on Caselines by the Judge or his/her secretary.
The date
of this judgment is deemed to be 09 February 2021.
JUDGMENT
COLLIS
J
INTRODUCTION
[1]
This is a review application wherein the applicant seeks to review
and set aside:
1.1 The decision of
the first respondent to reject the claim of the applicant against the
estate of the second respondent;
1.2 The decision of
the first respondent to disallow the applicant the opportunity to
present further evidence, as the applicant
is entitled to do in terms
of
section 44(7)
of the
Insolvency Act, 1936
, and to postpone the
meeting of creditors for that purpose;
1.3 The decision
refusing a postponement of the meeting for the purposes of 1.2
above.
[1]
[2]
As per the Notice of Motion, the applicant seeks that the reviewed
decision be substituted with the following:
2.1 That the claim
of the applicant as submitted at the Special Meeting of Creditors in
the estate of the second respondent on 8
February 2018, be admitted
into proof against the estate of the second respondent in the amount
of R 2 115 987.06, alternatively
in the reduced amount of R
1 924 125.06;
2.2
In the
alternative to the above
, that a Special Meeting of Creditors be
re-opened and that the decision of the first respondent be set aside
and substituted with
the following order: the Special Meeting of
Creditors is postponed to allow the applicant to supplement its claim
by oral evidence
and documentary evidence in accordance with
Section
44(7)
of the Act;
2.3 That the first
respondent be directed to reconvene the Special Meeting for the
purposes of clause 2.2 above;
2.4 That the sixth
respondent be ordered to pay the costs of the application on an
attorney and own client scale, alternatively
that such costs be costs
in the administration of the second respondent.
[3]
The third, fourth and fifth respondents are cited herein in their
official capacities as the duly appointed joint liquidators
of the
Molapo Technology (Pty) Ltd (In Liquidation).
[4]
Only the sixth respondent opposes this application. The first
respondent has filed a notice to abide by the decision of the
court.
[2]
JURISDICTION
OF COURT TO REVIEW PROCEEDINGS
[5]
In support of its basis for approaching this Court, the applicant
places reliance on the provisions of
section 151
of the
Insolvency
Act, Act
24 of 1936 read with section 339 of the Companies Act.
[6]
In addition, the applicant also places reliance on the provisions of
section 7 of the Promotion of Administrative Justice Act,
3 of 2000
(as amended).
[7]
In Nel and Another NNO v The Master (Absa Bank Ltd and Others
Intervening)
[3]
the court
considered the provisions of
section 151
of the
Insolvency Act
and
held the following:
“
[22] In terms
of
s 151
of the
Insolvency Act read
together with s 339 of the
Companies Act
‘…
.
any
person aggrieved by any decision
, ruling,
order or taxation of the Master…may bring it under review by
the Court….’
South African Courts
have long accepted that the review envisaged by
s 151
of the
Insolvency Act is
the “third type of review” identified
more than a hundred years ago in Johannesburg Consolidated Investment
Company
vs Johannesburg Town Council
where Parliament confers a
statutory power of review upon the Court…….
”
[8]
In Steelnet (Zimbabwe) Ltd v Master of the High Court, Johannesburg
the court and Others (2007/463)
[2008] ZAGPHC 185
(24 June 2008) it
was confirmed that a presiding officer’s adjudication of a
claim, constituted an “administrative
action” as
envisaged by Act 3 of 2000 and as such reviewable.
BACKGROUND
[9]
On 8 February 2018, a special meeting of creditors was convened in
terms of the second respondent. At the said meeting the applicant
was
represented by his attorneys of record.
[10]
It is to be noted that at this meeting the sixth respondent being a
natural person, was not present. He was likewise represented
by his
attorney and counsel.
APPLICANTS
CONTENTIONS
[11]
As per the founding affidavit, the applicant sets out that at the
meeting of creditors so convened, that since the inception
of the
meeting, the sixth respondent had taken the stance that the claim of
the applicant will be objected to.
[4]
[12]
Furthermore, that the applicant’s claim was never disputed
prior to the liquidation of the second respondent or even
during the
first meeting of creditors.
[5]
[13]
That it was at this Special Meeting of Creditors, where the Master
rejected the applicant’s claim, after the sixth respondent
had
raised technical objections against the claim of the applicant, which
included the following:
13.1 The power of
attorney was filed out of time and that the co-member of the
applicant was unable to appoint a further person.
[6]
13.2 That there were
no invoices submitted for an amount of R 191 862.00 out of a
total amount of R 2 115 987.08
against the second
respondent for work in progress.
[7]
13.3 As to the
remainder of the claim, it was averred that the claim was lacking in
particulars as there were no source documents
attached.
[8]
13.4 The agreement
entered into between the applicant and the sixth respondent was only
signed by the applicant and not the sixth
respondent.
[9]
[14]
In support of its claim, the applicant had confirmed by means of a
statement made under oath, which was not disputed by the
sixth
respondent. The statement contains a date of entry, a reference of
purchase order and invoice reference.
[10]
[15]
The sixth respondent has also not disputed that invoices were issued
for services/work rendered by it to the second respondent.
SIXTH
RESPONDENTS CONTENTIONS
[16]
On behalf of the sixth respondent the following objections/defences
were raised.
16.1 The sixth
respondent is a proved creditor of the second respondent and as such
it had the necessary
locus standi
to object to the attempts
made by the applicant to prove the claim. In proving its claim before
the Master, the applicant carried
the
onus
to prove its claim
and no
onus
rests on the sixth respondent.
16.2 The sixth
respondent denied that it only raised defences of a ‘technical
nature’ against the applicant’s
claim and that the real
foundation for its opposition related to the merits proper of the
matter, i.e. whether the applicant was
really a creditor of the
second respondent.
[11]
16.3 The sixth
respondent explained that the applicant had failed to supplement its
claim form by attaching to the claim form a
proper motivation on
affidavit in order to properly explain, motivate and prove the
claim.
[12]
16.4 The applicant
further avers that in circumstances where a claim is rejected by the
Master, the applicant would not be without
remedy. The applicant
would be at liberty to institute action proceedings against the
second respondent to establish its claim,
instead of invoking the
provisions of the
Insolvency Act.
HREF="#_ftn13" NAME="_ftnref13">[13]
16.5 In addition the
sixth respondent places reliance on certain clauses contained in the
governing agreement between the parties,
which regulated the
contractual agreement between them and which clauses, the sixth
respondent avers, the applicant had failed
to comply with.
[14]
16.6 Furthermore,
upon receipt of Bundle X the sixth respondent was unable to find any
quotation as is required by the agreement
and there was also no
completion certificate.
[15]
It is on this
basis therefore that it contended that the Master was correct in
rejecting the applicants’ claim.
APPLICABLE
LAW
[17]
It is trite that a presiding officer must examine a claim, carefully
but that such presiding officer is not required to adjudicate
upon a
claim, as if it were a court of law.
[16]
[18]
Such presiding officer should examine the proof of claim documents
for the purpose of deciding whether they disclose
prima
facie
the existence of an enforceable claim.
[17]
[19]
A claimant further need not attach source documents for its claim,
but is required to confirm such claim under oath in compliance
in a
form corresponding substantially with Form C or D of the First
Schedule of the
Insolvency Act.
[18
]
[20]
The admission of a claim by the presiding officer, is only
provisional, as under
s 45(3)
the trustee may dispute the claim
notwithstanding its admission by the presiding officer. Furthermore,
that a presiding officer
does not adjudicate upon the claim as if he
were a court of law, he is not required to examine a claim too
critically or to require
more, than prima facie proof.
[19]
[21]
Thus, unless the claim is on the face of it bad - for example, it may
ex facie be prescribed - the presiding officer, in my
opinion, should
not reject it without hearing the creditors evidence 44(7).
[22]
Apparent from the above, it is thus clear, that the test for a claim,
to be admitted by a presiding officer, is not
onerous
. The
Insolvency Act as
well as the Companies Act, has provided sufficient
safeguards where claims have to be investigated by the appointed
liquidators
in terms of section 45(3).
ANAYSIS
[23]
At the said meeting the Master of the High Court initially indicated
that the applicant had proven a claim against the second
respondent,
prima facie, at least to the extent of R 1 924 125.06. The
Master later however in the same meeting had a
change of heart and
rejected the claim
in
toto.
[20]
[24]
This reversal of the decision of the Master was not denied by the
sixth respondent, save to allege that the claim of the applicant
is
bogus and hatched between a husband and wife.
[25]
Having regard to the authorities referred to above, it is clear, that
the claim as submitted by the applicant was sufficient
for its
approval, and if the Master was not inclined to approve the entire
claim, then he ought to adjourn the proceedings and
afford the
applicant an opportunity to present evidence either oral or through
documents in support of its claim. This request
was indeed made to
the Master and simply rejected without being given any due
consideration.
[26]
In the present application, the Master was invited to present this
Court with his report, which would ordinarily give the Court
guidance
as to what informed his reasoning and motivation.
[27]
In his report so filed
[21]
the Master
merely stipulated that the supporting vouchers to the claim for
approval were insufficient and that he is not aware of
any facts
which would be of relevance to this application.
[28]
By merely stating that the supporting vouchers were insufficient
(
thus drawing a conclusion
) and failing to explain the reasons
that informed the conclusion so reached by him, this court is not
placed in a position to determine
whether his reasons were in fact
cogent.
[29]
The reasoning employed by the Master is paramount to this Court, as
this Court has to review his decision and is not called
upon to usurp
his administrative function.
[30]
In casu
, as already mentioned, no additional explanation was
furnished by the Master setting out to what extent the supporting
vouchers
presented by the applicant was unsatisfactory or what other
documentation ought to have been provided by the applicant in order
for him to properly assess its claim. In terms of the enabling
legislation this obligation rested on the Master as the presiding
officer of the creditors meeting.
[31]
The applicant, as mentioned, alleges that initially the Master held
the view that a claim amount if R 1 924 125.06
was proven
against the second respondent, but during the same meeting he later
held a different view.
[32]
What informed this different view, this Court is none the wiser and
in the absence thereof, is left to speculate as to what
informed his
reasoning.
[33]
In the alternative to the relief sought in the Notion of Motion, the
applicant seeks that the Special Meeting of Creditors
be re-opened
and that the decision of the Master be set aside and that the Special
Meeting of Creditors be postponed to allow the
Applicant an
opportunity to supplement its claim in terms of section 44(7) of the
Act. In the circumstances, I am of the opinion
that this will be the
most appropriate order to give under he prevailing circumstances.
COSTS
[34]
As to the appropriate costs order to be awarded, section 151
bis
of the Act, specifically provides that where a Court confirms a
decision of a Master on review that such costs of an applicant
shall
not be paid out of the assets of the estate concerned unless the
Court otherwise directs. In the present instance, the decision
of the
Master is hereby set aside and accordingly the appropriate order of
the Court is to order the costs to be, costs in the
administration of
the estate of the second respondent.
ORDER
[35]
Consequently, the following order is made:
35.1 The following
decisions of the first respondent taken on 8 February 2018 at a
meeting of creditors of second respondent held
at the Master Pretoria
are reviewed and set aside:
35.1.1 The decision
of the first respondent to reject the claim of the applicant against
the estate of the second respondent;
35.1.2 The decision
of the first respondent to disallow the applicant the opportunity to
present further evidence, as applicant
is entitled to do in terms of
Section 44(7)
of the
Insolvency Act. 1936
and to postpone the meeting
of creditors for that purpose;
35.2 The decision
refusing a postponement of the meeting for purposes of 35.1.2 above.
35.3 That the
reviewed decisions be
substituted
with the following order:
35.3.1 The first
respondent is directed to reconvene a Special Meeting of Creditors
for the purpose of allowing the applicant an
opportunity to present
further evidence in accordance with
Section 44(7)
of the
Insolvency
Act, 1936
.
35.3.2 Costs to be
costs in the administration of the estate of the second respondent.
C.J. COLLIS
JUDGE
OF THE HIGH COURT
Appearances
For
the Applicant
: Adv. S. J. Van Rensburg SC
Attorney
for the Applicant
: Tintingers Incorporated
& Mathys
Krog Attorneys
For
the Sixth Respondent
: Adv. C. Richards
Attorney
for the Sixth Respondent : Leahy Attorneys INC.
Date
of Hearing
:
24 August 2020
Date
of Judgment
: 09 February 2021
Judgment
transmitted electronically.
[1]
Notice of Motion Index 001-2
[2]
Notice to Abide Index 006-4
[3]
2005 (1) SA 276 (SCA)
[4]
Founding Affidavit Index 001-12 para 10
[5]
Founding Affidavit Index 001-20 para 27
[6]
Founding Affidavit Index 001-13 para 12
[7]
Founding Affidavit Index 001-13 para 13.1
[8]
Founding Affidavit Index 001-14 para 13.3
[9]
Founding Affidavit Index 001-14 para 13.3
[10]
Founding Affidavit Index 001-14 para 14.1
[11]
Answering Affidavit Index 003-5 para 9
[12]
Answering Affidavit Index 003-6 para 12
[13]
Answering Affidavit Index 003-7 para 14. See also the decision
Chappell v The Master & Others 1928
CPD
289
[14]
Answering Affidavit Index 003-8 to 10 para 18-23
[15]
Answering Affidavit Index 003-9 to 10 para 20 -23 and Index 003-13
to 14 para 34-35
[16]
Cachalia v De Klerk NO and Benjamin NO 1952 (4) SA 672 (T) 675
[17]
Steelnet supra
[18]
Swart v Die Waarnemende Assistant-Meester van die Hooggeregshof Case
No: 23459/95
[19]
Cachalia supra
[20]
Founding Affidavit Index 001-10
par
a
5.1.
[21]
Master’s Report Index 006-8