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HIGH COURT OF SOUTH AFRICA
(GAUTENG DIVISION, PRETORIA)
CASE NO: 48555/2011
(1) REPORTABLE: NO.
(2) OF INTEREST TO OTHER JUDGES: NO
(3) REVISED.
DATE: 13 FEBRUARY 2025
SIGNATURE
In the matter between:
JOHANNES STEPHANUS WESSELS N.O . First Applicant
VERA MARIA WESSELS N.O . Second Applicant
JOHANNES STEPHANUS WESSELS Third Applicant
JOHANNES STEPHANUS WESSELS N.O. Fourth Applicant
SEBASTIAAN JACOBUS WESSELS N.O. Fifth Applicant
JOSANDRA PAUW N.O. Sixth Applicant
CHANE WESSELS N.O. Seventh Applicant
BAREND JACOBUS DU TOIT N.O . Eighth Applicant
and
ESTATE L ATE ESIAS JOHANNES JANSE VAN
RENSBURG N.O. First Respondent
FAROUK SHA RIEF N.O. Second respondent
THE MASTER OF THE HIGH COURT, PRETORIA Third Respondent
ABSA BANK LTD Fourth Respondent
RAND MERCHANT BANK Fifth Respondent
MANDLA PROFESSOR MADLALA N.O. Sixth Respondent
THE COMPANIES AND INTELLECTUAL
PROPERTY COMMISSION Seventh Respondent
MABAL INGWE SHAREBLOCK Eighth Respondent
Summary: The principal applicants are the trustee s of trusts who are shareholders
of a company in liquidation – they sought relief aimed at setting aside
the final windin g-up of the company – the applicants alleged that all
proven creditors have been paid and that a settlement had been
reached with the only remaining creditor, ABSA – however, there
remained three principal aspects relating to the winding up still
outstanding and in dispute – these were whether the fees of the
erstwhile liquidators had been forfeited, what the extent of the current
liquidator’s fees were and whether another creditor’s cl aim for levy
payments due to it , constituted po st-winding up expenses or not –
Found: n ot appropriate that these windin g-up related issues have to be
litigated upon af ter the termination of a winding -up process sought in
terms of section 354 of the Companies Act 61 of 1973, which remained
operative by virtue of Item 9 of Schedule 5 of the Companies Act 71 of
2008 – Application dismissed with an appropriate order for costs.
ORDER
The application is dismissed with costs, such costs to include the employment
of senior counsel.
__________________________________ ______________________________
J U D G M E N T
__________________________________ ______________________________
The matter was heard in open court and the ju dgment was prepared and author ed by
the j udge whose name is reflected herein and is handed down electronicall y by
circulation to the parties’ legal representatives by email and by uploading it to the
electronic file of this matter on Caselines. The date fo r hand -down is deemed to be
13 February 2025 .
DAVIS , J
Introduction
[1] Boschpoort Ondernemings (Pty) Ltd (in liquidation) ( Boschpoort ) has three
shareholders: the Hanne s Wessels Family Trust, the Maba lingwe Trust and the
Wille m Wessels Trust. The principal applicants are the trustees of these trusts .
Johannes Stephanus Wessels (Mr Wessels) is an applicant in his personal capacity
as well. Relying on a settlement agreement reached with ABSA Bank Ltd (ABSA ),
which the applicants allege is the only remaining unpaid creditor , they sought to have
the winding -up proceedings set aside. The application was launched in terms of
section 354 of the Companies Act1. The alternative relief for the placement of
Boschpoort in busine ss rescue, had been jetissoned .
The law relating to section 354
[2] Section 354 (1) provides that a court may, at any time after the
commencement of a winding -up, “… on proof to the satisfaction of the court that all
proceedings in relation to the winding -up ought to be … set aside … ”, make an order
staying or setting aside “the proceedings”.
1 61 of 1973, which section is operative by virtue of Item 9 of Schedule 5 of the Companies Act 71 of
2008.
[3] A court may act as a foresaid on an application by a member of the company
in liquidation and may have regard to the wishes of creditors “… as proved to it by
any sufficient evidence ”2.
[4] What are the factors that a court must consider when gra nting or refusing an
application for rescission of a winding -up process in terms of section 354? The
answer has been given b y this court as follows in Klass v Contract Interior s CC (in
liquidation ) and others ( Klass )3:
“[65.2] The court should ordinarily not set aside a winding -up where
creditors or the liquidators remain unpaid or inadequate
provision has been made for the payment of their claims.
[65.3] Where the claims of the liquidator and all creditors have been
satisfied, the court should have regard to the wishes of the
members, unless those members have bound themselves not to
object to the setting -aside order, or the member concerned will
receive no less as a result of the order sought than would be the
case if the company remained in liquidation.
[65.4] In deciding whether or not to grant a setting -aside order, the
court should, where appropriate, have regard to issues of
‘commercial morality’, ‘the public interest’ and whether the
continuation of the winding -up proceedings would be a
‘contrivance’ or render the winding -up ‘the instrument of
injustice’. ”
[5] Insofar a s Leenberg A J in Klass had found that a court’s discretion “… is
practically unlimited”, the Suprem e Court of Appeal has held that the test for setting
aside a winding -up order on the basis of subsequent events, is “whether the
applicant has proved facts that show that it is unnecessary or undesirable for the
winding -up to continue. This does not involve a choice between permissible
2 Section 354 (2).
3 Klass v Contract Interiors CC (In liquidation) and others 2010 (5) SA 40 (W), a decision on which
both parties relied ( Klass ).
alternatives [such as where a true discretion is involved]. The test is either satisfied
or it is not ”4.
[6] In Ex parte Strip M ining (Pty) Ltd : In re Natal Coal Exploration Company Ltd
(In liquidation) ( Kanga Group (Pty) Ltd intervening)5, the same court has held that
the expression “ proof to the satisfaction of the court” refers to “the normal standard
of proof of the facts w hich are to lead the court to ho ld that the winding -up ought to
be set aside ”.
[7] In determining whether the requisite standard of proof has been attained in
motion proceedings where final relief is sought, which is the case here, the Plascon -
Evans -principle6 finds application where there are disputes of fact.
The applicants’ case
[8] For present purposes it is not necessary to deal with issues of locus standi
and joinder, which have featured in previous skirmishes between the parties7 and it
will suffice to proc eed on the basis that the principal applicants, representing various
trusts which are all shar eholders and therefore the “members” of Boschpoort , have
been entitled to launch the present application.
[9] The applicants alleged that all the creditors of Boschpoort at the time of
liquidation have either been paid or would be paid and there is no need for
Boschpoort to be further wound up .
[10] The applicants alleged that, when the winding -up order had been granted,
Boschpoort only had two creditors, Rand Merchant Bank (or a related entity in the
First Rand Group ), in the amount of some R10 million and ABSA in the amount of
some 34 million. Up to that ti me Boschpoort had conducted the business of running
lodges and nature reserve s at Mabalingwe, Bela Bela, Aldam and Ho edspruit.
4 Commissioner, South African Revenue Service v Nhonyka and others 2023 (6) SA 145 (SCA).
5 1999 (1) SA 1086 (SCA).
6 After Plascon -Evans Paints Ltd v Van Riebeeck Paints (Pty) Ltd 1984 (3) S 623 (A) which, with
reliance on Stellenbosch Farmer’s Winery Ltd v Stellenbosch Winery (Pty) Ltd 1957 (4) Sa 234 (C),
dictates that an applicant can only succeed in such circumstances if the facts stated by the
respondent together with those facts stated by the applicant which have not been denied, entities the
applicant to the relief sought.
7 And which have resulted in judgment s by Bokaka AJ and Retief J.
[11] The applicants allege d that, during the course of their tenure , the respective
co-liquidators from time to time, have liquidated some R54 million of assets, which
was more than enough to cover all Boschpoort’s debts. On this proposition, all the
creditors could have been paid .
[12] The accounting appeared to have not turned out as simple as this. Rand
Merchant Bank (also referred to by the applicants as First Rand Bank) only received
with a divide nd of R2 173 505, 94. It is alleged that it has content ed itself with this
rather paltry repayment and did not oppose the current application, despite having
been cited as the fifth respondent.
[13] In respect of ABSA (being the liquidating creditor) who had been cited as the
fourth respondent , the applicants relied on a purported settlement agreement. The
proposed settlement agreement, was intended to be reached between the current
remaining liquidator, Mr Madlala, Mr Wessels in his capacity as director of
Boschpoort, the trustees of the Hannes Wessels Family Trust, Absa and First Bank
Rand Ltd t/a FNB (supposedly also being Rand Me rchant Bank) . The signe d copy
annexed to the applicant s’ founding af fidavit , however appears to have only been
signed on behalf of ABSA and by Mr Wessels, both in his personal capacity and in
his capacity as trustee of his family trust, together with Mrs Vera Maria Wessels.
Neither the remaining liquidator nor First Rand Ban k (or the fifth respondent) has
signed the agreement.
[14] The settlement agree ment i tself is an intricate affair. I t recorded that ABSA
had proven 5 claims in the winding -up process, totaling R36 765 987, 80 and that
First Rand Bank (also trading as FNB) had proven two claims, totaling R10 819 263,
21.
[15] It lists as “ remaining claims”, those claims or costs “ to be charged against the
Company, and which to be best of the knowledge of the parties ar e the only
remaining claims against the Company ”. This appears to be quite a list. It reads as
follows:
“2.6.16.1 ABSA: A claim of R4 000 000.00 being a remaining
secured claim after having received advance dividends of
R33 436 245.05 on 5 proven secured claims i.o.r
respectively:
2.6.16.1.1 an overdraft facility under account number
1[...];
2.6.16.1.2 a residential development loan under
account umber 7[...] (paid in full);
2.6.16.1.3 mortgage loan agreement under account
number 8[...] (paid in full);
2.6.16.1.4 mortgage loan agreement under account
number 8[...] (paid in full); and
2.6.16.1.5 mortgage loan agreement under account
number 8[...];
2.6.16.2 Mabalingwe: A claim of R3 278 222 for levies being a
post liquidation administration cost;
2.6.16.3 Mabalingwe: A claim of R3 039 896 49.00 for levies being
a concurrent claim;
2.6.16.4 Erstwhile Liquidators: A claim of R12 597 553.00 for
liquidator’s fees being a post liquidation administration
costs in respect of:
2.6.16.4.1 Encumbered Asset Account number 1:
R3 167 586.48;
2.6.16.4.2 Encumbered Asset Account number 2:
R1 217 331.82;
2.6.16.4.3 Encumbered Asset Account number 3:
R84 714.27;
2.6.16.4.4 Encumbered Asset Account number 4:
R474 553.74;
2.6.16.4.5 Encumbered Asset Account number 5:
R1 661 111.41;
2.6.16.4.6 Encumbered Asset Account number 6:
R1 565 161.10;
2.6.16.4.7 Encumbered Asset Account number 7:
R2 299 023.07;
2.6.16.4.8 Free Residue Account R2 128 067.11 ”.
The claims listed in paras 2.6.16.2 and 2.6.16.3 were labelled “the Mabalingwe
claims”.
[16] As “remaining assets” in Boschpoort, only two items are listed, namely “Cash
Funds” meaning funds held by the liquidators in the estate account, estimated at
R14,2 million and a cost s order obtained against Mr Wessels. There is also a
reference to a costs order obtained by Mr Wessels against Boschpoort. Neither of
these two costs orders have been quantified.
[17] As a recordal, the settle ment agreement stated that the M aster has disallowed
fees of the erstwhile liquidators in the amount of R1 710 000,00 on 11 September
2017 and R12 597 533.00 on 11 April 2019. In respect hereof, the agreement states
that the time periods for review of these decisions had already lapsed.
[18] The agreement was made subject to the setting aside of the winding -up
proceedings, for which purpose the liquidator would supply a supporting affidavit.
None has been supplied.
[19] The settlement mechanism envisaged in the agreement was formulated as
follows:
“5.1.1 Absa’s advanced dividends R33 436 246.05 is hereby made
final;
5.1.2 FNB’s advanced dividends of R2 173 505.94 is hereby made
final;
5.1.3 The Liquidator will distribute the Cash Funds by making the
following payments:
5.1.3.1 An amount of R4 000 000.00 to Absa into its
nominated bank account;
5.1.3.2 His fees as taxed by the Master and provided for in
section 384 of the Companies Act 61 of 1973 (or
as agreed between the parties), into his nominated
bank account in respect of liquidation fees;
5.1.3.3 The balance of the cash in the estate shall be
transferred to Boschpoort Ondernemings (Pty) Ltd,
into it nominated bank account after which the
bank account will be closed ”.
[20] The settlement agreement further envisaged that “the following aspects
remain in dispute” and that Boschpoort, Mr Wessels and the Hannes Wessels Family
Trust, reserve their rights to further litigate these “aspect s”, namely: all the issued A
class shares in a related company, Gorcum Farm S hareblock Ltd (with its principal
place of business a t Mabalingwe), the costs orders against Mr We ssels, the disputed
liquidator’s fees of R12 597 553.00, the taxation of the liquidator’s attorney’s fees,
the “Mabalingwe claims”, and “any other dispute between the Company and the
initial liquidators” (the “Company” is a reference to Boschpoort).
[21] The settlement agreement also recorded an extensive set of securities
whereby A BSA’s claims had been secured (called the “Boschpoort securities).
These included cov ering mortgage bonds over units in the scheme known as
Mabalingwe 2 and over 3 other immovable properties not related to the Mabalingwe
development. Other securities included notarial bonds, a general claim relating to
3[...] M[...] N[...] R[...] B[...] [...] shares and suretyships furnished by the Ma balingwe
Trust, the Hannes Wess els Family Trust and by Mr Wessels.
[22] The crucial term of the settlement agreement relating to these securities is
clause 7.2 thereof, which reads as follows: “ On payment of the settlement amount of
R4 000 000.00 to Absa, Absa shall release all Boschpoort securities and sureties of
any Boschpoort liabilities … on demand ”.
[23] As is apparent f rom the judgment of Retief J, when she dealt earlier during the
litigation process with the issue of non -joinder of all the shareholders of Boschpoort,
the applicants have then already jettisoned the alternative relief initially sought by
them, that is for Boschpoort to be placed in business rescue.
The opposition to the section 354 application
[24] As a starting point, the attorneys for the second respondent directly disputed
the allegation by Mr Wessels (repeated in the settlement agreement) that the Master
had disallowed the fees of the erstwhile liquidator s, which had been removed and of
which one had passed away, leading to the executor in his deceased estate
featuring as first respondent. They also denied the allegation that these fees had
been “forfeited”. This denial appears to be correct and is substantiated by the
Master’s own comment on this issue in its affidavit delivered in respect of an
unsuccessful contempt of court application launched by Mr Wes sels on 21 October
20218. There in the Master stated the following: “ Wessels also deals with the
percentages the liquidators are allowed to claim fees and the Wes sels objection
amounts to its own taxation of the liquidators’ fees and as stated in my ruling, the
Master will consider and tax a reasonable fee in accordance with the prescribed tariff
B … the taxation of the account falls within the exclusion jurisdiction of the Master …
My ruling on the objection is that the liquidators; fees will be taxed in accordance
with tariff B ”.
[25] It is common cause that, to date this taxation had not yet taken place.
[26] There appears to also be dispute as to the fees of the current liquidator (the
sixth respondent).
[27] In respect of t he eighth respondent’s claim s for arrear levies o wed to it by
Boschpoort , this has not been attack ed by the applicants insofar as the actual
amount thereof concerned, nor has there been any attack on the actual basis
thereof, i.e. the fact that levies had been due and payable. The only attack of any
substance was the applicants’ contention that these levies should not form part of
the costs of the administration of the winding -up process. Despite the liquidators
having been running the business of Boschpoort during the winding -up process ,
thereby becoming liable for the payment of levies, the applicants averred that this
8 The application was for alleged contempt of the Master of an order of Wanless AJ (as he then was)
in case no 65015/2018 on 14 February 2020 whereby the Master was ordered to comply with certain
obligations, not relevant to the current dispute.
claim should (at least in part) have been proven separately as a claim in the
insolvent estate and, since that hasn’t been done, it has become unenforceable.
[28] This court is not called upon to settle the above dispute, it is enough to note
that even the applicants, in clauses 2.6.16.2, 2.6.16.3 and 5.2.1.6 of the proposed
settlement agreement, acknowledged that the eighth respondent’s claim s would
remain the subject of further litigation, should the winding -up be set aside.
[29] In respect of the claim of First Rand Bank (or Rand Me rchant Bank) , it is to be
noted that it had not signed the settlement agreement. It has (only) by way of a letter
from its attorneys, annexed to the applicants’ papers, withdrawn its ob jection to the
first liquidation and distribution account (in terms of which it was awarded a divided
of R2 13 505, 94). There is no evidence of what its position was or would have
been, had the first liquidation and distribution account in fact been a final account. In
fact, it had expressly been stated by the then liquidators at the time (including the
second respondent) that “ this is not a final plan of distribution, there being … further
assets … 1 x motor vehicle, section 1 of the Sectional Title Scheme known as
Mabalingwe 10 …Gorcum shares … bills of costs against Mr Hannes Wessels …
dividends from Boschpoort Management (Pty) Ltd (in liquidation) ”. There is also no
proper explanation for the alternating identification (or citation) of this creditor as
either First Rand Ban k or Rand Merchant Bank.
Evaluation
[30] The applicants allege that ABSA has already received payment of the capital
amount due to it and remains only an unpaid creditor in respect of the interest
portion of its claim.
[31] The applicants concluded the founding affidavit delivered on their behalf in
respect of the subject of payment by alleging that, once ABSA is paid R8 million in
respect of its claim for interest, then, of the some R14 million in the estate account,
there would be R6 million left “… to serve as security for the sixth respondent’s (i.e.
the current liquidator) claim for liquidator’s fees ”.9
9 Par 4.17 of the founding affidavit.
[32] Despite clause 5.1.3.2 of the proposed settlement agreement making
provision for the payment liquidator’s fees, after taxation thereof by the Master, no
provision has been made for payment of the erstwhile liquidators fees, as and when
taxed.
[33] The proposition of the applicants is therefore that the remaining funds in the
estate account be distributed to the liquidating creditor and the current liquidator and
that all other claims (including the costs order against Mr Wessels) either fall by the
wayside or become the subject matter of further litigation .
[34] Apart from the questions remaining as to First Rand Bank’s acquiescence to
this, the settlement agreement envisages extensive and diverse litigation about
claims exceeding millions of rands. One can readily foresee extensive disputes
looming about locus standi , prescription and the interaction between these claims
and how they fitted into the winding -up and taxation process es, with no immediately
discernable e nd to the ensuing litigation. I f anything, the current litigation and the
numerous interlocutory and other skirmishes, resulting in voluminous papers through
which the court had to wade, only serve to confirm that this would be the position .
[35] Should the relief sought by the applicants be granted, it would result therein
that, despite the winding -up process being terminated, outstanding claims against
(and by) Boschpoort would have to be “liquidated” or determined by way of further
litigation and not by a winding -up process. Should this be tolerated by a Court? I
think not.
[36] The following principle enunciated in Klass , referred to by both parties and
quoted i n par 4 above, bears repetition , namely that the court “… should ordinarily
not set aside a winding -up where creditors or the liquidators remain unpaid or
inadequate provision had been made for the payment of their claims ”. I find that that
is the position here.
[37] Insofar as the applicants alleged that the claims of the erstwhile liquidators
and the eighth respondent are disputed , the n one should add a rider to the
abovementioned principle extracted from Klass to the effect that winding -up
proceedings should not be set aside until such time as all disputes regarding
disputed claims (including the taxation of fees) have been resolved , whether by
litigation, determination by the Master or otherwise.
[38] In addition to the above reasons for refusing the relief, u ntil such time as the
disputes referred to above have been resolved, a court can also not properly
determine other issues relating commercial morality or public interest as referred to
in Klass .
[39] The continuation of the current winding -up process would therefore not be
“unnecessary or undesirable”10.
Conclusion
[40] In these premises, I therefore find that the application should fail. I find no
grounds to deviate from the customary order that costs should follow the event.
Order
[41] In the circumstances, the following order is made.
The application is dismissed with costs, such costs to include the employment
of senior counsel.
N DAVIS
Judge of the High Court
Gauteng Division, Pretoria
Date of Hearing: 1 November 2024
Judgment delivered : 13 February 2025
10 CSARS v Nyhonyha and others 2023 (6) SA 145 (SCA) at [22] which, incidentally, overruled Klass
insofar as the latter had held (in par 65.1) that the court had a “practically unlimited” discretion.
APPEARANCES:
For the Applicant : Adv F. G Janse van Rensburg
Attorney for the Applicant : Haasbroek & Boezaart Attorneys,
Pretoria.
For the Respondent : Adv B. H Swart SC
Attorney for the Respondent : Jaco Roos Attorneys , Pretoria