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IN THE HIGH COURT OF SOUTH AFRICA
(FREE STATE DIVISION. BLOEMFONTEIN)
In the matter between:
ALTERNATIVE FINANCE SOLUTIONS (PTY) LTD
and
MASTER OF THE FREE STATE HIGH COURT,
BLOEMFONTEIN
ELRICH RUWAYNE SMITH N.O.
ADEL DOREEN McQUARRIE N.O.
STANDARD BANK OF SOUTH AFRICA Not Reportable
Case Number: 4006/2024
Applicant
First Respondent
Second Respondent
Third Respondent
Fourth Respondent
Neutral citation: Alternative Finance Solutions (Pty) Ltd v Master of the Free
State High Court, Bloemfontein, 4006/2024
Coram: Daffue, J
S. Grobler, AJ
Heard on: 19 March 2025
Delivered on: 27 March 2025
This judgment was handed down electronically by circulation to the parties' representatives
by email and release to SAFLII. The date and time for hand-down is deemed to be 14H00
on 27 March 2025.
Summary: Application for leave to appeal
/
2
ORDER
1. The application is dismissed with costs, the costs of counsel to be on scale C.
JUDGMENT
[1] This is an application for leave to appeal against an order we granted on 13
February 2025. The Applicant contends we have erred in material respects
and concerning our judgment on the claim 17 dispute.
[2] Four essential grounds of error are advanced, stating firstly, we had erred in
finding that the Master had properly exercised his discretion in relation to
whether or not the liquidators had been entitled to admit claim 17. Secondly,
it is contended that the Master had exercised his discretion improperly, as he
did so without knowledge that the liquidators had not examined the
documents put up to show compliance with s 45 of the New Companies Act.
Thirdly, and in light of the new evidence disclosed in the answering affidavits
(dealt with extensively in the judgment), we had erred in not reviewing and
setting aside the decision.
[3] Lastly, we had erred in not finding that the documents which purported to
constitute compliance with s 45 did not constitute proof of such compliance
at all.
[4] Much reliance was placed upon the decisions of Trust Bank of Africa v
Muller N.O. and Another 1979 (2) SA 368 (D) and Muller N.O. v Trust
Bank of Africa Ltd and Another 1981 (2) SA 117 (NPD). Mr Hitchings
argued that these decisions both indicate that we were wrong in finding that
the actual objection we were called upon to decide is not the one that served
3
before the Master. Mr Hitchings further submitted that even if we were
correct in finding the difference in the actual objection, the matter should
have been remitted to the Master to decide the objection afresh.
[5] As to the latter contention, I do not think that we could have done so in the
absence of a finding of irregularity. The referral of the matter to the Master
again would have been consequent relief upon a primary finding of an
irregularity. We could not make such a finding. And in any event, we were
not asked for such relief, notwithstanding the obvious problems the Applicant
faced with the apparent dispute of fact and the attempt to make its case in
reply.
[6] As to the first contention, I do not think that another court would come to a
finding that the objection raised to the Master was the same advanced in this
court. In Trust Bank supra, Page AJ dismissed a point in limine raised
similar to what we effectively allowed in the present matter, because the
court there found that the fresh grounds sought to be relied upon in the
application had been fully canvassed before the Master, in part in the written
representations prior to his decision and in part in the affidavits filed in
support of an application to amend the Notice of Motion subsequent to his
decision. In the present matter there was no application to amend the Notice
of Motion and no further evidence was advanced in the form of an affidavit.
[7] Further to this, there is no indication that the factual basis advanced in the
reply to undo the liquidators' decision had served before the Master for
consideration . That is because the Bank stated in its affidavit that it only
instructed its attorney of record in the present proceedings to provide the
correct resolutions to the liquidator after the application was launched.1 The
Master could not have been appraised of the actual facts for ventilation in
this way.
1 Record p 528, para 8.8 and 8.9.
4
[8] And to the extent that it is argued -as per the grounds of the proposed
appeal -the Master shouldn't have allowed all this, the answer I believe still
lies in the sui generis nature of proceedings in terms of s 407. I have
explained my reasoning on that in the judgment extensively and I shan't
regurgitate it herein.
[9] It follows that the application should be dismissed and the following order is
made:
1. The application for leave to appeal is dismissed with costs, such costs
to include the costs of counsel on scale C. r
■ : -,.
I concur.
On behalf of the applicant: Adv Hitching1s
On instruction of: HJ Booysen Attorneys
BLOEMFONTEIN
On behalf of 2nd and 3rd Respondents: Adv Tsangarakis
On instruction of: Rossouws Attorneys
BLOEMFONTEIN
On behalf of the 4th Respondent: Adv Ziestman SC
On instruction of:
Phatsoane Henney Attorneys
BLOEMFONTEIN DAFFUE, J