IN THE HIGH COURT OF SOUTH AFRICA
WESTERN CAPE DIVISION, CAPE TOWN
Case number: 4425/24
In the application between:
THOMAS CHRISTOPHER VAN ZYL N.O.
First Applicant
DEIDRE BASSON N.O. Second Applicant
In their capacities as duly appointed final liquidators of
Senqu Coal Trading (Pty) Ltd,
Registration No: 2018/043976/07)
and
COMETA TRADING (PTY) LTD
Respondent
(Application seeking disposition in terms of s 3 41(2) of
the 1973 Companies Act )
Before: The Hon. Mr Acting Justice Montzinger
Hear d: 17 March 2025
Judgment delivered electronically: 1 7 March 2025
JUDGMENT
(LEAVE TO APPEAL)
Montzinger AJ
Summary Introduction
1. The respondent, Cometa Trading (Pty) Ltd, applies for leave to appeal against
my judgment of 14 November 2024. In that judgment, I granted relief in favour
of the applicants, the liquidators of Senqu Coal Trading (Pty) Ltd (“Senqu”),
who approached the court seeking an order to recover a disposition of
R710,763.92, paid to Cometa after the commencement of Senqu’s winding -
up.
2. The application for leave to appeal was noted in time already on 5 December
2024 . However, due to administrative hurdles and the temporary nature of my
appointment , my tenure as an Acting Judge having come to an end , I was not
initially aware that Cometa had filed the application.
3. The application for leave to appeal is premised on section 16(1)(a)(i), read
with section 17(1) and (6) of the Superior Court s Act1. Cometa’s basis for
seeking leave is essentially that the appeal would have a reasonable prospect
of success or that there are compelling circumstances justifying the granting
of leave.
4. The application for leave is opposed.
The g rounds relied on why leave should be granted
5. The application for leave to appeal suggests that, although I correctly
identified the four requirements for granting relief in terms of section 341(2) of
the 1973 Companies Act, I erred in concluding that the liquida tors had
established all these grounds.
1 10 of 2013
6. Section 341(2) provides for the requirements for establishing a voidable
disposition. The party claiming a disposition must show that ( i) a disposition
was made; (ii) by the company (iii) of property that belong to the company to
be wounded -up (iv) and that the company was unable to pay its debts after
the commencement of the winding -up.
7. The liquidators plainly met two of these requirements, as it was undisputed
that (i) a disposition was made, and (ii) it occurred a fter the commencement of
Senqu’s winding -up. Cometa takes issue with the remaining two
requirements, and that is where it contends I committed errors.
8. First, it was argued , by Mr. Jonker on behalf of Cometa , that I never made a
finding on whether the disposition was in fact made by Senqu, claiming my
judgment dealt only with whether the funds belonged to Senqu. As in the main
hearing, emphasis was placed on applying the Plascon -Evans rule to resolve
factual d isputes. I am criticised for not having applied the rule correctly;
Cometa contends that, had I done so, I would have found that on its version
(which I was bound to accept):
8.1 The transfer of funds on which the liquidators relied was effected by
Cometa, not Senqu, because at the time Senqu had no control or
management over the funds in the bank account.
8.2 When the funds were transferred, Ms. Lourie (who actually executed
the payment via internet banking) did not do so as a duly authorised
representative of Sen qu, nor did Senqu’s Board of Directors authorise
her to transfer the funds.
9. Second, regarding whether the funds (or property) belonged to Senqu, I
apparently failed to consider that, on a Plascon -Evans approach to the facts ,
the legal relationship between Senqu and Cometa was such that Senqu, as
the named account holder, merely held the account as Cometa’s agent. I am
criticised for overlooking that Senqu was a dormant, non -trading entity with no
interest or control over the deposits and withdrawals in the bank account ,
while Cometa, with Senqu’s knowledge, maintained full control over and
operated the account with Senqu’s consent.
10. Reliance was placed on the judgment of McEwen, NO v Hansa2 to argue that
I should have recognised the agency relationship and by not doing so I
allowed “the insolvent’s creditors to reap the benefit of that which was in truth
never legally vested in the insolvent himself…” .
11. Third, Cometa says a compelling reason for granting leave exists because the
matter raises an important question about what constitutes a disposition by
“the company” , particularly where the company is dormant and has ceased
trading.
12. Fourth, Cometa contends that another compelling reason for leave is whether,
on these facts, Senqu was an agent of Cometa and whether that agency was
terminated by insolvency. Cometa argues that this has an e ffect on whether
the funds can be said to be Senqu’s “property” as contemplated by section
341(2) of the 1973 Com panies Act.
13. I will briefly outline the requirements for granting leave to appeal before
addressing each ground.
Requirements for leave to appeal to granted
14. The Superior Courts Act3 and case law4 from courts higher up in the decision
making hierarchy requires me to assess, dispassionately and by reference to
the facts and law, whether an appellate court could reasonably arrive at a
different conclusion. Also, as articulated in Ramakatsa5, Senqu as the party
seeking leave to appeal must show, on proper grounds, a sound, rational
basis for concluding that there is a reasonable rather than a remote chance of
2 1968 (1) SA 465 (A) at 472A - B
3 10 of 2013
4 Minister of Justice and Constitutional Development and Others v Southern Africa Litigation Centre
and Others [2016] ZASCA 17 ; 2016 (3) SA 317 (SCA);
5 Ramakatsa v African National Congress (Case no 724/2019) (“Ramakatsa”)
success on appeal. In my view this means that the merits of the case remain
crucial to determin e whether a realistic prospect of success ex ists. A bare or
speculative contention of error is insufficient; the applicant must establish a
credible premise for believing that another court could arrive at a different
outcome.
15. Furthermore, an applicant can also seek leave on the basis that there are
compelling reasons that justify leave being granted6. Compelling reasons
include, among others, the involvement of substantial public interest, an
important question of law, differing judicial interpretations, or a discrete issue
of statutory interpretat ion with implications for future cases7. However, where
it is proposed that compelling reasons exist why leave should be granted, I am
required to consider the compelling reasons also in conjunction with the merits
of the appeal, which remain often decisive8.
16. Therefore, a court considering an application for leave to appeal must first
decide whether there is a sound, rational basis to conclude that another court
would uphold the appeal. I n considering whether compelling reasons exist that
warrant a ppellate interference, the court may grant leave on that basis, but not
without due regard to the merits.
17. In my reading of the application for leave to appeal I identif ied two grounds in
support of the contention that an appeal would have good prospects of
success and two further grounds why compelling circumstances justify that
leave to appeal should be granted.
Ground 1: No finding whether the disposition was in fact made by Senqu
18. I am not persuaded that this ground warrants that leave be granted.
6 Section 17(1)(a) of the Superior Court Act
7 Van Lo ggerenberg: Erasmus Superior Court Practice (3rd ed) Vol 1 D106 -108
8 Caratco (Pty) Ltd v Independent Advisory (Pty) Ltd 2020 (5) SA 35 (SCA) at para 2
19. In the main judgment, I explained that I am bound by the legal position that
funds in a company’s bank account belong to that company. I addressed this
under the heading “The status of mo ney in a bank account,” referring to
the Whitehead9 judgment. Later in the main judgment , when evaluating the
facts and law, I found that it was undisputed that the R710,763.92 was held in
a bank account registered to Senqu10. I also concluded that while Cometa
might have treated the 706 -account as its own, until the bank was notified of
that arrangement, it owed its obligations regarding the fund s to Senqu11.
20. In paragraph 31 of the main judgment , I stated:
“Consequently, the legal position prevails: the funds in the 706 -account
belonged to Senqu. The fact that the transfer was executed by someone
unauthorised to act on Senqu’s behalf does not alte r this conclusion, as
the law attaches no significance to such an action in determining
ownership of the funds.”
21. Mr. Jonker, appearing on behalf of Cometa, impressed on me t hat I never
actually found that Senqu itself made the disputed disposition. He pointed out
that the person who executed the electronic transfer, Ms. Lourie, was a
director of Cometa and did not act under Senqu’s authority when she moved
the funds. However, this submission loses sight of the legal position I
expounded on12, in the main judgment, which is that once a company opens a
bank account, the bank owes its obligations solely to that account holder ,
absent any special arrangement of which the bank is aware. If no agreement
exists to the contrary (or if the bank is not notified of such an agreement), the
account holder (in this case Senqu) is the only party entitled to direct the flow
of funds. Consequ ently, Ms. Lourie’s conduct in transferring the money from
Senqu’s account to Cometa necessarily constitutes a disposition by Senqu for
the purposes of section 341(2) of the 1973 Companies Act, because the
9 Trustees of the Insolvent Estate of Whitehead v Dumas and Another 2013 (3) SA 331 (SCA)
(“Whitehead ”)
10 Par 27 of main judgment
11 Par 28 of main judgment
12 Joint Stock Company Varvarinskoye v ABSA Bank Ltd and Other s 2008 (4) SA 287 (SCA) , and Van
Wyk Van Heerden Attorneys v Gore N.O. and Another [2022] ZASCA 128
bank’s obligation was to Senqu alone. In law and o n the facts it is therefore
Senqu who made the payment, regardless of the fact Ms. Lourie in fact did so
and regardless of her subjective intention.
Ground 2: Failure to co nsider that Senqu held the account in its name merely
as an agent of Cometa
22. This ground also fails to gain traction.
23. It was never Cometa’s case that Senqu was acting or holding the bank
account as Cometa’s agent. My review of Cometa’s answering papers,
confirmatory affidavits, and written submissions reveals no mention of an
agency arr angement. The term “agent” does not appear, nor does any indirect
reference to it.
24. Cometa cannot raise this new point now in support of its application for leave
to appeal, as it was not pleaded .
25. In any event, the agency argument fails on the merits. Having regard to the
facts of this case, it does not change the established legal position that once
money is deposited, it belongs to the bank, and neither the account holder nor
a third party can vary the bank’s obligation in the absence of prior notific ation.
The bank was never informed of any agency arrangement. If the bank was
aware of such agency arrangement Cometa could potentially have succeeded
under the exception to the general rule that the bank only owes its obligations
solely to the account hol der.
Ground s 3 and 4: Special circumstances for leave to be granted
26. I am unpersuaded that this matter warrants leave on the basis that it presents
important legal questions or considerations that only a higher court can
decide.
27. What constitutes a “dispos ition” is already defined in the Insolvency Act.
28. The argument that a “dormant” company cannot effect a disposition does not,
in my view, constitute a compelling reason for appellate scrutiny. Whether a
company is dormant or active does not affect its legal personality or the
requirements under section 341(2) of the 1973 Companies Act. As far as I am
aware, South African law makes no distinction between active and dormant
companies; both remain juristic persons until deregistration.
29. In any event, in my view, the question of dormancy will ultimately always be
factual to determine whether the company continued to exist and had the
capacity to dispose of its property. It is not clear in my mind what principle an
appellate court will be asked to clarify or establish.
30. As for agency, it likewise does not qualify as a compelling basis for leave. I
have already noted that agency was never pleaded. Even if it had been,
Cometa has a substantive problem: the bank was never informe d of any
agency arrangement. In terms of the Joint Stock Company judgment and
other authorities that dealt with the same central issue , Cometa would remain
unable to show that the bank was aware of such an arrangement. Thus, even
if Senqu had acted as Come ta’s agent, and even if an appe llate court should
find that in the circumstances like the present a dormant company may be
regarded as an agent where its bank account is used as a ‘stash’ account by
a third party , that would not entitle Cometa to the funds in the absence of the
bank being aware of such an arrangement.
Conclusion
31. For the reasons stated Cometa has failed to demonstrate a sound, rational
basis for concluding that another court would reasonably come to a different
outcome. I am therefore not persuaded to grant leave and in the
circumstances make the following order:
“The application for leave to appeal is dismissed with costs on a
party and party scale, including the costs of counsel on scale B. ”
____________________________
A MONTZINGER
Acting Judge of the High Court
Appearances:
Applicant’s counsel: Mr. P S Bothma
Applicant’s attorney: Boshoff Bronn & Smit Inc
Respondent’s counsel: Mr. J W Jonker
Respondent’s attorney: Cliffe Dekker Hofmeyr Inc