THE SUPREME COURT OF APPEAL
OF SOUTH AFRICA
CASE NO: A9/03
Reportable
In the matter between
BRIAN BASIL NEL N.O. First Appellant
MICHAEL DE VILLIERS N.O. Second Appellant
and
THE MASTER OF THE HIGH COURT
EASTERN CAPE First Respondent
ABSA BANK LTD First Intervening Respondent
THE STANDARD BANK OF SOUTH AFRICA
LTD Second Intervening Respondent
BOE BANK LTD Third Intervening Respondent
FIRSTRAND BANK LTD Fourth Intervening Respondent
NEDCOR BANK LTD Fifth Intervening Respondent
CORAM: HOWIE P, HARMS, ZULMAN JJA, JONES, VAN HEERDEN AJJA
HEARD: 9 MARCH 2004
DELIVERED: 1 APRIL 2004
Summary: Liquidator’s remuneration – reduction of by Master for ‘good cause’ –
interpretation of s 384(1) and (2) of Companies Act 51 of 1973 – ambit of court’s
powers to review such ruling by Master
JUDGMENT
VAN HEERDEN AJA
2
[1] This appeal turns primarily on th e proper interpretation of s 384(1) and
(2) of the Companies Act 51 of 1973 re lating to the determination by the
Master of the High Court of the ‘r easonable remuneration’ to which a
liquidator is entitled for his or her servi ces as such. It raises the question of
the nature and extent of the Maste r’s powers to reduce or increase such
remuneration if, in the Master’s opinion, there is ‘good cause’ for so doing,
as well as the ambit of the court’s powers under s 151 of the Insolvency Act
24 of 1936, read with s 339 of the Comp anies Act, to review a ruling by the
Master in this regard.
[2] The remuneration to which the li quidator of a company is entitled is
regulated by s 384 of the Companies Act, the relevant provisions of which
read as follows:
‘(1) In any winding-up a liquidator shall be entitled to a reasonable remuneration for his
services to be taxed by the Master in accordance with the prescribed tariff of
remuneration . . .
(2) The Master may reduce or increase such remuneration if in his opinion there is good
cause for doing so, and may disallow such re muneration either wholly or in part on
account of any failure or delay by the liquidator in the discharge of his duties.’
[3] The ‘prescribed tariff of remune ration’ is provided for in Annexure
CM104 to regulation 24 of the Regulati ons for the Winding-up and Judicial
3
Management of Companies. In the case of a liquidator ‘appointed to
liquidate the company’, as in the pres ent case, the tariff of remuneration is
the same as that which applies in the case of a trustee of an insolvent estate
in terms of s 63(1) of the Insolvency Act, ie Tariff B as contained in the
Second Schedule to this Act (‘the tari ff’). In terms of the tariff, the
liquidator’s remuneration is determined on the basis of specified percentages
of various different items, such as, fo r example, ten per cent on the gross
proceeds of movable property (other than shares or similar securities) sold,
or on the gross amount collected under promissory notes or book debts, or as
rent, interest or other income; three per cent on the gross proceeds of
immovable property, shares or similar securities sold, life insurance policies
and mortgage bonds recove red and the balance re covered in respect of
immovable property sold prior to li quidation; one per cent on money found
in the estate; six per cent on sales by the liquidator in carrying on the
business of the company in liquidation, or any part thereof.
[4] The appellants are the joint liquida tors of Intramed (Pty) Limited (in
liquidation) (‘Intramed’). Purporting to act in their capacity as liquidators,
the appellants applied to the High Cour t (Eastern Cape Division) to review
and set aside a ruling made by the first respondent, the Master of that Court,
reducing the prescribed tariff remuneration for their services as liquidators to
4
the sum of R3 250 000. They sought an order declaring that they were
entitled to remuneration in the am ount of R21 049 941.74, calculated in
accordance with Tariff B of the Second Schedule to the Insolvency Act. In
the alternative, the appellants reque sted the court itself to fix their
remuneration.
[5] The intervening respondents are five major South African banking
institutions, all of which are substan tial creditors of Intramed or of its
holding company, Macmed Health Care Limited (in liquidation)
(‘Macmed’), or of both companies. These respondents were granted leave to
be joined as parties to the review a pplication. They supported the Master’s
ruling.
[6] The court a quo (per Froneman J, Pillay AJ concurring) dismissed the
appellants’ application and ordered that the costs of such application and of
the joinder application be paid by the appellants personally. Hence the
present appeal, brought with the leave of the court below. The appellants do
not, however, contest the order joining the intervening respondents as parties
to the review proceedings.
Background
5
[7] Intramed was a wholly-owned s ubsidiary of Macmed. Macmed was
provisionally wound up on 15 October 1999, and the provisional order was
made final on 9 November 1999. The first appellant was appointed as one
of six liquidators of Macmed and was subsequently nominated by Macmed’s
major creditors to be the ‘lead liquidato r’ in the Macmed estate. The affairs
of Macmed were inextricably interli nked with those of its approximately 45
operating subsidiaries, including Intr amed, and the winding-up of Macmed
led in turn to the winding-up of thes e subsidiary companies over a period of
approximately six weeks.
[8] Intramed was placed in liquidati on, provisionally on 29 November 1999
and finally on 16 February 2000. It is common caus e that Intramed was a
well-run company and that it traded pr ofitably as a going concern. It was
one of only two companies in Sout h Africa which manufactured large
volume parentals such as intravenous fluids, oncology products and other
pharmaceuticals and appears to have be en of strategic importance to the
South African medical industry. Its liquidation resulted from large debts
which it had incurred, especially to Macmed, in respect of the initial
acquisition of its business and also as surety for certain liabilities of
Macmed.
6
[9] On the liquidation of Intramed the appellants were appointed as its
liquidators. After investigating Intramed’s affairs, the appellants decided not
to liquidate its business but to continue trading, with a view to selling the
business as a going concern in due course. After trading for some months,
the appellants succeeded in selling In tramed’s business as a going concern
for R154 300 000, the suspensive conditions to this sale being fulfilled by 31
July 2000. The sale price thus achieved was approxi mately R60 million
more than a much earlier offer which the third intervening respondent, BOE
Bank Limited, had ‘pressurised’ the appellants to accept.
[10] The first Intramed liquidation and distribution account was lodged with
the Master during July 2000. In this account the appellants claimed
liquidators’ remuneration of R21,2 million allegedl y calculated in terms of
the tariff. By means of a query sheet dated 20 July 2000, the Master advised
the appellants that he was of the opi nion that there was good cause to reduce
this remuneration in terms of s 384(2) of the Companies Act. The relevant
part of the query sheet read as follows:
‘It is evident from the comments in the join t liquidators report that the above Company
was a profitable and well-run Company, whic h had to be placed under winding-up order
only because of guarantees signed in favour of two financial institutions for loan
7
obligations of its ultimate holding co mpany, Macmed Healthcare Limited, which
Company was placed under winding-up order on 15 October 1999.
In addition to the above, the books of account of the Company were written up to the date
of liquidation and audited financial statements were prepared to that date. All of the
above is usually absent in the normal liqui dation and therefore th e liquidators did not
have as many onerous duties as is normal in a liquidation of this magnitude.
In addition to the above the liquidators advertised the sale of the business, which included
an immovable property, as a going and profita ble concern to prospective buyers and also
advertised in the press. It is apparent th at only three prospective buyers responded to the
above and the highest offer of R154,3 million was then accepted. The liquidators’ fee of
± R15,4 million as a result of the aforementioned transaction obviously forms a lion’s
share of the total fee of R21,2 million.
In the circumstances I am of the opini on that there is good cause to reduce the
liquidators’ remuneration of R21,2 million in terms of section 384(2) of the Companies
Act. However, before I do this I hereby afford you the opportunity to motivate the fee
bearing in mind the favourable conditions of this liquidation and the infrastructure that
was intact.’
[11] Following a series of discussions and letters between the Master and the
appellants, the latter submitted an am ended first liquidation and distribution
account on 11 September 2000, claiming liquidators’ remuneration in the
sum of R18 521 736,74. The decrease in the remuneration claimed was due
to the fact that the appellants, ‘wit hout prejudice and subject to [their]
8
rights’, had recalculated their remu neration by claiming only 3% of the
proceeds of the sale of the immovable property, and not 10% as reflected in
the previous account. The appellants ha d initially claimed 10% in respect of
the sale of this property as they regarded it as part of Intramed’s business
which was sold as a going concern.
[12] On 19 September 2000, the Master advised the appellants that a final
decision would be taken in respect of the appellants’ fees after the amended
first account had lain for inspection, but before confirmation. During
October 2000, the Master required the a ppellants to provide him with details
– or at the very least an estimate – of the time spent by them in the
administration of the Intramed estate . In response, the appellants adopted
the stance that they had not kept time records as they were not required by
law to do so and that they were una ble to furnish the Master with any
estimate of the time spent by them ‘o ther than to state that we [the
liquidators] have both been fully invo lved and committed to this assignment
for a period of ten and a half months’.
[13] Also during October 2000, various banks, including the intervening
respondents (‘the banks’), lodged an objection with the Master in respect of
the amount of the fee claimed by the appellants in the amended first account.
9
Subsequently, during November 2000, the appellants made detailed written
representations to the Master, setting out a full account of all aspects of their
administration of the Intramed estate and requesting the Master to tax their
remuneration in accordance with the prescribed tariff.
[14] On 6 February 2001, the Master ma de a ruling in regard to an interim
fee. He advised the a ppellants that he was of the opinion that there was
good cause to reduce their remunerati on in terms of s 384(2) of the
Companies Act and directed them to limit their remuneration in the first
account to R2 million and to carry forward to the final account the difference
between this amount and the amount claimed by them according to the tariff.
The Master further advised the appe llants that the quantum of their
remuneration would be ‘considered and fixed once the administration of the
estate has reached finality and all th e work done by the Liquidators has been
assessed and the value of further assets to be accounted for is known’.
[15] The appellants amended the firs t account in accordance with this
direction. In the interim, initial a nd further written representations on the
issue of the appellants’ remuneration were submitted to the Master by the
banks. These were forwarded to th e appellants who were given the
opportunity to reply. They did not av ail themselves of this opportunity.
10
During May 2001, the appellants requested the Master finally to determine
their remuneration and,
on 29 May 2001, the Master made the following ruling in regard to the
appellants’ remuneration, which ruli ng was relayed to the appellants on 28
June 2001:
‘In the circumstances I hereby fix a total remuneration for the work done and still to be
done by the Liquidators at an amount of R3 250 000.00; provided that their remaining
duties are carried out to my sa tisfaction. This amount should still be in excess of 1% of
the eventual total projected asset situation in the estate and in my view adequately
remunerates them for the amount of work a nd complexity of work that they have done
and must still do in this estate.’
[16] The appellants responded to this ruling by submitting a second
liquidation and distribution account to the Master on 3 July 2001, claiming
liquidators’ remuneration in the total amount of R21 049 941.74. This was
followed by the institution of the aboveme ntioned review proceedings in the
court a quo.
The statutory framework
11
[17] Section 384 of the Companies Act and the statutory provisions
governing the ‘prescribed tariff of rem uneration’ for liquidators have been
set out above. 1 It was common cause that, in their administration of the
Intramed estate, there was no failure or delay by the appellants in the
discharge of their duties and that th e essential question for determination
was therefore the nature and ambit of the Master’s powers, in terms of
s 384(2) of the Act, to reduce (or incr ease) a liquidator’s remuneration ‘if, in
his opinion, there is good cau se for doing so’. The court a quo analysed the
provisions of s 384 and held, in effect , that the dominant provision of this
section is the entitlement of the liquida tor to ‘a reasonable remuneration’ for
‘his services’ in terms of subsection (1). Any reduction or increase in the
liquidator’s remuneration by the Master in terms of subsection (2) must still
result in a reasonable remuneration for th e liquidator’s services. This being
so, the words ‘such remuneration’ in subsection (2) must be read as referring
to the ‘prescribed tariff of remuneration’ mentioned in subsection (1), viz the
amount of remuneration arrived at by applying the tariff.
[18] In attacking the findings of the court below, the appellants attempted to
attach significance to the fact that the (signed) Afrikaans text of s 384 differs
from the English text. Relying on the phrase ‘redelike vergoeding vir sy
1 See paras [2] – [3] above.
12
dienste wat getakseer moet word deur die Meester volgens die voorgeskrewe
skaal van vergoeding’ (my emphasis) in subsection 384(1), the appellants
appeared to contend that the Master is obliged without more to apply the
tariff; that remuneration and, on determined on the basis of the tariff is per se
reasonable, and that a liquidator is en titled to receive exactly what the tariff
provides in all cases, save only for a ‘d isallowance’ in terms of the second
part of subsection (2) for failure or delay in the discharge of his or her
duties. According to counsel for th e appellants, rem uneration determined
according to the tariff acts as an incen tive to liquidators to recover as much
as possible for an estate, while re muneration ‘determined on a time basis’
may in certain instances ac tually operate as a disincentive to liquidators and
will not always be for the benefit of th e estate. Thus, so counsel contended,
it is artificial to draw ‘an imaginary line’ between ‘reasonable remuneration’
and ‘the prescribed tariff of remuneration’ referred to in s 384 (1).
[19] This argument is plainly incorrect. As pointed out by counsel for the
intervening respondents, the Master, as a statutory functionary, is not free
to choose whether or not to tax the liquidator’s remuneration – the Master
must tax in accordance with the tari ff (s 384(1)), but having done so, may
reduce or increase the amount arrived at by applying the tariff if, in his or
her discretion, there is ‘good cause’ to do so. The dominant provision in s
13
384(1) remains that the remuneration to which a liquidator is entitled is
remuneration for work or services rendered , not a set commission, and
that it must be reasonable. The determination of ‘reasonable remuneration’
by the Master involves, in the first in stance, ‘taxation’ in accordance with
the tariff, which includes the categor isation of assets under the various
tariff items in order to apply the (p ercentile-based) tariff to each of the
items thus identified. The tariff serv es as a point of departure for the
determination of the appropriate fee. However, once taxa tion is complete,
the Master has a flexible discretion to increase or decrease the amount of
remuneration arrived at by the previ ous application of the tariff – the
jurisdictional fact for the exercise of this discretion is the forming by the
Master of the opinion that ‘good cause’ exists for doing so. On this
approach, there is no difference in meaning between the phrase ‘getakseer
moet word’ and the corresponding phrase ‘to be taxed’.
[20] It is also clear that the discreti on vested in the Master by s 384(2) is a
wide one.2 I agree with the argument a dvanced both by the Master and by
the intervening respondents that, in taxing a liquidator’s remuneration for
services rendered, the Master has a duty to satisfy himself or herself as to the
reasonableness of the remuneration arrived at by the application of the tariff.
14
This means that where, in the Mast er’s view, there is ‘good cause’ for
departing from the tariff, the Master ha s the power to do so. The concept of
‘good cause’ is very wide3 and there is nothing in s 384 of the Act which
indicates that it should be interpreted so as to exclude any factor which may
be relevant in determining what c onstitutes reasonable remuneration for a
liquidator’s services in the circumstances of each case. 4 Obviously, what
factors are relevant will vary from case to case, but may certainly include
aspects such as the comp lexity of the estate in question, the degree of
difficulty encountered by the liquidator in the administration thereof, the
amount of work done by the liquidator and the time spent by him or her in
the discharge of the duties involved. If, in the winding-up of a company,
particular difficulties are experienced by the liquidator because of the nature
of the assets or some other simila r feature connected with the winding-up,
this would undoubtedly constitute ‘good cause’ entitling the Master to
increase the tariff remuneration. On the other hand, in a situation where,
having regard to all the re levant factors, the Master forms the view that the
remuneration calculated according to the tariff is excessive in relation to the
work done or the responsibility invo lved, this would likewise entitle the
2 See Thorne v The Master 1964 (3) SA 38 (N) at 49F-H.
3 See, for example, Cohen Brothers v Samuels 1906 TS 221 at 224.
4 See C ollie NO v The Master 1972 (3) SA 623 (A) at 630D-E; Rennie NO v The Master; Glaum NO v
The Master 1980 (2) SA 600 (C) at 618D-F; Gore and Another NNO v The Master 2002 (2) SA 283 (E) at
293G-H; Elliot Brothers (East London) (Pty) Ltd v The Master 1988 (4) SA 183 (E) at 190G-H.
15
Master – and the Master will be obliged – to depart from the tariff figures by
decreasing the tariff remuneration to an amount which would be reasonable
in the circumstances.5
[21] The analysis by the court a quo of the relevant provisions of s 384 is, in
my view, entirely consistent with the approach set out above. I am not
persuaded that Froneman J erred in hi s interpretation of these statutory
provisions. Nor do I agree with couns el that there is any difference of
consequence between the meaning a nd ambit of the phrase ‘good cause’
used in the English text of s 384(2) and that of the corresponding phrase
‘gegronde redes’ used in the Afrik aans text. The evaluation by the court
below of the exercise by the Master of his discretion under s 384(2) in the
circumstances of the present case, a nd the various attacks launched by the
appellants on the court’s findings in this regard, will be discussed at a later
stage in this judgment.
The nature and basis of the review sought
5 See Ex Parte Wells NO: In Re Auto Protection Insurance Co Ltd 1968 (2) SA 631 (W) at 634A-B, where
Galgut J commented that there may well be occasions when the prescribed tariff may be ‘over-generous
and may allow remuneration in excess of the value of the actual work done. It may well be that there is a
large property centrally situated in one of the bigger cities of the Republic which has to be sold and the act
of selling it may not involve a great deal of work. To allow a remuneration of 2 ½ per cent on the proceeds
of such sale may in some circumstances constitute an overpayment of remuneration. Similar considerations
may well apply if the moveable assets are of a very high value or if the amount of cash found is large.’
16
[22] In terms of s 151 of the Insolvency Act, read together with s 339 of the
Companies Act6 -
‘…any person aggrieved by a ny decision, ruling, order or taxation of the Master…may
bring it under review by the court…’
South African courts have long accepte d 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 Co v
Johannesburg Town Council,7 ie where Parliament confers a statutory power
of review upon the court. In the Johannesburg Consolidated Investment Co
case, Innes CJ stated, 8 with reference to this kind of review, that a court
could –
‘…enter upon and decide the matter de novo. It possesses not only the powers of a court
of review in the legal sense, but it has th e functions of a court of appeal with the
additional privileges of being able, after setting aside the decision arrived at…, to deal
with the matter upon fresh evidence…’.
6 Section 339 of the Companies Act makes the provisions of ( inter alia ) s 151 of the Insolvency Act
applicable mutatis mutandis to the winding-up of a company.
7 1903 TS 111.
8 At 117.
17
[23] Thus, when engaged in this thir d kind of review, the court has powers
of both appeal and review with th e additional power, if required, of
receiving new evidence and of enteri ng into and deciding the whole matter
afresh. It is not restricted in ex ercising its powers to cases where some
irregularity or illegality has occurred.9 However, while it is sometimes stated
that the court’s powers under this ki nd of review are ‘unlimited’ or
‘unrestricted’,10 this is not entirely correct . The precise extent of any
‘statutory review type power’ must always depend on the particular statutory
provision concerned and the nature and extent of the functions entrusted to
the person or body making the decision under review.11 A statutory power of
review may be wider than the ‘ordinar y’ judicial review of administrative
action (the ‘second type of review ’ identified by Innes CJ in the
Johannesburg Consolidated Investment Co case),12 so that it combines
aspects of both review and appeal, 13 but it may also be narrower, ‘with the
9 See, for example, Gilbey Distillers & Vintners (Pty) Ltd and Others v Morris NO and Another 1991 (1)
SA 648 (A) at 655H-656A; Millman and Another NNO v Pieterse and Others 1997 (1) SA 784 (C) at
789A-C; Van Zyl NO v The Master 2000 (3) SA 602 (C) at 606C-607G; Gore and Another NNO v The
Master above (n 4) at 288C-289B, and the other authorities referred to in these cases.
10 See Johannesburg Consolidated Investments Co above (n 7) at 117, Thome v The Master above (n 2) at
49B-C; De Hart NO v The Master 1971 (3) SA 399 (O) at 372A; M S Blackman, R D Jooste & G K
Everingham Commentary on the Companies Act Volume 3 (2002) 14-325.
11 See Van Zyl NO v The Master above (n 9) at 607 G-H where Griesel J stated the following: ‘In
considering this question I bear in mi nd that the Master is the official en trusted by the Legislature with the
administration of all insolvent estates (as, indeed, of all other estates as well), including companies in
liquidation. As such the Master’s rulings ordinarily deserve some deference’.
12 Above (n 7) at 115-116.
13 One of the instances of this ‘wid er’ form of statutory review specifically mentioned by Innes CJ in the
Johannesburg Consolidated Investment Co case was s 105 of the Insolvency Law 13 of 1895 by which ‘the
remuneration allowed to a trustee by the Master may be reviewed by the Court upon the petition of the
trustee or any person interested’, the learned Chief Justice remarking (at 116-117) that ‘it would be absurd
to attempt to review a trustee’s remuneration if th e grounds of interference were confined to those
18
court being confined to particular grounds of review or particular
remedies’.14
[24] It was submitted on behalf of both the Master and the intervening
respondents that, in taxing the remune ration of a liquidator under s 384 of
the Companies Act, the Master perform s a function akin to that performed
by a Taxing Master of the High Court or the Supreme Court of Appeal in his
or her capacity as the official entruste d with the taxation of bills of costs in
litigious matters. The test on review in relation to decisions of the Taxing
Master should therefore, so it was cont ended, be equally applicable to a
review of a decision of the Master wh en he or she performs the function of
taxing the remuneration due to a liquidato r. This test has recently been re-
affirmed by the Constitutional Court in President of the Republic of South
Africa and Others v Gauteng Li ons Rugby Union and Another 15 in the
following terms:
‘[13] It is settled law that when a court re views a taxation it is ve sted with the power to
exercise the wider degree of supervision identified in th e time-honoured classification of
mentioned in sec 19 of the Proclamation [the Administration of Justice Proclamation 14 of 1902, dealing
with the grounds of judicial review of the proceedings of lower courts – grounds now set out in s 24 of the
Supreme Court Act 59 of 1959] or to those irregu larities and illegalities which would alone justify the
intervention of Courts, say, in regard to the proceedings of a Licensing Board.’
14 See Cora Hoexter with Rosemary Lyster (edited by Iain Currie) The New Constitutional and
Administrative Law Volume II: Administrative Law (2002) 67.
15 2002 (2) SA (CC) paras [13]-[14] at 73C-74A, footnotes included.
19
Innes CJ in the JCI case [ Johannesburg Consolidated In vestment Co v Johannesburg
Town Council 1903 TS 111]. This means
“…that the Court must be sa tisfied that the Taxing Master was clearly wrong before it
will interfere with a ruling made by him … vi z that the Court will not interfere with a
ruling made by the Taxing Master in every ca se where its view of the matter in dispute
differs from that of the Taxing Master, but only when it is satisfied that the Taxing
Master’s view of the matter differs so materi ally from its own that it should be held to
vitiate his ruling.” [Ocean Commodities Inc and Others v Standard Bank of SA Limited
and Others 1984 (3) SA 15 (A) at 18F-G. See al so the discussion by Botha J in Noel
Lancaster Sands (Pty) Limited v Theron and Others 1975 (2) SA 280 (T) at 282D-283D
for a discussion of the nature and limits of the judicial function in this context.]
This dictum has not only been re-affirmed fairly recently by the SCA in JD van Niekerk
en Genote Ing v Administrateur, Transvaal [1994 (1) SA 595 (A)] but has been approved
and followed by the Namibian Supreme Court in Hameva and Another v Minister of
Home Affairs, Namibia [1997 (2) SA 756 (Nms)].
[14] To this there is a qua lification, however. Not all deci sions by the Taxing Master are
equally insulated from judicial interference. In some instances, for example, where the
dispute relates to the quantum of fees allowed by the Taxi ng Master, the Courts are slow
to interfere with the Taxing Master’s assessment. But there are other cases
“…where the point in issue is a point on which the Court is able to form as good an
opinion as the Taxing Master and perhaps, even a better opinion.” [Per Millin J in
Wellworths Bazaars Limited v Chandlers Limited and Others 1947 (4) SA 453 (T) at 457
in fin.]
20
The prime example of such cases is wher e the Court has better knowledge of the
particular question than the Taxing Master, fo r instance where a point as to admissibility
of a segment of evidence is determined by the Court and subsequently bears materially on
costs items in dispute.’16
[25] On the other hand, counsel for the appellants argued that there is a
marked difference between a ruling by the Taxing Master on taxation and
the exercise by the Master of his or he r discretion, in terms of s 384 of the
Companies Act, to reduce or increase the remuneration of a liquidator. I
must admit that I fail to see what this ‘marked difference’ is. The appellants
appear to approach this matter on th e basis that the court’s powers when
reviewing a ruling by the Master in this regard are unrestricted and that it is
not necessary to find that the Master was ‘clearly wrong’, the enquiry simply
being whether the Master’s conclusion was right or wrong. I disagree. As I
have indicated above, 17 it is important to have regard to the nature of the
functions entrusted to the person wh ose decision is under review. In my
view, there is no reason to draw any distinction between the test on review in
relation to decisions of a Taxing Master and that applicable to a review of a
decision of the Master when he or she performs the function of taxing the
16 See also Price Waterhouse Meyernel v Thoroughbred Breeders’ Association of South Africa 2003 (3) SA
54 (SCA) para [25] at 63E-F.
17 In para [23].
21
remuneration due to a liquidator. In both cases, where the dispute concerns
the quantum of remuneration allowed, the court should be slow to interfere.
[26] This is not, however, the end of the matter. The only ground of review
specifically articulated by the appella nts in their founding papers reads as
follows:
‘It will, at the heari ng of this application, be argued that the Respondent [the Master]
erred in fixing the liquidators’ remuneration based on an assumption of the time spent by
the liquidators in the administration of the estate and that the Respondent should have had
regard to the tariff when fixing the liquidators’ remuneration.’
The appellants make no reference whatsoever in their founding papers to the
provisions of the Promotion of Admini strative Justice Act 3 of 2000 (‘the
AJA’). The date of commencement of the AJA was 30 November 2000 and
it was therefore in operation at the time that the Master’s final ruling was
made on 29 May 2001. In his answering a ffidavit, the Master alleges that it
was incumbent upon the appellants pertin ently and clearly to bring their
review application within the pr ovisions of the AJA. The relevant
paragraphs of the answering affidavit are in the following terms:
22
‘22. I contend that the provisions of the AJA are indeed applicable to this review, and that
accordingly in terms of the provisions of S ection 6 thereof the review must be judged
within the terms of that section particularly Sub-section 2 thereof. The principles and
procedures of the AJA must be satisfied . . .
23. Presumably the Applicants [the appell ants] do not and will no t allege that the
administrative decision that wa s taken by me falls within any reviewable context other
than that referred to in Section 6(2)( h), which must, to be reviewed, constitute the
exercise of a power which is: “ . . . so unreasonable that no reasonable person could
have so exercised the power or performed the function . . . ”, alternatively that I have
acted capriciously or arbitrarily.
24. Indeed in answering the founding papers in this matter I must confess to some
difficulty in appreciating the actual basis upon which the review is brought, based on the
broad “unfocussed” allegations contain in the founding papers . . . .
. . . .
27. It ought to be said that I do not understand th e Applicants to be alleging bias, that the
action was procedurally unfair or was const ituted by an error of law, that I acted with
any ulterior purpose or motive or took into account irrelevant considerations or
alternatively failed to consider relevant cons iderations. No bad faith is alleged believing
[sic: leaving?] only unreasonableness as the supposed basis of the application.’
In the replying affidavit, the appellants, dealing with the Master’s reference
to the AJA, baldly state the following:
23
‘As is apparent from what is set out in the founding affidavit, the respondent [the Master]
took into account irrelevant matters becau se of the unauthorised and unwarranted
dictates of creditors and purported creditors, and acted arbitrarily and capriciously.’
Moreover, in response to the Master’s detailed exposition in his answering
affidavit of the various factors and circumstances, over and above the time
spent by the liquidators, taken into consideration by him in making his
ruling, the appellants simply persist with the contention that assumptions
made by the Master in regard to the time spent by them in the administration
of the Intramed estate were the only basis for the Master’s ruling. They
dismiss summarily, as an ‘afterthought’, the Master’s allegation of the other
factors considered by him in coming to his eventual finding.
[27] The court a quo dealt with the provisions of the AJA as follows:
‘The AJA seeks to give effect to the funda mental right to la wful, reasonable and
procedurally fair administrative action a nd the right to be gi ven written reasons,
entrenched in s 33 of the Cons titution. It is, in a certain sense, a codification of the
principles relating to the second kind of review referred to by Innes CJ in the JCI case . .
. . Previously those principles derived their authority from the constitutionally allowed
inherent common-law jurisdiction or competen ce of the superior c ourts. They now find
their authority in the written Constitution (Pharmaceutical Manufacturers Association of
24
South Africa: In re Ex parte President of the Republic of South Africa and Others 2000
(2) SA 674 (CC)). The third kind of review, however, derives its existence from specific
statutory enactments that provide for powers of review far wider th an the powers of the
first two kinds of review (compare th e remarks of Innes CJ at 116-117 of the JCI case).
This kind of review thus in corporates constitutional revi ew (based previously on the
common law and now on the written Constitution), but also extends it beyond
constitutional review grounds. The extens ion does not offend the constitutional
separation of powers, because it is the legislature that expres sly authorises the courts to
go further than the constitutional review founded upon that separation of powers.
To the extent that a review under s 151 of the Insolvency Act (applicable to companies by
virtue of s 339 of the Companies Act) is based on constitutional review, it must fall
within the codified categories of review under the AJA. To the extent that it goes beyond
constitutional review (something that, by de finition, implies no conflict with the grounds
of constitutional review), it falls outside the ambit of the AJA or, perhaps, it resorts under
the catch-all category of “action . . . otherwise. . . unlawful” in s 6(2)(i) of the AJA.
As mentioned earlier, the only sp ecific basis for review set out in the liquidator’s papers
is the alleged misconceived reliance by the Master on a time-related assessment to
determine the liquidators’ remuneration. This may conceivably amount to a ground under
s 6(2)( d) (“materially influenced by an error of law” ) or s 6(2)( e) (“taking irrelevant
considerations into account” ). In argument, however, re liance was also placed on the
extended ‘appeal-type’ power of review. In ei ther case the nature and extent of the
Master’s power to fix the remuneration of a liquidator is crucial to determine the outcome
of the review application.’
25
[28] To my mind, there is certainly something to be said for the view that, in
attacking the Master’s ruling, the a ppellants should have formulated their
grounds of review so as clearly to bring such grounds within the purview of
those enumerated in s 6(2) of the AJ A. The Master’s ruling in this case
would certainly seem to fall with in the ambit of the definition of
‘administrative action’ in s 1(i) of the AJA, viz
‘ . . any decision taken, or any failure to take a decision, by –
(a) an organ of state, when –
(i) exercising a power in terms of the Constitution or a provincial
constitution; or
(ii) exercising a public power or perfor ming a public function in term of any
legislation; or
(b) a natural or juristic pers on, other than an organ of state, when exercising a public
power or performing a public function in terms of an empowering provision,
which adversely affects the rights of any pe rson and which has a direct, external legal
effect . . .’.
[29] By giving ‘legislative form and detail to the fundamental principles of
administrative law entrenched in s 33 of the Constitution’, 18 the AJA
introduced a new era in South Afri can administrative law, placing the
18 See Iain Currie & Jonathan Klaaren The Promotion of Administrative Justice Act Benchbook (2001) para
1.1.
26
control of administrative power – including the judicial review of
administrative action – largely on a statutory footing. 19 As is evident from
the abovequoted passage from the judgment of Innes CJ in the Johannesburg
Consolidated Investment Co case,20 the third (wider) kind of review appears
to have more to do with the powers of the court of review and the evidence
which such court may take into consideration rather than with the grounds of
review. It can therefore be argued th at the ‘material disparity’ ground of
review referred to by the Constitutional Court in the Gauteng Lions Rugby
Union case21 now also falls within the grounds of review listed in s 6(2) of
the AJA. There is, however, another vi ew, namely that th ere is a very real
possibility that some actions by admini strative officials may fall outside the
ambit of the definition of ‘administrative action’ in s 1(i) and hence not be
governed by the AJA. 22 The breadth (or narrowness) of the sphere of
application of the AJA and the precise relationship between the Constitution,
the AJA and the common law are i ssues that will undoubtedly exercise
South African courts for some time to come. 23 However, as I am satisfied,
19 See Hoexter et al op cit (n 14) 66-67. See also Bato Star Fishing (Pty) Ltd v The Minister of
Environmental Affairs and Tourism and Others (Case CCT 27/03, unreported decision of the Constitutional
Court delivered on 12 March 2004, paras [22]-[25].
20 See para [22] above.
21 Above para [24].
22 See Du Bois v Stompdrift-Kamanassie Besproeiingsraad 2002 (5) SA 186 (C) at 192G–193A and the
other authorities there cited, in particular Cora Hoexter ‘The Future of Judicial Review in South African
Administative Law’ (2000) 117 SALJ 484 at 514 et seq.
23 See the Bato Star Fishing case op cit (n 19) paras [21], [22] and [25]; see also Hoexter et al op cit (n 14)
66-67, 87-89, 110-113; also GE Devenish, K Govender & D Hulme Administrative Law and Justice in
27
for the reasons set out below, that th e appellants have not made out a case
either under the AJA or under the wider ‘appeal-type’ of review, it is neither
necessary nor desirable to say anything further in this regard.
The exercise of the Master’s discretion
[30] As indicated above, I am of the vi ew that the Master’s approach to the
nature of his functions under s 384(2) of the Companies Act is the correct
one and that, in the exercise of his du ties in this regard, he has to consider
each case on its own facts and pr operly exercise his discretion under
s 384(2) so as to ensure that the remuneration calculated according to the
tariff is reasonable and justifiable in th e light of the actual services rendered
by the liquidator or liquidators concer ned. In determin ing whether there is
‘good cause’ for reducing the tariff remuneration, the Master is perfectly
entitled to have regard, inter alia, to the fact that such remuneration –
‘. . . is seen to be disproport ionate to the value of the work done in the particular estate
or where the property is of a very hi gh value and calculation of the remuneration
according to tariff has an inflationary effect which results in a remuneration which is seen
to be excessive in the circumstances or induces a sense of shock.’24
South Africa (2001) 177-178, 424-427; Johan de Waal, Iain Currie & Gerhard Erasmus The Bill of Rights
Handbook 4ed (2001) 497 et seq.
24 See the Master’s ruling in respect of an interim fee dated 6 February 2001, Annexure ‘BN 52’ to the
appellants’ founding papers.
28
[31] I agree with the finding of the court a quo that, while it is neither
desirable nor possible to define ‘goo d cause’ in this regard, the Master’s
opinion as to what constitutes good cau se must have as its purpose the
determination of a reasonable remuneration for the liquidators’ services:
‘This implies some objectively determinable limits to the exercise of the Master’s
discretion informing his or her opinion. If th e factors that lead th e Master to the opinion
are not rationally related to the object of determining a reasonable remuneration for
services rendered or done by the liquidator, the exercise of the discretion will not be
proper and may, on those objectively justifiable grounds, be set aside on review’.
[32] In the court a quo, the appellants contended that it was impermissible
for the Master at all to take into account the amount of time spent by them in
the fulfilment of their duties in administ ering the Intramed estate in order to
decide whether there was good cause for the reduction of the tariff
remuneration. In argument before this court, the appellants tempered this
submission to a certain (albeit limited) extent, but still insisted that the
Master had ‘put the cart before the horse’ by first calculating the time that
would have been spent, according to him, on the performance of their task
by the appellants; then deciding that good cause existed for the reduction of
29
the appellants’ remuneration; and then awarding an amount more or less in
accordance with his time-based calculation.
[33] According to the appellants, th e reasons given by the Master for his
final ruling, the events leading up to th e exercise of his discretion in making
such ruling, and the methodology adopt ed by him illustrated that he, from
the outset and at all times, approached th e matter on the basis that the
appellants should be paid per hour for the work done by them. Following
this approach, so it was contended, th e Master compared the amount of the
remuneration assumed to be appropriate on this ‘time basis’ with the tariff
amount which induced a sense of shoc k in him, whereupon he decided that
good cause existed for the reduction of the appellants’ remuneration.
[34] The voluminous papers before us clearly show that this ‘slant’ placed
by the appellants upon the Ma ster’s approach is not factually correct. As
indicated above, the question of a possi ble reduction of the appellants’ tariff
remuneration was first raised by the Ma ster in his query sheet dated 20 July
2000.25 In that document, the Master not ed various factors which, in his
view, cumulatively indicated that th ere may be ‘good cause’ to reduce the
appellants’ remuneration in terms of s 384(2) of the Companies Act. The
30
time spent by the appellants in the admi nistration of the Intramed estate was
not one of the factors specifically men tioned. Both at this time, and on
several subsequent occasions, the a ppellants were given the opportunity to
motivate their tariff remuneration and to comment on the various written
representations received by the Master from the banks in substantiation of
their objections to this tariff remunera tion. Moreover, as will be discussed
in further detail below, the appella nts are not correct in suggesting
(apparently as a further ‘string to their bow’) that the Master took the
approach that a liquidator who properl y performs his or her functions in
terms of the Companies Act should forfeit some of the tariff remuneration to
which such liquidator is entitled simply by virtue of the size of the estate
concerned, irrespective of the actual degree of care, skill, diligence and
competence with which the liquidator’s duties have been performed.
[35] The court a quo correctly held that the appellants’ stance that the
Master’s ruling was ‘based on assu mptions made by First Respondent [the
Master] in regard to time spent by the liquidators in the administration of the
Intramed estate’ and that the time fact or was, in essence, irrelevant, was an
untenable proposition. As pointed out by Froneman J, the appellants are
only entitled to a ‘reasonable remuneration’ for their services in terms
25 See para [10] above.
31
of s 384(1). The time spent by them in rendering these services is, at the
very least, one of the factors that may legitimately be taken into
consideration by the Master in decidi ng whether there is good cause for the
reduction of the tariff remunera tion. It is clearly not the only factor to be
considered and, depending upon the circum stances of each particular case, it
may not be the most important factor, but a consideration thereof is clearly
rationally related to the object of de termining a reasonable remuneration for
services rendered. The appellants’ attempt, in both their founding and
replying papers, to contest the Master’s averment that the issue of time was
not the only factor taken into account by him in making his final ruling, is
not convincing. The facts on the papers indicate that the Master considered
a relatively wide range of other factor s relevant to the administration by the
appellants of the Intramed estate in coming to his final assessment. To my
mind, therefore, the court a quo was correct in finding that the appellants
had not made out any case on the papers for the setting aside of the Master’s
ruling on ‘constitutional review grounds under the AJA’ for having regard to
the time spent by the appe llants in the administration of the Intramed estate
as one of the factors to be taken in to account in determining whether good
cause for reduction of the tariff remuneration existed.
32
[36] What then of the appellant’s argument that the Master was in any event
wrong or clearly wrong in his conclusion that good cause for a reduction of
the tariff remuneration did exist in this case? In this regard, counsel for both
the Master and for the interveni ng respondents contended that a
determination of the extent of th e services rendered by a liquidator
necessarily involves an assessment of the time and effo rt expended by the
liquidator in winding-up the estate c oncerned. The fee prescribed by the
tariff must be assessed for reasonablen ess by way of a criti cal assessment of
such prescribed fee in the light of the time and effort expended by a
liquidator, taking into account ( inter alia) the degree of complexity of his or
her duties in the winding-up. I agree with this submission and it is borne out
by the approach adopted by this court in Collie NO v The Master .26 T h e
appellants submitted that, be fore the Master may ‘ move away’ from the
tariff remuneration, either by increasi ng or reducing such remuneration, the
circumstances of the case concerned mu st be ‘extraordinary’, ‘exceptional’
or ‘entirely different to the general run of cases’. In this regard, the
appellants relied quite heavily on what they called the ‘swings–and–
roundabouts’ principle, emphasising the following dictum of Beaumont J in
the 1908 case of In Re Insolvent Estate A. McWilliam:27
26 Above (n 4) at 627B, read with 629H-630H.
27 29 NLR 42 at 43-44.
33
‘I am strongly of opinion that the fee which has been charged is quite out of proportion to
the work which has been done. It seems to be out of reason that where the work is
exactly the same whether the land is wort h £50 or £5 000, in the one case the trustee
should get a fee of 25s and in the other £125; but we have to remember that in all these
estates the trustees have to take the fat with the lean – in some portions of the
administration they may lose money, and in others perhaps gain.
The law states very distinctly that in the case of immovable property 2 ½ per cent is to be
considered as a reasonable fee to be char ged – it makes no difference what the value of
the land is. Before the Court can exercise its discretion and alter that rate, I think it should
be satisfied that there is something entirely different in this cas e to the general run of
cases. I am unable to say that the circumstances of this case are different from those in
any other case where land is sold by a truste e, and therefore it w ould, in my opinion, be
unwise to interfere. The fact of our interfering would at once create great uncertainty as
to the proper charge to be made, and we should continuall y applied to, to exercise our
discretion, and to modify or vary charges which had be made by trustees. Trustees would
be in uncertainty – the public would be in uncertainty, and the tr ustees might possibly
feel themselves pressed to reduce their charges, or to face litigation . . . ’.
[37] This ‘swings–and–roundabouts’ pr inciple is apparently based on the
premise that an insolvency practione r may administer a substantial number
of small and relatively unpr ofitable insolvent estates, but will, from time to
time, be appointed to administer a la rge and particularly profitable estate,
where the size of the liquidator’s percentile-based fee calculated in
34
accordance with the tariff will ‘compens ate’ him or her for the relatively
poor returns on the numerous ‘unprof itable’ estates which he or she
administers. I agree with the submission made by counsel both for the
Master and for the intervening re spondents that this ‘swings–and-
roundabouts’ principle is unsuppor ted by any authority since the 1908
decision in the McWilliam case28 and is, more importantly, an untenable and
unjustifiable proposition. There is no le gal or other reason why creditors in
large estates should, albeit indirectly, fund the administration of smaller, less
profitable estates.
[38] The appellants maintained that it would be quite impossible for them to
furnish the Master with even an es timate of the time spent by them in
administering the Intramed estate. Moreover, they argued, it is common
cause that the Master did not require th em to keep any record of time spent
by them in winding-up the estate at the time that they accepted their
appointments, nor at any other stage prior to the dispute regarding their
28 In any event, the principle appears to have been rej ected, at least by implication, by this court in the
Collie case, above (n 4). This case concerned the application of s 51(3)(a) of the Administration of Estates
Act 66 of 1965, which empowers the Master, when in any particular case there are special reasons for
doing so, to reduce or increase the remuneration of an executor calcula ted in accordance with ( inter alia)
the prescribed tariff. There too, th e Master had indicated that the f ees calculated according to the tariff
‘appear to be excessive’ and had requested ‘motivation or representations why same should not be reduced’
at (627D). There too, part of the answer given by th e executor was that ‘many of the smaller estates are
distinctively unprofitable and are dealt with by us largely as a public service. Very infrequently an estate of
the calibre of the present one is handled and this help s to balance our costs as professional executors’ (at
627F). It is evident from the rest of the reported judgment that this argument did not find favour with the
35
remuneration arising. According to the appellants, the Master considered
the necessity for time records as a material and extremely important factor in
assessing the remuneration to which th ey were entitled and, incorrectly,
adopted the approach that he coul d not adequately comply with his
obligation to confirm the relevant a ccount unless he ha d been referred to
estimates of time kept by the appellants. The answer to these complaints is a
simple one: while the appellants were not under any legal or other duty to
keep time records regarding the fu lfilment by them of their duties in
administering the estate, it is cl ear from the correspondence exchanged
between them and the Master that this was not what the Master required of
them. The Master did not demand that he be furnished with time sheets, but
rather requested details regarding the time and effort spent by the appellants
in administering the estate – at the very least an estimate of the time spent on
the various administrative duties perform ed by the appellants in this regard.
The appellants, in response, declined to furnish the Master with even an
estimate of the time spent by them, seek ing to justify their fees by reference
to the broad general categories of wo rk performed by them in the winding-
up of the Intramed estate without attempting properly to detail the ambit and
extent of their involvement or the time which they devoted to the winding-
up. Contrary to what is suggested by the appellants, it is clear from the
court which held that the Master had correctly fixed ‘a fee as remuneration for an executor’s services taking
36
papers that the Master did not seek to place any onus on the appellants to
justify the fee claimed by them in th e amended liquidation and distribution
account by furnishing him with time sheets or records. What the Master did,
quite properly, was to give the appe llants various opportu nities to furnish
him with details of facts and circumstan ces relevant to the exercise of his
discretion.
[38] In their founding papers, the appe llants complain that ‘neither the
respondent [the Master] nor the creditors [the banks] have the remotest idea
of the actual time spent and do not even venture a suggestion in this regard ’.
In his answering affidavit, the Master points out – quite logically – that this
was precisely why he initially s ought guidance from the appellants
themselves in this regard by requesti ng them to furnish him with estimates
of the time spent. However, because of the appellants’ failure to do so, the
Master ‘was then obliged to make my own informed estimate of the time
factors and deny that I do not have a good idea what result this renders’. The
appellants complained that the mann er in which the Master ultimately
calculated their remuneration was nothi ng more than a ‘thumb suck, based
on imaginary hours and on imaginary hourly rate to which the Master added
a totally arbitrary amount in respect of work, as yet unknown, still to be
into account work done and the circumstances of the case, with the tariff as a guideline (at 629B-D).
37
done in future’. This complaint t oo is not well-founded. As regards the
amount added by the Master in respect of work to be done by the appellants
in the future, the court a quo correctly pointed out that the final ruling was
insisted upon by the appellants themselves despite the fact that, in terms of
his interim ruling dated 6 February 2001, the Master had advised the
appellants that the final quantum of their remuneration would be fixed upon
finalisation of the liquidation, once a ll the work done by the appellants had
been assessed and the va lue of further assets to be accounted for was
known.29 In this interim ruling, the appe llants had been directed to limit
their remuneration in the first account to R2 million, but to carry forward to
the final account the difference between this amount and the amount claimed
by them according to the tariff. By insisting upon a final ruling, the
appellants to my mind precluded them selves from complaining, as they
sought to do before us, that the remaining work includes extensive,
substantial and complex litigation, which is unlikely to be finalised in the
immediate foreseeable future. For the finality of the Master’s ruling, the
appellants have only themselves to blame.
[39] As regards the other complaints levelled by the appellants against the
Master’s final ruling, I am of the view that both the ruling itself, as also the
29 See above para [14].
38
preceding correspondence between the pa rties, indicates that the Master
ultimately based his assessment on a ge nerous allowance for the time spent
by the appellants for the full period of their appointment, in addition to
making allowance for work still to be done in winding-up the balance of the
estate. As submitted by counsel for th e Master, the Master’s allowance, by
virtue of the rate applied to the time estimate, takes into account the
appellants’ seniority,30 their expertise as insolv ency practitioners and the
complexity of the matter. In determ ining the extent of the remuneration
finally awarded, the Master a llowed for 15 months spent on the
administration of the Intramed estate − this being double the 7 ½ month
period which had expired from the date of liquidation to the date of filing of
the first liquidation and distribution account − an average of 2½ hours per
day, 22 days per month at an hourly remuneration of R1800 per hour for
each appellant. This figure totalling R2 970 000 was then increased to
R3 250 000, taking into account the furt her work that had to be undertaken
by the appellants in carrying out their remaining duties. As pointed out by
the court a quo , the appellants did not take the trouble of contesting the
merits of the Master’s decision on its own terms, adopting an ‘all-or-nothing
30 In Stubbs v Johnson Brothers Properties CC and Others 2004 (1) SA 22 (N) at 28B-D, Magid J pointed
out that the actual experience and seniority of a legal practitioner who appears in a matter, rather than the
experience and seniority required of the legal practitioner to present the case, is not relevant to the
assessment of a proper fee to be allowed on taxation. This would probably also apply to the taxation of a
liquidator’s remuneration. However, in the present case, the appellants have certainly not been prejudiced
39
approach’. They failed to join issue with the Master’s time estimates or the
adequacy or reasonableness ther eof. They did not dispute the
appropriateness of the hourly tariff applied by the Master having due regard
to their expertise as insolvency pr actitioners and to the remuneration of
comparably experienced professionals and businessmen e ngaged in affairs
of comparable complexity and importan ce. The application of an hourly rate
to the Master’s assessment of a reas onable time and effort which should
have been expended by the appellants in winding-up the estate was further
subjected by the Master to a test of reasonableness in relation to the criterion
of a percentage of the total project ed assets. The amount of remuneration
derived by the application of the rate to the time estimate by the Master was
evaluated by him to result in a remune ration which would still be in excess
of 1% of the eventual total projected asset situation in the Intramed estate
and which would, in his view, adequately remunera te the appellants for the
amount of work and the complexity of the work done by them. Even on a
wider ‘appeal-type’ review, it cannot be said that the Master was wrong in
the exercise of his discretion in terms of s 384(2). As pointed out by the
court a quo –
in any way by the Master’s having taken their actual seniority and level of experience into account, in their
favour, in determining an appropriate remuneration for them.
40
‘…the banks’ representations to the Mast er showed that the prescribed tariff
remuneration was far in excess of ordinary commercial remuneration for that kind of
endeavour. On these facts I do not think one can make a finding that the Master was
wrong informing the opinion that good cause for the production of the tariff remuneration
existed.’
[40] The appellants argued in the court a quo, and persisted in this argument
before this court, that the words ‘s uch remuneration’ in s 384(2) of the
Companies Act, which ma y be reduced or increased by the Master in
exercise of his discretion, refer only to the percentages allowed in the tariff
and do not, on any interpreta tion, import the reasonable fees to which other
professionals would be entitled for similar work. Since the Master is directed
in the first instance to tax the liqui dators’ remuneration in accordance with
the tariff, he or she is obliged to follow that course when reducing the
remuneration – he or she must look at the tariff and reduce it accordingly.
[41] The grounds upon which the court a quo rejected this argument are, in
my view, entirely correct:
‘The taxation process involves, amongst other things, the categorisation of assets in order
to determine what prescribed tariff applies to the particular asset. Sometimes disputes
arise about the correctness of the Master’s categorisation of assets in the taxation . . . .,
41
but those are disputes still falling squarely within the ambit of the taxation process in
s 384(1). It is only once the taxation proce ss in this form is complete, namely the
category of item established and the prescr ibed tariff for that item identified, that it
become possible for the Master to consider whether good cause exists for the reduction of
the already prescribed tariff for the already established category. Without that having
been established first, the application of s 384(2) is im possible. There would be no “such
remuneration” to reduce or increase. Only with the tariff for a particular item established,
is the Master able to consider whether “ such remuneration” should be reduced on good
cause. In so doing the tariff may serve as a guideline, bu t other factors such as the
amount of work done, may also be considered. . .
There is nothing in the wording of s 384(2) of the Companies Act that prescribes how the
Master should determine the extent to wh ich the remuneration taxed in accordance with
the prescribed tariff under s 384(1) should be reduced. The Master may do this in a
number of ways, provided th at his method is rationally connected to the purpose of
determining a reasonable remuneration for the liquidators’ services . . .
Applying that the approach to the facts, no fault can be found with the Master’s
assessment . . .’
Costs
[42] As I have indicated above, the appellants purported to bring their
review application in their capacity as the duly appointed joint liquidators of
Intramed, contending that they were duly authorised in such capacity to
42
institute the review proceedings. As correctly pointed out by the Master in
his answering affidavit, the appellant s failed to annex a ny evidence which
supported this contention. The review proceedings were in fact proceedings
which should obviously have been brought by the appellants in their
personal capacity and not in thei r capacity as joint liquidators − the
proceedings relate to their entitlement to remuneration a nd not to a matter
falling within the ambit of their role as liquidators of the Intramed estate. As
contended by counsel for both the Mast er and the intervening respondents,
the appellants were simply seeking to secure a higher fee for their services
than that fixed by the Master. In so doing, they were acting in their personal
capacities and not in any sense in the interests of the creditors of the
Intramed estate. Indeed , the appellants were − and still are − acting against
the interests of the creditors, solely for their own benefit. 31 This being so,
there is no reason whatsoever why the co sts of the review application or of
the appeal should be borne by the company in liquidation .
Order
[44] In the circumstances, the following order is made:
31 See Rennie NO v The Master; Glaum NO v The Master above (n 4) at 605C-D; Gore and Another NNO v
The Master above (n 4) 5 at 294F-I.
43
The appeal is dismissed with costs, including the costs consequent upon
the employment of two counsel where applicable, such costs to be paid
by the appellants in their personal capacities jointly and severally.
____________________
VAN HEERDEN AJA
Concur:
HOWIE P
HARMS JA
ZULMAN JA
JONES AJA