SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document in
compliance with the law and SAFLII Policy
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, PRETORIA
CASE NO.: 2024 -105894
(1) REPORTABL E: YES/NO
(2) OF INTEREST TO OTHER J UDGES: YES/NO
(3) REVISED.
06/06/2025
In the matter between:
POISONWOOD INVESTMENTS (PTY) LTD Applicant
and
MEYER VAN DER WALT INCORPORATED First Respondent
DEON MARIUS BOTHA N.O. Second Respondent
JACOLIEN FRIEDA BARNARD N.O. Third Respondent
LOUISE SIBIYA N.O. Fourth Respondent
In their capacities as the appointed joint provisional
liquidators of Silver Solutions 1206 CC with registration
number 2005/081258/23 (in liquidation) with Master
reference M000031/24
JUDGMENT
van der Westhuizen, J
[1] In this application the applicant sought an order that :
(a) it be declared that the funds currently held in trust by the first respondent
do not constitute an asset, and/or vest in the insolvent estate of Silver
Solutions 1206 CC with registration number 2005/0815894/2 3 (in
liquidation);
(b) the applicant is entitled to claim payment of the funds referred to above;
(c) the transfer attor neys (First respondent) be authorised to release the funds
currently retained by them in trust to the applicant.
[2] The amounts that the applicant sought to have paid over to it, amounting to
R778 655.50 and R 2 195 000.00 , were held in trust.
[3] It was contended by second , third and fourth respondents , being the
provisional appointed liquidators, that the amounts the applicant sought to be
paid out , were monies which arose from a loan advanced to Silver Solution s
and hence that those funds remained vested in the insolvent estate of Silver
Solutions. It was further contended by the provisional liquidators that the
applic ant therefor was obliged to lodge a claim against the insolvent estate.
[4] The applicant alle ged that a contr actual relationship existed between it and
Silver Solutions in terms of which the applicant effected payment of Silver
Solutions ’ invoices for the construction of residential units within the De Velde
development , which was situated on property belonging to the applicant. The
invoices related to the said construction of the units which third parties
purchased. It was a further term of that contractual relationship that Silver
Solutions would authorise the first respondent, the attorneys who would
attend to the transfer of the units to the third parties, to trans fer the proceeds
of the building contracts to the applicant. Silver Solutions a greed to that term ,
and had in fact authorised the first respondent to transfer such proceeds
accordingly. The first respondent had in the past acceded to that authorisation
and transferred funds paid into their trust account by third parties for the
benefit of the applicant, to the applicant .
[5] After Silver Solutions was provisionally liquidated during June 2024, the
provisional liquidators adopted the stance that the applicant was not entitled
to those funds that were at that time held in trust by the first respondent and,
which were earmarked for the applicant.
[6] Various correspondence s were exchanged relating to the payment of the said
funds. However, on 13 September 2024 the provisional liquidators demanded
that the first respondent pay over those funds to them for the benefit of the
insolvent estate.
[7] The issue to be det ermined by this court relates to the question whether the
said funds vest in the applicant or in the insolvent estate of Silver Solutions. In
this regard the following is to be noted.
[8] It was not disputed that all the invoices in respect of the construction costs of
Silver Solutions were paid in full by the applicant to Silver Solutions . It was
further not disputed that Silver Solutions pre viously instructed the first
respondent to transfer any amount of proceeds paid into the first respondent’s
trust account for the benefit of the appli cant, by third parties in respect of the
De Velde development. The provisional liquidators did not dispute that the
third parties did not pay the proceeds relating to their units in the De Velde
development direct ly to Silver Solutions. All such proceeds were always paid
directly into the trust account of the first respondent for the benefit of the
applicant. The construction /building agreements between Siver Solutions and
third parties, the purchasers of the units to be constructed, did not provide for
any payment to Silver Solutions.
[9] Furthermore, it was not denied by the provisional liquidators that Remax
Legacy marketed the units on the applicant ’s behalf . It would thus follow that
the units were sold by the applicant , or on its behalf by Rema x Legacy .
[10] In a letter dated 5 September 2024 addressed to the provisional liquidators by
the first respondent , the second to fourth liquidators were advised that:
(a) Silver Solutions did not appoint the first respondent as it was appointed by
the applicant to attend to the transfer of the units of the De Velde
develop ment and to receive the proceeds in respect of the sale of the said
units and to pay such proceeds to the applicant ;
(b) The first res pondent was repeatedly advised by the applicant that Silver
Solutions were fully reimbursed for its construction -related expenses and
consequently, that the entire amount of proceeds so rec eived, befell the
applicant;
(c) It was further pointed out to the provisional liquidators that the applicant
was the primary beneficiary of the transactions.
[11] The second to fourth responden ts replied curtly to the aforementioned letter
that they demanded the first respondent to deposit all amounts paid to them
and held in trust , in terms o f the agreements between the third parties and
Silver Solutions , into the bank accounts of the insolvent estate .
[12] The prem ise upon which the second to fourth respondents relied for their
aforementioned demand, related to their contention expressed in a letter
dated 211 August 2024 where they stated that the said funds were held for
the benefit of Silver Solutions as proceeds of a property sold by it. It was
further contended on behalf of Silver Solutions that the applicant had financed
Silver Solutions initially in terms of a written loan agreement which was later
replaced by an oral agreement. Neither of the two agreements were produced
and it was never disputed that Silver Solutions were paid in full for their
expenses relating to the De Velde development. Furthermore , on a previous
occasion the member of Silver Solutions admitted on oath that no monies
were lent and/or advanced to Silver Solutions in terms of an alleged loan
agreement.
[13] The said member of the CC further confirmed that he had instructed the first
respondent to pay over to the applicant the proceeds of the alleged sale of
property “ as repayment of the loan.” That very statement was in direct conflict
with the second to fourth respondents’ allegation in the answering affidavit
that the resoluti on adopted by Silver Solutions was “ falsified”. The
aforementioned statement by the member of Silver Solutions confirms the
allegations by the applicant and the first respondent that Siver Solutions gave
an instruction that the funds held in trust were for the benefit of the applicant .
[14] A further important issue that gainsays the allegation of a loan to Silver
Solutions was the fact that the latter levied VAT on its invoices rendered to the
applicant in respect of its construction expenses, which if it was repayment of
a loan, would not attract VAT. The second to fourth respondents did not
dispute the lev ying of VAT on the said invoices.
[15] The second to fourth respondents in their answering affidavit bemoaned the
fact that the applicant sought final relief in motion proceedin gs whilst there
existed a genuine factual dispute on the papers. The alleged factual dispute
related to the nature of the relationship between Silver Solutions and the
applicant . On the one hand the applicant alleged a mere contractual
relationship for the development of the De Velde proje ct, and on the other
hand the second to fourth respondents alleged a loan agreement.
[16] There is no merit in the alleged factual dispute .1 The alleged dispute can
readily be resolved on the pa pers filed. In view of what is recorded earlier , no
proof was provided to support the alleged loan agreement . Furthermore, the
undisputed facts recorded earlier pointing to a relationship of contractor and
employer clearly gainsays the said allegation. In particular, it was not disputed
1 See Wightman t/a JW Construction v Headfour (Pty) Ltd et al 2008( 3) SA 371 (SC A); see also
Plascon -Evans Paint Ltd v Van Riebeeck Paints (Pty) Ltd 1984 SA (3) SA 523 (A)
that Remax Legacy marketed the units and sold them on behalf of the
applicant , the latter being the owner of the property on which the development
was undertaken . The purchasers of the units were to pay the proceeds into
trust with the first respondent, who was appointed by the applicant to attend to
the transfer of the sold units, for the primary benefit of the applicant.
[17] It follows that the second to fourth respondents failed to prove that the funds
held in trust were so held for the benefit of Silver Solutions and hence accrued
to the insolvent estate.
[18] The applicant sought inter alia declaratory orders . In terms of the provisions of
section 21(1)(c) of the S uperior Act, 10 of 2013, this co urt has the power :
“to in its discretion , and at the instance of any interested person, to
enquire into and determine any existing , future or contingent right or
obligation , notwithstanding that such per son cannot claim any relief
consequential upon the determination .”
[19] The determination of an application for a declarator y order requires a two -
stage enquiry.2 Firstly, the enquiry is to determine whether the person has a n
interest in and existing , future or contingent right, and , secondly , should the
court be satisfied that such an interest exists , it is to be considered whether to
grant such order.
[20] In view of all the foregoing, the applicant has a clear and enforceable interest
in and to the funds held in trust by the first respondent. Consequentl y, the
applicant is entitled to the declaratory relief it sought as well as the
consequential relief following on the declaratory relief.
[21] There remains the issue of costs. In its notice of motion, the applicant sought
cost only in the event of opposition. From the foregoing it is clear that the
second to fourth respondents’ opposition was frivo lous. No substantive
2 Cordiant Trading CC v Daimler Chrys ler Financial Services (Pty) Ltd 2005(6) SA 205 (SCA)
defence was raised and contradictory statements were made by them in their
answering affidavit as recorded earlier. It would thus be fair and reasonable
that the second to fourth respondents be ordered to pay the costs of
opposition.
[22] Accordingly , I grant the following order:
1. It is ordered that:
(a) The funds in the amounts of R 778 655.50 and R 2
195 000.00 held in trust by the first respondent do not
constitute an asset, and/or vest in the insolvent estate of
Silver Solutions 1205 CC , with registration number
2005 /081268/23 (in liquidation) ;
(b) The applicant is entitled to claim payment of the funds
referred to in paragraph (a) above;
(c) The first respondent is authorised to release the funds
referred to in paragraph (a) above, currently retained by it in
trust to the applicant ;
2. The first respondent is directed to immediately upon the granting of
this order, effect transfer of the amount of R 778 655.50 in respect of
unit […] retained by it on trust to the applic ant;
3. The first respondent is directed to immediately upon the granting of
this order, effect transfer of the amount of R 2 195 000.00 in respect
of unit […] retained by it on trust , to the applicant ;
4. The second to fourth respondents are directed to pay the costs
occasioned by the opposition on the scale of attorney and client,
such costs to include the costs consequent upon the employ of two
counsel .
C J VAN DER WESTHUIZEN
JUDGE OF THE HIGH COURT
On behalf of Applicant: Adv J Hershenshohn SC
Adv SN Davis
Instructed by: Tintingers Incorporated
On behalf of 2-4 Respondent s: Adv S Jansen van Rensburg SC
Instructed by: John Walker Attorneys Incorporated
Date of hearing: 17 March 2025
Judgment handed down: 06 June 2025