THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Not reportable
Case no : 909/2023
In the matter between:
DR WAA GOU WS (JOHANNESBURG) APPELLANT
(PTY) LTD
and
HR COMPUTEK (PTY) LTD FIRST RESPONDENT
YOLANDI ANN MES SECOND RESPONDENT
JOHANNES HENDRICK DU PLESSIS
N O THIRD RESPONDENT
MARIAN OELOFSEN N O FOURTH RESPONDENT
WELCOME NORMAN N O FIFTH RESPONDENT
MASTER OF THE HIGH COURT
JOHANNESBURG SIXTH RESPONDENT
Neutral citation: Dr Waa Gouws (Johannesburg ) v HR Computek ( Pty) Ltd and
Others (909/2023 ) [2025] ZASCA 103 (2025)
Coram: MBATHA, MOTHLE, HUGHES and UNTERHALTER JJA and
MODIBA AJA
Heard: 27 May 2025
Delivered: This judgment was handed down electronically by circulation to the
parties’ representatives by email, publication on the Supreme Court of Appeal website
and released to SAFLII. The date and time for hand -down of the judgment is deemed
to be 11h00 on 15 July 2025.
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Summary: Company Law – locus standi of directors in terms of s 354(1) of the
Companies Act 61 of 1973 – residual powers of directors of wound -up company in
bringing application to rescind order for winding up – whether a company being finally
wound -up possessed necessary locus standi to bring an application to rescind or set
aside a provisional order for winding -up – whether the directors of a finally wound -up
company had residual powers to bring an application for rescission of a winding -up
order without c o-operation of its liquidators.
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ORDER
On appeal from: Gauteng Division of the High Court, Johannesburg (Coppin J , sitting
as court of first instance):
The appeal is dismissed with costs.
JUDGMENT
Mbatha JA (Mothle, Hughes and Unterhalter JJA and Modiba AJA concurring) :
[1] This appeal concerns the following cardinal questions of law. First, whether the
company that is finally wound -up has locus standi to bring an application to rescind
the provisional or final winding -up order. Second, whether such an application should
be brought in terms of s 354(1) of the Companies Act 61 of 1973 (the Companies Act)
or the common law. Third, whether it must do so with the assistance of the liquidators.
[2] On 21 November 2019 , the first respondent, HR Computek (Pty) Ltd (HR
Computek) was placed under a provisional winding -up order by the Gauteng Division
of the High Court, Johannesburg (high court) . A final order was made on 6 January
2020 . The second, third and fourth respondents were appointed as joint liquidators .
In July 2021 HR Computek brought an application seeking the rescission of the
winding -up order and the setting aside of the certificate of appointment of the joint
liquidators (the rescission application ).
[3] The rescission application was predicated on the alleged fraudulent
misrepresentation by the appellant, Dr Waa Gouws (Johannesburg) (Pty) Ltd (the Dr
Waa Gouws company ), acting at the instance of its director, Ms Yolandi Ann Mes (Ms
Mes) . In addition, HR Computek averred that the application for its winding -up was
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never received by it . It was therefore unaware of the application , and as a result , it was
deprived of an opportunity to oppose the winding -up application.
[4] In opposing the rescission application, the Dr Waa Gouws company challenged
the locus standi of HR Computek by way of a point in limine . It contended that such
an application could only be brought by a member, creditor or liquidator as envisaged
in s 354(1) of the Companies Act.1 As a result, HR Computek, assisted by its sole
director, Mr Harry Chakala, ha d no locus standi to bring the application for the
rescission of the winding -up order. In addition, the Dr Waa Gouws company alleged
that HR Computek ought to have brought the application with the consent or co -
operation of the joint liquidators.
[5] In opposing the point in limine , HR Computek relied on the director’s residual
powers to oppose the granting of the provisional and fi nal winding -up orders in terms
of the common law. Consequently, there was no reason, so it contended, why a
company through its directors, and without the consent and co -operation of the
liquidators, could not apply for the setting aside of an order granted in its absence.
[6] The argument raised by HR Computek found favo ur with the high court , which
had separated the determination of the point in limine from the merits of the application
for the rescission of the final winding -up order . On 12 July 2023, the high court (per
Coppin J) dismissed the point in lim ine in respect of the locus standi of HR Computek.
Alongside the dismissal of the point in limine , it upheld the point in limine raised by HR
Computek regarding the locus standi of Dr Waa Gouws (in person), an insolvent, who
acted for the Dr Waa Gouws company without the consent of the trustee. As a result,
it ordered that Krige attorneys or any other attorney purporting to act on behalf of the
Dr Waa Gouws company , deliver proper and acceptable proof of its mandate and
authority to act for that company within ten days of the handing down of its order. It
further ordered that in the event of non -compliance with the latter order, the
respondents (HR Computek and Mr Chakala ), if so advised, may apply for the strike -
out of the notice of opposition and affidavits filed for the Dr Waa Gouws company in
1 Section 354 of the Companies Act 61 of 1973 was retained and continues to be applicable as
envisaged in Schedule 5 Item 9 of the Companies 71 of 2008.
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the matter. The costs were reserved for the court that w ould determine the merits of
the rescission application.
[7] Aggrieved by the decision of the high court, the Dr Waa Gouws company
sought leave to appeal the judgment and order of the high court. The high court
granted leave to appeal to this Court only on the question of the locus standi of HR
Computek.
[8] It is against this background that we have to consider the following issue s: First,
whether the high court was correct in finding that there was no reason why the
company cannot, through its directors, and without the co -operation of its liquidators,
oppose or set aside the winding -up order granted in its absence. Second , whether s
354(1) did not find application in this case. Third, whether the company through its
directors could bring the application for rescission or setting aside of a winding -up
order.
[9] The high court in arriving at its decision , relied upon the judgment s of Storti v
Nugent and Others (Storti )2 and Praetor and Another v Aqua Earth Consulting CC
(Praetor)3. In Storti , the court concluded that where a winding - up order is assailable,
a company may apply for rescission under the common law, provided it shows
“sufficient cause”.4 Later on, in Praetor , the court reasoned that, since the directors
may oppose or appeal a winding -up order in the company’s name, there was no
rational basis to distinguish that from seeking rescission of an order obtained without
notice. In that regard, the court invoked Storti’s recognition of a right to rescind. The
same reasoning was followed by the court in WN Attorneys Incorporated v Victor NO
and Others5 where it held that the company and the directors have the ‘residual power
to oppose the final winding -up order and, by parity of reasoning, also apply for
rescission’.
2 Storti v Nugent and Others 2001 (3) SA 783 (W) (Storti ).
3 Praetor and Another v Aqua Earth Consulting CC (162/2016) [2017] ZAWCHC 8 (Praetor ).
4 Storti at 807 A -C.
5 WN Attorneys Incorporated v Victor N.O and Others [2024] ZAGPPHC 74 at para 9.
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[10] The court in Praetor followed the decision in O'Connell Manthe & Partners Inc
v Vryheid Minerale (Edms) Bpk (O’Connell ) where it was reasoned that since the
company in final liquidation retains the residual power to appeal against such order
acting through its board of directors, without the consent or co -operation of the
liquidators , ‘there is no reason why a company c ould not take the necessary steps to
oppose the confirmation of a provisional order ’.6 By the same token, the court in
Praetor held that there was no logical reason why a company analogously could not
apply for the rescission of the winding -up order.
[11] Before this Court, the Dr Waa Gouws company conten ded that an application
for the stay or setting aside of a winding -up order of a company is only competent if it
is made in compliance with s 354(1). In support of its contention, it submitted that
though the directors may have residual powers to oppose the winding -up and/or to
appeal a final order, the directors cannot do so through a resolution by a defunct board,
as held in Venbor (Pty) Ltd v Vendaland Development Co (Pty) Ltd t/a Camp Store
(Venb or).7 They posited that as envisaged in s 348 of the Companies Act , the board
of directors of HR Computek became defunct from the date of presentation of the
winding -up application, hence no valid resolution could be passed. In addition, though
conceding that the directors have residual powers to appeal a final winding -up order,
the directors could not do so in the name of the company. For this contention, reliance
was placed on the dicta in Impac Prop Cc v THF Construction CC (Impac ).8 In Impac ,
the court held that only the parties expressly mentioned in s 354(1) h ave locus standi
to bring an application for setting aside or rescinding the winding -up order and not the
company in liquidation. Furthermore, Impac also held that the failure to join the
liquidators in the application was fatal as the liquidators have a direct and substantial
interest in the matter.
[12] In addition, the Dr Waa Gouws company also placed reliance on the decision
in Ragavan and Another v Kal Tire Mining Services SA (Pty) Ltd and Others
6 O'Connell Manthe & Partners Inc v Vryheid Minerale (Edms) Bpk 1979 (1) SA 553 (T) (O'Connell ) at
558A.
7 Venbor (Pty) Ltd v Vendaland Development Co (Pty) Ltd t/a Camp Store 1989 (2) SA 619 (V) ( Venbor )
at 626B-C.
8 Impac Prop Cc v THF Construction CC [2019] ZAGPJHC 497 (Impac ) paras 4 and 11.
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(Ragavan )9 which pronounced that s 354(1) is the only legislative provision that
confers locus standi to a company which intend s to bring an application for rescission
or of setting aside of the winding -up order. In support of its contentions that a wound -
up company could not pa ss a valid resolution to authori se the application and
appointment of legal representatives , it placed its reliance on the dicta in Venb or.10
[13] Conversely, HR Computek submitted that the high court was correct in its
reasoning and findings. The high court’s reliance on Stort i and Praetor were sound ,
as the two c ases recogni sed the residual powers of the directors and the company to
oppose, appeal , rescin d or set aside liquidation orders . It further submitted that there
was no merit in the submission s by the Dr Waa Gouws company that HR Computek
should have sought the consent from, or the co -operation of the joint liquidators. In
addition, it submitted that s 354(1) did not preclude the directors from bringing an
application to rescind the judgment.
[14] Section 354(1) provides as follows: ‘the Court may at any time after the
commencement of the winding -up, on the application of any liquidator, creditor o r
member, and on proof to the satisfaction of the Court that all proceedings in relation
to the winding -up ought to be stayed or set aside, make an order staying or setting
aside the proceedings . . .’.11 In interpreting this provision, the high court correctly found
that ‘ [t]he “liquidator, creditor or member ” envisaged in that section need not be “a
party affected” by the winding -up proceedings, in order to have standing to apply for
the stay of the proceedings or for the rescission of the winding -up order’. Rule 42(1) (a)
of Uniform Rules of Court states that an application for rescission may be brought by
‘any affected ’ party. The rescission application brought in terms of Rule 42(1) (a) is not
restricted to a liquidator, creditor or member. In fact, it refers to ‘any affected ’ party ,
whether it be a company or its directors using their residual power to apply for the
rescission of the winding -up orders. Furthermore, the Storti and Praetor judgments on
which the high court relie d, have been consis tently followed. Whilst acknowledging
that there are conflicting decisions that differ from Storti and Praetor , I respectfully find
9 Ragavan and Another v Kal Tire Mining Services SA (Pty) Ltd and Others [2019] ZAGPPHC 455 par a
14.
10 Venbor fn 6 above .
11 Emphasis added.
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that the findings in Impac and Venb or are incorrect . In this regard the conclusions
drawn in Impac and Venb or, that s 354(1) is the sole legislative provision that confers
locus standi to a company after the commencement of winding -up, is incorrect.
[15] Section 354(1) must be interpreted in line with the trite principles of
interpretation confined in Natal Joint Municipal Pension Fund v Endumeni Municipality
judgment ( Endumeni ) and confirmed in Airports Company South Africa v Big Five Duty
Free (Pty) Limited and Others .12 Endumeni reiterated that the process of interpretation
is a unitary and objective exercise that pays due regard to the text, context and
purpose of the document or instruments being interpreted.13 In Cool Ideas 1186 CC v
Hubbard and Another (Cool ideas ),14 the Constitutional Court held that the purposive
approach, involves the interpretation of the legal text, such a s statutes or contracts, in
a manner that gives effect to the underlying purpose or intention behind the text. It
emphasised that the words of statute s should be understood in their ordinary
grammatical meaning , except where it would lead to absurdity.
[16] I conclude that Section 354(1) articulates clearly and unequivocally that a
liquidator, creditor or member has locus standi to bring an application to stay or rescind
the winding -up in terms of the provision. This aligns with the insolvency proceedings
which are initiated by creditors and members of the company. And the liquidation
process involves the oversight of the liquidators.
[17] I observe that the language utilised in s 354(1) specifically identifies the role
players . It does not require that we read in parties, including the company or directors
thereof, to reflect the legislative intent or purpose in the provision . This provision does
not expressly , expl icitly or implicitly exclude a company in liquidation or a board of
directors from bringing such an application. I conclude that the drafters of the 197 3
Companies Act never envisioned the exclusion of the residual powers of the directors
and company in the context of the common law. Section 354(1) does not take away
12 Natal Joint Municipal Pension Fund v Endumeni Municipality [2012] ZASCA 13; [2012] 2 All SA 262
(SCA); 2012 (4) SA 593 (SCA) (Endumeni ) para 18 and confirmed in Airports Company South Africa v
Big Five Duty Free (Pty) Limited and Others [2018] ZACC 33; 2019 (2) BCLR 165 (CC); 2019 (5) SA 1
(CC) par a 29.
13 Endumeni above paras 18 and 19 .
14 Cool Ideas 1186 CC v Hubbard and Another [2014] ZACC 16; 2014 (4) SA 474 (CC); 2014 (8) BCLR
869 (CC) para 28.
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the inherent right acquired in terms of common law for the company in liquidation for
obvious reasons . The common law right provide s the company with an opportunity to
challenge its winding -up, where it should never have been placed in liquidation for a
variety of reasons , including fraudulent conduct. The high court correctly recogni sed
that there are two distinct legal frameworks that govern the rescission application s in
this scenario.
[18] On the other hand, t he reasoning of the court in Impac was based on an
incorrect interpretation of s 354(1) , as it found that only the parties expressly
mentioned in s 354(1) have locus standi to commence such proceedings. Equally so,
where it held that the liquidator h as to give consent to the proceedings, or co-operate
with the applicant , because a liquidator has a direct and substantial interest. The
distinction between the two legal frameworks is unmistakable . The directors have
fiduciary duties to the company in relation to the opposition of the final winding -up
order , whilst the provisional liquidator’s focus is on the preservation of the assets,
protection of assets and investigation of the affairs of the company, as fully set out in
ss 386 to 370 of the Companies Act.
[19] Similarly, the Ragavan decision relied upon by the Dr Waa Gouws company
was also incorrect in concluding that only s 354(1) confers locus standi to a party to
the exclusion of the common law. Of significance is that it ignored that it was dealing
with different stakeholders, the company and the board of directors , and on the other
hand the s 354(1) applicants, being the liquidators, creditors and members of a
company. The common law specifically gives the residual power to the company and
the directors . The promulgation of s 354(1) was never intended to divest the company
and the directors of their common law rights.
[20] The Dr Waa Gouws company, misconstrue d the dicta in Ward and Another v
Smit and Others : In re Gurr v Zambia Airways Corporation Ltd (Ward ). In Ward , this
Court did not conclude that an application for a rescission of a winding -up had to be
brought in terms of s 354(1), nor did it hold that such an application cannot be brought
in terms of the common law or Rule 42. In Ward , this Court held that ‘ [i]n order to have
the final winding -up order set aside the appellants were obliged to invo ke the
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provisions of s ection 354(1) of the Act ’. 15 This was said in reference to the liquidators ,
who had brought the application in Ward, as s 354(1) accords them the locus standi .
It never pronounced that this was a general rule. Moreso, this was articulated in an
obiter dictum statement.
[21] I now turn to consider the legal authorities that the high court relied upon in
reaching its conclusion. In Storti , that court found that a wound -up company,
represented by the board of directors, has a standing to apply for rescission of a
provisional winding -up order. This conclusion substantiates the principle that the
company continues to exist, even in the face of the winding -up orde r.16 This aligns with
the legal concept that the directors retain the residual powers t o challenge and/or
appeal the winding -up order. It can therefore be unequivocally concluded that the
residual powers of the directors extend to the rescission of the winding -up orders in
accordance with the common law or Rule 42.
[22] I find that , the court in Storti conclusively and correctly found that neither the
common law nor Rule 42 requires that the company or directors be assisted by the
liquidator or any other person. In establishing the requirements of a sufficient cause in
a rescission application , the court emphasi sed that only two elements have to be
satisfied : ‘(1) the party seeking relief must present a reasonable and acceptable
explanation for his default, and (2) on the merits , such a party must have a bona fide
defen ce which, prima facie , carries some prospect of success’.17
[23] In Praetor , where the court held the same perspective as in Storti and
expressed itself as follows: ‘ [i]t appears to be generally accepted that a company’s
directors have what has been described as “residual powers” to act on the company’s
behalf in causing it to oppose the confirmation of the rule in a provisional winding -up,
or to appeal against a winding -up or to appeal against a winding -up order’.18 In support
of this contention , it refer red to a useful collection of the relevant jurisprudence put up
by Gautschi AJ in Storti . The court in Praetor went on to conclude that ‘…there is no
15 Ward and Another v S mit and Others : In re Gurr v Zambia Airways Corporation Ltd [1998] 2 All SA
479 (A) (Ward ) para 10.
16 Richter v Absa Bank Limited [2015] ZASCA 100; 2015 (5) SA 57 (SCA) par a 10.
17 Storti fn 2 above at 807B-C.
18 Praetor fn 3 above para 4.
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rational basis to distinguish the standing of a board of directors to appeal in the
company’s name against a winding -up order from its standing similarly to apply to set
aside such an order obtained without its knowledge’ .19 (Emphasis added.) I agree with
this conclusion.
[24] In addition, Preator in affirming the finding in Storti that a company has the locus
standi to rescind a winding -up order , it stated that ‘ [i]t is clear from the context that the
learned judge had in mind that the application to rescind would be mounted by the
company at the instance of its board, not its liquidators’. It then went on to accept that
the applicant (in Praetor ) had standing to bring the rescission application. The court s
in Storti and Praetor conclusively established, which I respectfully accept as valid, that
there is no logical reason to distinguish the residual power to bring an application to
set aside or appeal the winding -up order to the right to rescind a liquidation order in
terms of the common law, Rule 42 or in terms of s 354(1).
[25] The pivotal conclusions reached in Storti and Praetor judgments were also
confirmed in the O’Connell judgment . The court in O’Connell specifically affirmed ‘ that
the company against which a final liquidation order is granted may appeal against such
order acting through its board of directors and without the co -operation of the
liquidator. This being the position, there is no reason why the company acting as
afores aid cannot take the necessary steps to oppose the confirmation of a provisional
liquidation order . It added that ‘[t]his would include not only opposition and appearance
on the return day but also any proceedings to anticipate such return date’.20 Similarly
in Kets Group (Pty) Ltd v Business Partners Limited (Kets)21 the court followed the
reasoning in Storti and Praetor and found them to be progressive in that there is no
logic in that the application for rescission should be brought with the assistance of the
liquidator . This view was also endorsed in WN Attorneys Incorporated v Victor N.O
and Others .22
19 Preator fn 3 above para 4.
20 Ibid O’Connell at 558.
21 Kets Group (Pty) Ltd v Business Partners Limited [2024] ZAECMKHC 131 para 35.
22 WN Attorneys Incorporated v Victor N.O and Others [2024] ZAGPPHC 74 para 9.
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[26] In my view and by parity of reason, I have come to the same conclusion as the
high court. The high court was correct in finding that HR Computek has locus standi
to apply for a rescission of the winding -up orders . And that it did not have to bring the
application in terms of s 354(1) nor that it be assisted by the joint liquidators of the
company .
[27] In the result, I make the following order :
The appeal is dismissed with costs.
_______________
Y T MBATHA
JUDGE OF APPEAL
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Appearances
For the appellant : A van der Walt
Instructed by : Tsihlas and Krige Attorneys Inc., Pretoria
Phatshoane Henny Attorneys , Bloemfontein
For the first respondent : D Z Kela
Instructed by: Ndumiso Voyi Inc., Johannesburg
MM Hattingh Attorneys , Bloemfontein .