IN THE HIGH COURT OF SOUTH AFRICA
(WESTERN CAPE DIVISION, CAPE TOWN)
JUDGMENT
Reportable
Case no: 12598/2024
In the matter between:
STEPHEN MALCOLM GORE N.O. First Applicant
DONOVAN THEODORE MAJIEDT N.O. Second Applicant
NONKULULEKO LAWRENCIA TWALA N.O. Third Applicant
NICHOLAS TIMKOE N.O. Fourth Applicant
GREG MICHAEL TIMKOE N.O. Fifth Applicant
[In their capacities as the joint provisional liquidators
of Reeco Holdings (Proprietary) Limited (in liquidation)]
and
BOTLIERSKOP PRIVATE GAME RESERVE
(PROPRIETARY) LTD First Respondent
THOMAS ARNOLDUS NEETHLING Second Respondent
GEDEELTE 68 ROOIPOORT (PROPRIETARY) LTD Third
Respondent
Neutral citation: Gore NO and Others v Botlierskop Private Game Reserve (Pty)
Ltd (Case no 12598/24) [2026] ZAWCHC ___ (26/02/2026)
Coram: DAVIS AJ
Heard: 5 November 2025
Delivered: 26 February 2026
Summary: Claim based on the condictio furtiva – required to establish
theft – simulated transaction being part of a scheme calculated to defraud the fiscus
– payment by a company on the strength of a fictitious invoice dressed up to
disguise the true nature of the payment – not to be equated with theft of company
funds where there was no intention to despoil the company and the company
received value for the payment in terms of the real agreement between the parties
as opposed to the simulated transaction – need establish damages in order to
succeed with the condictio furtiva – no damages suffered where the company
received what it bargained for.
ORDER
1 The main application under case number 12598/2024 is dis missed with
costs, such costs to include the cost of Senior Counsel payable on Scale C
and Junior Counsel payable on Scale B.
2 The respondents’ counterapplication under case number 12598/2024 is
dismissed.
3 The applicants are ordered to pay the respondent s’ wasted costs incurred in
connection with the counterapplication on the party and party scale, such
costs to include the cost of Senior Counsel payable on Scale C and Junior
Counsel payable on Scale B.
4 The respondents’ application for a stay of the main application under case
number 12598/2024 is dismissed with costs, including the cost of Senior
Counsel payable on Scale C and Junior Counsel payable on Scale B.
5 The Registrar is directed to send a copy of this judgment to the Director of
Public Prosecutions and to the South African Revenue Service, for such
investigation and further action as may be considered necessary.
JUDGMENT
DAVIS AJ:
Introduction
[1] This is an application based on the condictio furtiva ,1 alternatively the
provisions of s 26(1) of the Insolvency Act.2
1 Despite its name, the condictio furtiva is a delictual action for the recovery of patrimonial loss as a result
of theft; it is a remedy available to an owner of a thing, or someone with sufficient interest in it, against
a thief and his heirs for damages (see Crots v Pretorius 2010 (6) SA 512 (SCA) para 3; Chetty v Italtile
Ceramics Limited 2013 (3) SA 374 (SCA) para 10).
2 Section 26(1) of the Insolvency Act 24 of 1936 reads as follows:
[2] The applicants are the liquidators of Reeco Holdings (Proprietary) Limited
(‘Reeco’), which was placed under a final winding -up order on 22 August
2023 on the basis that it was unable to pay its debts.
[3] The respondents are a company called Botlierskop Private Game Reserve
(Proprietary) Limited (‘Botlierskop’) and Thomas Neethling (‘Nee thling’),
the sole director and controller of Botlierskop, who was also a director of
Reeco at all material times prior to 10 August 2022.
[4] Reeco promoted an ambitious scheme involving the development of a
private game reserve near the Mokala National Park in the Northern Cape.
The project envisaged the construction of 50 luxury villas in a conservation
area of 500 hectares of land to be purchased by Reeco, which would require
funding of some US$ 200 000 million (R3.4 billion) which Reeco did not
have.
[5] Reeco commenced its operations by purchasing 5 farms in the Northern
Cape, together with game and movable assets, at a total cost of some R 149
“(1) Every disposition of property not made for value may be set aside by the court if such disposition
was made by an insolvent-
(a) more than two years before the sequestration of his estate, and it is proved that, immediately
after the disposition was made, the liabilities of the insolvent exceeded his assets;
(b) within two years of the sequestration of his estate, and the person claiming under or benefited
by the disposition is unable to prove that, immediately after the disposition was made, the
assets of the insolvent exceeded his liabilities:
Provided that if it is proved that the liabilities of the insolvent at any time after the making of the
disposition exceeded his assets by less than the value of the property disposed of, it may be set
aside only to the extent of such excess.”
million. As Reeco did not have its own capital, it acquired funding from a
company called Fantom Operations Limited (‘Fantom’) , who is a proved
creditor in the estate.
[6] Without the injection of vast sums of money, the project was doomed to fail.
Predictably, Reeco ran out of money and collapsed. Not a single villa was
built; indeed, construction had not even commenced by the time Reeco was
wound-up.
[7] At the date of the winding-up, Reeco’s liabilities exceeded its assets by over
R 86.5 million. Reeco was inde bted to Fantom and other creditors in an
amount of some R 185.5 million, while the estimated value of its immovable
and movable assets amounted to some R 98.9 million. There is no prospect
that Recco’s creditors will be paid in full.
[8] Wille J granted an or der convening a commission of enquiry in terms of ss
417 and 418 of the 1973 Companies Act into the trade, dealings, affairs and
property of Reeco (‘the Enquiry’) and appointing retired Mr Justice Brand as
Commissioner of the Enquiry
[9] This application is f ounded on documents obtained at the Enquiry and
portions of the record of the evidence given by Neethling at the Enquiry,
which is admissible as proof of the fact that he testified to what was
recorded at the Enquiry.3 Reliance is also placed on the transcript of portions
of the evidence given at the Enquiry by one Jonathan Engelbrecht, a former
director of Reeco (‘Engelbrecht’), and one Jaco Avenant, the former
financial director of Reeco (‘Avenant’). The applicants sought the admission
3 Du Plessis NO v Oosthuizen 1995 (3) SA 604 (O) 621 F – G.
of the evidence given at the Enquiry in terms in terms of s 3(1)(c) of the Law
of Evidence Amendment Act 45 of 1988. The respondents did not oppose
the admission of the evidence. Indeed, the respondents relied in argument on
the evidence given by Neethling, Engelbrecht and Avenant at the Enquiry.
The relief sought by the liquidators
[10] In this application the liquidators seek to recover an amount of R 9.2 million
which Neethling, in his capacity as a director of Reeco, caused to be paid to
his company, Botlierskop, on 3 March 2022.
[11] The liquidators allege that the payment to Botlierskop was a fraudulent
arrangement, in which Engelbrech t was complicit. Reeco did not owe
Botlierskop the money, and had no obligation to pay it. The payment was an
unlawful abstraction of Reeco’s funds. Neethling and Botlierkop are joint
wrong-doers and are liable to repay the amount of R 9.2 million to the
liquidators on behalf of Reeco.
[12] In the altern ative, the liquidators allege that the payment was a disposition
without value as contemplated in section 26(1) of the Insolvency Act 24 of
1936 (‘the Insolvency Act’) read with s 340 of the 1973 Companies Act .
Reeco received no value for the payment, whic h therefore falls to be set
aside as a disposition without value.
[13] In the hearing Mr Woodland, who appeared for the applicants together with
Mr Harrington, abandoned reliance on the disposition without value. He
nailed his colours firmly to the mast, choos ing to rely solely on the delictual
claim based on theft.
The circumstances surrounding the payment of R 9.2 million
[14] The facts and circumstances giving rise to the payment of R 9.2 million are
not in dispute.
[15] As has been mentioned, the Reeco project involved the purchase of five
farms adjacent to the Mokala National Park. One such farm was Waterval,
which was owned by Gedeelte 68 Rooipoort (Proprietary) Limited
(‘Gedeelte 68’), a company controlled by Neethling.
[16] The purchase price orally agreed for W aterval was an amount of R 28
million. However, Englbrecht and Neethling devised a scheme whereby R 8
million of the purchase price could be siphoned off and paid to Neethling
overseas. It was agreed that only R 20.3 million would be disclosed on the
deed of sale and paid to Gedeelte 68, and R 8 million would be paid to a
Dutch Stichting in the Netherlands controlled by Neethling, called EMJA
Stichting (‘EMJA’). (Needless to say, the transaction raises obvious red
flags with regard to contraventions of fore ign exchange regulations and the
evasion of transfer duty and capital gains tax.)
[17] Pursuant to this scheme, a fictitious pre -emptive right was created in favour
of EMJA to purchase Waterval, which right EMJA ‘sold’ to Reeco for R 8
million. The deed of sale entered into between Gedeelte 68 and Reeco in
respect of Waterval only reflected a purchase price of R 20.3 million, instead
of the true purchase price of R 28 million.
[18] However, Neethling subsequently bethought himself, having taken advic e
from his attorney, and he asked that the R 8 million be added to the purchase
price for Waterval . Engelbrecht told him that it was too late to change the
deed of sale, and that they would have to find another way to deal with the R
8 million.
[19] Engelbrecht, Neethling and Avenant, all being directors of Reeco, then
sought other ways to justify the payment of the additional R 8 million of the
purchase price for Waterval. It was agreed that the R 8 million would be
couched as a ‘consultancy fee’ payabl e to another entity controlled by
Neethling, being Botlierskop.
[20] In pursuance of th is revised scheme, Botlierskop issued a fictitious invoice
to Reeco for R 9.2 million, comprising consultancy fees of R 8 million and
Vat of R 1.2 million, and a simulated, back-dated consultancy agreement
was signed by Engelbrecht, on behalf of Reeco, and Neethling, on behalf of
Botlierskop. Avenant then paid the R 9.2 million to Botlierskop on the
strength of the fictitious invoice, on 3 March 2022.
[21] One is therefore dealing with a scheme comprising two simulated
transactions, one being the deed of sale for Waterval, which understated the
true purchase price, and the other being the fictitious consultancy agreement
and invoice reflecting a charge of R 9.2 million for consultancy fees which
were never in fact rendered.
[22] The simulations were admitted by Neethling Engelbrecht and Avenant when
they testified at the Enquiry.
The case based on theft
[23] The liquidator’s case based on theft is founded on the allegation that
Neethling, while under a fiduciary duty to act in Reeco’s interests, caused a
payment of R 9.2 million of Reeco funds to be made to Botlierskop in
circumstances where no monies were owed to Botlierskop, the payment was
unauthorised, was made in Neethling’s interests, and did not benefit Reeco.
[24] In short, it is alleged that Neethling misappropriated Reeco funds and that
Botlierskop, controlled by Neethling, received the funds in the knowledge
that they were not owed to Botlierskop. Reliance was placed on R v Milne &
Erleigh (7) 1951 (1) SA 791 (A), S v Herholdt & Others 1957 (3) SA 236
(A), S v De Jager 1965 (2) SA 616 (A) and S v Hepker & Another 1973 (1)
SA 472 (W).
[25] Mr Van der Merwe, who appeared for the respondents with Mr Prinsloo,
argued that there can be no theft because Reeco, represented by three of its
four directors, understood the payment to be part of the purchase price for
Waterval, and they authorised the payment to Botlierskop in the full
knowledge of what it was actually for.
[26] In the circumstances, so it was contended, t here was no fraud or
misrepresentation as between the parties to the transaction (being Reeco,
Gedeelte 68 and Botlierskop), and no theft, as the company, with the full
knowledge of the facts, consented to the payment.
Analysis
[27] In order to succeed in the claim based on the condictio furtiva , the
liquidators have to show, on a balance of probabilities, that there was a theft
of Reeco funds.4
[28] In R v Herholdt and Others ,5 it was held that, in order to establish that two
payments constituted a theft, the prosecution had to prove that the accused a)
did not have the authority to make the payment s, and b) did not bona fide
believe that they were entitled to make the payments.6
[29] In order to establish theft, the liquidators are requi red to prove in this case
‘not only that the thing should have been taken without belief that the owner
… had consented or would have consented to the taking, but also that the
taker should have intended to terminate the owner’s enjoyment of his rights
or, in other words, to deprive him of the whole of the benefit of his
ownership.’ 7
[30] It is clear from the evidence of Neethling, Engelbrecht and Avenant that the
payment of R 9.2 made to Botlierskop was intended to be permanent, as the
payment was intended as part payment of the agreed purchase price payable
by Reeco for Waterval. Therefore, the requirements of an intention
4 Chetty v Italtile Ceramics Ltd (supra) para 10.
5 R v Herholdt and Others 1957 (3) SA 236 (AD).
6 R v Herholdt (supra) at 257.
7 Chetty v Italtile Ceramics Ltd (supra) para 10. At common law, theft has a wider meaning and includes furtum
usus, which involves the theft of the use of another person’s thing with the intention of returning it. There is no
question of furtum usus in this case, as the funds were not intended to be returned to Reeco at any time.
permanently to deprive the owner of the benefit of ownership has , in my
view, been met.
[31] More problematic for the liquidators, however, is the requirement that the
thing should have been taken without authority and without a bona fide
belief that Reeco had authorised the payment to Botlierskop.
[32] A print -out from the records of th e Companies and Intellectual Property
Commission (‘CPIC’) reveals that, at all material times, Reeco had four
directors, namely Neethling, Engelbrecht, Avenant and one Funokwakhe
Mcineka, who is not mentioned in the affidavits.
[33] Having regard to the conte nts of the transcripts of the evidence given at the
Enquiry by Neethling, Engelbrecht and Neethling, which the liquidators rely
on and which the respondents do not dispute, it is clear that:
a) the real purchase price agreed for Waterval was some R 28 million;
b) it was agreed that the purchase price would be split into two
payments, one of some R 20 million to Gedeelte 68 and one of R 8
million, first agreed to be payable to EMJA , and subsequently agreed
to be payable to Botlierskop when Neethling grew cold feet about the
payment to EMJA;
c) it was agreed that the purchase price disclosed on the deed of sale
concluded between Reeco and Gedeelte 68 would be only R 20
million odd, in order to reduce liability for Capital Gains Tax;
d) the invoice for R 9.2 million rendered by Botlierskop to Reeco for
consultancy services was fictitious, and was contrived to justify the
payment of R 9.2 million in terms of the revised scheme regarding the
payment of the purchase price for Waterval;
e) Neehling, Engelbrecht and Avenant all knew and understood that no
consultancy services had in fact been rendered by Botlierskop to
Reeco, and that the real reason for the payment of R 9.2 to Botlierkop
was to di scharge Reeco’s obligation to pay the balance of the agreed
purchase price for Waterval in the amount of R 8 million, to which
Vat was added;
f) Avenant authorised the payment on the strength of a document signed
by Neethling and Avenant that the payment was part of the structured
purchase price for Waterval.
[34] The evidence shows that three of the four directors of Reeco were fully
aware of the true reason for the payment to Botlierskop, and agreed to the
payment. Avenant interrogated the transaction, and authorised the payment
on the basis of what he understood to be the underlying agreement, namely
that it was part of the purchase price for Waterval which was still owing.
Leaving aside Neethling, who clearly had an inter est in the matter and
therefore could not participate in any decision whether or not to authorise
the payment,8 there is no evidence in the papers to show that, in terms of the
company’s Memorandum of Incorporation, two directors could not validly
authorize such a payment. In the circumstances it seems to me that Reeco,
8See s 75(5)(e) and (f) of the Companies Act 71 of 2008.
duly represented by two of its four directors, namely Avenant and
Engelbrecht, did in fact consent to the payment.
[35] Mr Woodland argued, however, that the company could not legally consent
to the payment in the circumstances of this case . In this regard h e referred
me to S v De Jager and Another,9 in which the Court rejected the proposition
that a company shareholder could give valid consent, in his capacity as
director, to the company being despoiled by him.10 The Court reasoned, inter
alia, that a director, who occupies a position of trust in relation to the
company, has authority to act for the company’s benefit, and not for his own
benefit.11
[36] In my view, the reliance on the case is misplaced, as the facts are
distinguishable. In De Jager, the Court found that the company had in fact
been despoiled : c ompany funds were in fact used for De Jager’s own
purposes, and not for the benefit of the company. The situation is different in
this case. It cannot be said that the payment did not benefit Reeco, as it
discharged Reeco’s admitted obligation to pay the b alance of the purchase
price agreed for the acquisition of Waterval, in circumstances where there is
no suggestion, let alone evidence on the papers, that the agreed price of R 28
million was excessive in relation to the value of what was purchased.
[37] On the facts of this case, I find that Reeco gave valid consent to the payment
to Botlierskop. That is sufficient to dispose of the claim based on theft.
9 1965 (2) SA 616 (A).
10 S v De Jager and Another (supra) 624G – 625F.
11 S v De Jager and Another (supra) 625B.
[38] Moreover, and in any event, I find that, in the circumstances of this case ,
Neethling could reasonabl y have entertained a bona fide belief that valid
consent had been given for the payment. This negates the second leg of the
test for theft referred to above.
[39] Having regard to the evidence, it seems to me that there was a series of
simulated transactions calculated to defraud the fiscus – the purchase price
for Waterval was understated in the deed of sale, which would have caused
an underpayment of transfer duty and capital gains tax , and no consultancy
services were in fact rendered by Botlierskop, so that Vat could not
legitimately be charged or claimed in respect thereof. But all of that is
irrelevant to the liquidators’ claim based on the condictio furtiva . I agree
with the submission by Mr Van der Merwe that a fraud on the South African
Revenue Ser vice (‘SARS’) cannot be equated with a theft from Reeco.
Whatever else one might say about the payment to Botlierskop – and there is
plenty to be said – it did not amount to a theft of Reeco funds.
[40] Besides the fact that the liquidators have not been able to establish the
requirements of theft, in my view there is another reason why the claim
based on the condictio furtiva must fail, namely that the liquidators have not
established that Reeco suffered damages as a result of the payment. This is
fatal to the claim based on the condictio furtiva, as the remedy is delictual
claim for the recovery of patrimonial loss suffered as a result of theft.12
[41] In this regard:
12 Crots v Pretorius (supra) para 3; Chetty v Italtile Ceramic Limited (supra) para 10.
a) Firstly, as has already been mention ed, there is no evidence that the
agreed purchase price of R 28 million for Waterval was inflated.
Keystone Property Consultants valued the land and improvements at
R 25 million in March 2022, and it appears that the sale price of R 28
million R 1.3 million owed to a neighbour for game and R 250 000.00
for the game lodge and hunting safari business carried out on the
farm. The purchase price of R 28 million does not strike me as
inflated or excessive in the circumstances. Reeco therefore did not
suffer any damages, as it received the value of Waterval. It got exactly
what it had bargained for.
b) Secondly, with regard to the Vat of R 1.2 million paid by Reeco on
the strength of the fictitious invoice for consulting fees, Avenant
testified at the Enquiry that the Vat was correctly handled in Reeco’s
books, that Reeco included the invoice in its Vat return (which I take
to mean that Reeco claimed the R 1.2 milli on as an input credit), that
SARS queried the invoice as Reeco’s Vat registration number was
incorrectly stated thereon, that the invoice was then corrected by the
insertion of the correct Vat registration number, and was accepted by
SARS (which I take to mean that SARS allowed the input credit of R
1.2 million). 13 That being the case, Reeco is not out of pocket in
respect of the R 1.2 million.
13 On the other side of the equation, Botlierskop would have had to account to SARS for the R 1.2 million
as output Vat.
[42] Finally, Mr Woodland contended that there is a duty on the Court to uphold
standards of commercial morality,14 and that to deny the liquidators’ claim
would be giving effect to an unlawful transaction, in asmuch as the payment
of R 9.2 million was ‘dressed up’ to disguise the true nature and purpose of
the payment, which was to evade the payment of taxes. I t ake a different
view of the matter.
[43] In my judgment, were this Court to uphold the liquidators’ claim, it would
be giving indirect effect to the simulated deed of sale which falsely reflects
the purchase price for Waterval as R 20 million instead of R 28 m illion,
resulting in a windfall of R 8 million for Reeco. That, in my view, is not the
way to uphold standards of commercial reality.
[44] In my judgment, the way to uphold commercial morality in this case is
firstly, to apply the well -established principle t hat, when a Court is
confronted with a simulated transaction, it will give effect to what the parties
really intended, rather than the simulation, 15 and secondly, to refer this
matter to the Director of Public Prosecutions, and to the South African
Revenue Service, for such investigation and further action as may be
considered necessary.
[45] For all these reasons, I conclude that the liquidators’ claim based on the
condictio furtiva cannot succeed.
The respondents’ counterapplication
14 S v Hepker 1973 (1) SA 472 (W) 484F.
15 Commissioner for the South African Revenue Service v NWK Ltd 2011 (2) SA 67 (SCA) para 43.
[46] The respondents brought a counterapplication in which they sought the
joinder of Gedeelte 68 as a third respondent, and the rectification of the deed
of sale entered into between Reeco and Gedeelte 68 for the acquisition of
Waterval, so as to reflect the correct purchase price of R 27 000 000.00
instead of R 20 347 000.00.16
[47] The remedy of rectification was sought as a defence against the liquidators’
claim based on theft. The dismissal of the claim based on theft renders it
unnecessary for me to determine the rectification issue. I shall therefore
dismiss the counterapplication on the ground that the relief has become
moot.
[48] It is not only unnecessary, but also undesirable, for me to decide the
rectification issue at this juncture. I am mindful of the fact that the incorrect
recordal of the true purchase price for Waterval may well give rise to
difficulties in the future - for one, the understatement of the purchase price
will likely result in an inflation of the liability for Capital Gains Tax when
the farm is sold. However, the rights and interests of SARS are implicated in
this case, and, s ince SARS has a clear legal interest in any claim for
rectification of the deed of sale for Waterval, it must be joined as a party to
any such proceedings.
The respondents’ application for a stay of the application
16 The difference between the amount of R 28 million referred to in the testimony at the s 417 Enquiry
and the R 27 million is that the amount of R 20 347 000.00 reflected in the Deed of Sale included an
amount of R 1 347 000.00 which Neethling owed to a neighbour for game, but which Reeco ultimately
paid directly to the neighbour. Neethling testified that, in order to arrive at the correct purchase price,
one had to add R 8 000 000.00 to the amount of R 20 347 000.00 and deduct R 1 347 000.00.
[49] The respondents also brought an application for the stay of the liquidators’
application, pending the determination of the action brought by Neethling,
Bottlierskop and Gedeelte 68, as plaintiffs, against the liquidators and othe rs
under case number 2025-037421 (‘the action’).
[50] In the action, the relief sought is a declaration that Fantom’s claim proved in
the winding-up of Reeco is invalid and of no force and effect, and an order
expunging the claim, alternatively an order directing the liquidators properly
to investigate the validity of Fantom’s claim against Reeco and to report to
the Court thereon.
[51] The thrust of the stay application is that Fantom was not a loan creditor of
Reeco, but an investor, that Fantom’s claim should have been challenged by
the liquidators in terms of s 45(3) of the Insolvency Act, and that if Fantom’s
loan claim is bad, Reeco was not and is not in fact solvent , so that there can
be no question of a disposition without value.
[52] The stay application was said to be relevant to the alternative claim brought
by the liquidators on the basis of s 26(1) of the Insolvency Act. It was
rendered moot when the liquidators abandoned that claim, and elected to
stand or fall by the main claim based on theft.
[53] In the circumstances, the stay application likewise falls to be dismissed on
the ground that it has become moot.
Costs
[54] It remains for me to deal with the question of costs.
[55] As regards the main application, I see no reason to depart from the usual rule
that the costs follow the result.
[56] As regards the costs of the counterapplication, it is relevant to note that the
respondents’ answering affidavit in the main application served as the
founding affidavit in the counterapplication, and that the respondents did not
deliver a replying affidavit in the counterapplication. In the circumstances
the wasted costs associated with the counterapplication are relatively
insignificant. Very little of the answe ring affidavit, and very little time in
argument, was devoted to the issue of rectification.
[57] In the circumstances, it seems to me that the respondents should be awarded
the cost of the counterapplication, as it was rendered unnecessary by virtue
of their success in defeating the main application on the grounds that the
liquidators had failed to establish their claim based on theft. Thus, I propose
treating the costs of the counterapplication as costs in the cause.
[58] As regards the stay application, I consi der that the application was entirely
unnecessary. While the respondents were entitled to take a belts and braces
approach, the liquidators should not be burdened with the additional cost
thereby occasioned.
[59] It is well -established that a party must pay s uch costs as have been
occasioned by his taking wholly unnecessary steps. 17 Given that I consider
the stay application an unnecessary exercise , it follows that, in my view, the
17 Gamlan Investments (Pty) Ltd v Trillion Cape (Pty) Ltd 1996 (3) SA 692 (C) 701D (citing De Villiers v
Union Government (Minister of Agriculture) 1931 AD 206 at 214).
respondents should pay the costs incurred by the liquidators in opposing the
stay application.
[60] I should add that I have serious doubts about the competence of the relief
sought in the action, upon which the stay application is predicated. I say that
because it is not in dispute on the papers that Fantom’s claim was reflected
in Reeco’s Amended First Liquidation and Distribution Account, which was
confirmed by the Master on 22 May 2025. In terms of s 408 of the 1973
Companies Act, when the Master has confirmed an account, his
confirmation of that account is final and it cannot be re-opened save where a
Court authorises the re-opening.18 In order to succeed in an application to re-
open a confirmed account, the applicant is required to establish a ground for
restitutio in integrum , such as fraud or iustus error , or that irregularities
have been committed. 19 It also has to be shown that there is merit in re -
opening the account in the sense that there is some prospect of success in
having the account varied or corrected.20
[61] Although it is not framed in those terms, in substance what is being sought
in the action is a re -opening of the Amended First Liquidation and
Distribution Account. Having had regard to the allegations in the particulars
of claim in the action, I am far from convinced that a proper case has been
made out for such relief. And given my doubts about the prospects of
18 Kilroe-Daley v Barclays National Bank Ltd 1984 (4) SA 609 (A) 627 F.
19 See Kilroe Daley v Barclays National Bank Ltd (supra) , Cronje NO and Others v Hillcrest Village
(Pty) Ltd and Another 2009 (6) SA 12 (SCA)
20 Wispeco v Herrigel NO and Another 1983 (2) 14 (C).
success in the action, I would not have been inclined to grant the stay
application.
Conclusion
[62] In the result it is ordered that:
6 The main application under case number 12598/2024 is dismissed with
costs, such costs to include the cost of Senior Counsel payable on Scale
C and Junior Counsel payable on Scale B.
7 The respondents’ counterapplication under case number 12598/2024 is
dismissed.
8 The applicants are ordered to pay the respondents’ wasted costs incurred
in connection with the counterapplication on the party and party scale,
such costs to include the cost of Senior Counsel payable on Scale C and
Junior Counsel payable on Scale B.
9 The respondents’ application for a stay of the main application under
case number 12598/2024 is dismissed with costs, including the cost of
Senior Counsel payable on Scale C and Junior Counsel payable on Scale
B.
10 The Registrar is directed to send a copy of this judgment to the Director
of Public Prosecutions and to the South African Revenue Service, for
such investigation and further action as may be considered necessary.
_____________________________
D M DAVIS
ACTING HIGH COURT JUDGE
Appearances:
For the applicants: G Woodland SC
M Harrington
Instructed by Gillan & Veldhuizen Inc
Mr P J Veldhuizen / Ms M Van Heerden
For the respondents: M P van der Merwe SC
B Prinsloo
Instructed by Van der Merwe Attorneys
Mr P Van der Merwe