THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Reportable
Case no: 1105/2024
In the matter between:
BLUE LABEL DISTRIBUTION (PTY) LTD APPELLANT
and
CHAVONNES BADENHORST ST CLAIR
COOPER N O FIRST RESPONDENT
TIRHANI SITOS DE SITOS MATHEBULA N O SECOND RESPONDENT
CAPE BASIC PRODUCTS (PTY) LTD
(IN LIQUIDATION) THIRD RESPONDENT
Neutral citation: Blue Label Distribution (Pty) Ltd v St Clair Cooper N O and Others
(1105/2024) [2026] ZASCA 61 (29 April 2026)
Coram: NICHOLLS, MOLEFE and KOEN JJA and STEYN and
GOVINDJEE AJJA
Heard: 16 March 2026
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 29 April 2026.
Summary: Companies Act 61 of 1973 – liquidation – whether liquidators can rely on
s 341(2) of the Companies Act to reclaim payments – amounts alleged to have been
repaid after liquidation – whether appellant is the true disponee of the void payments.
3
ORDER
On appeal from: Gauteng Division of the High Court, Johannesburg (Maier-Frawley
J sitting as court of first instance):
The appeal is dismissed with costs.
JUDGMENT
Nicholls JA (Molefe and Koen JJA and Steyn and Govindjee AJJA concurring):
[1] The issue in this appeal is whether the Gauteng Division of the High Court,
Johannesburg (the high court) erred in declaring void a series of payments made by a
company after it had been provisionally liquidated. The liquidators of Cape Basic
Products (Pty) Ltd (CBP) launched an application to recover eight payments, totalling
R347 531.81 made to Blue Label Distribution (Pty) Ltd (Blue Label), on the basis that
they were void dispositions as contemplated by s 341(2) of the Companies Act 61 of
1973 (the Act). The high court (per Maier-Frawley J) found in favour of the liquidators
of CBP and ordered Blue Label to repay the amount plus interest. The matter is before
this Court with the leave of the high court. Blue Label is the appellant and the
liquidators of CBP and CBP in liquidation are the respondents.
[2] At the outset it is necessary to set out the relevant provisions of the Act. Section
341(2) of the Act provides that:
‘Every disposition of its property (including rights of action) by any company being wound-up
and unable to pay its debts made after the commencement of the winding -up, shall be void
unless the Court otherwise orders.’
Section 341(2) of the Act should be read with s 348 which provides that:
‘A winding-up of a company by the Court shall be deemed to commence at the time of the
4
presentation to the Court of the application for the winding-up.’
The time of the presentation to the court of the application for winding-up is when it is
lodged with the registrar of the court, provided, of course, that the application is
subsequently granted.1
[3] From the above it is clear that the timing of the payments is the determining
factor as to whether s 341(2) of the Act is applicable. CBP was placed under
provisional liquidation on 2 March 2020 and final liquidation on 30 June 2020. The
liquidators were appointed as provisional liquidators on 17 June 2020. The eight
payments to Blue Label were made on 9 March 2020; 8 April 2020; 17 April 2020;
8 May 2020; and four on 2 June 2020 . This was in the period after the provisional
liquidation order had been granted but before the liquidators had been appointed.
[4] In Pride Milling Company (Pty) Ltd v Bekker NO and Another 2, this Court
decisively found that dispositions made after a provisional winding-up order has been
granted but before the grant of an order of final liquidation , cannot be validated by a
court.3 Once a provisional liquidation occurs all property in the company is under the
control of the Master. Accordingly, the discretion which a court has in terms of the
proviso in s 341(2) of the Act to validate dispositions, is applicable only to payments
made after the presentation of the liquidation application but prior to the date of the
provisional liquidation, the so -called twilight zone .4 The validation discretion is
primarily exercised having regard to the interests of the concursus creditorum.5
[5] As all the payments in this matter were made after CBP had been provisionally
liquidated on 2 March 2020, counsel for Blue Label correctly disavowed any reliance
on the proviso to s 341(2) of the Act. Therefore, this appeal does not concern a court’s
1 Ellerine Brothers (Pty) Ltd v McCarthy Ltd [2014] ZASCA 46; 2014 (4) SA 22 (SCA) para 6.
1 Ellerine Brothers (Pty) Ltd v McCarthy Ltd [2014] ZASCA 46; 2014 (4) SA 22 (SCA) para 6.
2 Pride Milling Company (Pty) Ltd v Bekker NO and Another [2021] ZASCA 127; [2021] 4 All SA 696
(SCA); 2022 (2) SA 410 (SCA) (Pride Milling).
3 Ibid para 18.
4 Ibid.
5 It should be noted that factors such as bona fides, honest intentions, prejudice suffered by the
defendant have largely been subsumed by whether the disposition would benefit the collective interest
of concursus creditorum or not. See Wikus De Wet ‘Void post -liquidation dispositions by companies
and the validation of such dispositions in terms of section 341(2) of the Companies Act 61 of 1973’ The
Journal of South African Law.
5
discretion to order the validation of payments under s 341(2).
[6] Blue Label identified two questions for determination in this appeal:
(a) Are the liquidators entitled to rely on s 341(2) of the Act when the amounts were
repaid to CBP before the application to declare the payments void had been instituted?
(b) If so, was Blue Label the true disponee or was it merely acting as a collecting
agent for its suppliers?
The high court answered the first question in the affirmative and , as regards the
second, held that Blue Label was the true disponee.
Background
[7] Blue Label is one of the largest national distributors of pre-paid virtual products.
It does so through a network of retailers who sell the products to customers. The virtual
products include airtime, data, electricity, bill payments and ticketing. The distribution
process makes use of terminal equipment, a vending machine solution, through which
customers purchase the virtual products or settle accounts. Blue Label developed the
software for the ‘terminal equipment’ which is either sold to a retailer, or leased (as in
the case of CBP).
[8] On 19 September 2019, Blue Label entered into a written agreement with CBP.
The written terms of the agreement constitute the entire agreement. It allowed CBP to
sell virtual products to consumers, bill payments, airtime, data, electricity, betting and
ticketing, via its terminal equipment. Blue Label is described as the ‘Company’ and
CBP, the retailer, is described as the ‘Outlet’. In terms of the agreement, Blue Label
would supply pre-paid stock to CBP. Pre-paid stock is defined in the agreement as
any pre-paid vouchers by the networks. These are supplied by Blue Label.6
[9] The agreement details how the pre -paid stock is supplied and paid for , as
follows:
6 Clause 1.10 which reads, ‘Pre paid Stock’ means any pre -paid voucher by the respective Networks
namely: Vodacom, MTN, Cell C, and Telkom Pre-paid services, which are supplied by the Company.
6
‘5. SUPPLY OF THE PRE-PAID STOCK
5.1 The pre-paid stock is supplied by the Company via the following procedure:
5.1.1 The Outlet shall deposit money into the Company’s Bank account . Credit will only be
loaded to the Outlet account once the Company has confirmed the details of the deposit.
5.1.2 Once the Outlet’s account is in credit the Terminal Equipment will via electronic means
through a host computer system dial the server automatically for an order.
5.1.3 The server will transmit pin numbers to the Terminal Equipment and debit the Outlet’s
account. An invoice will automatically be generated.
5.1.4 Once the minimum stock levels have been reached , the Terminal Equipment
automatically requests another order, and if the Outlet’s account is in credit, the order will be
delivered.
…
6 PAYMENT
6.1 The Outlet shall effect payment to the Company in the following manner:
6.1.1 Upon the presentation of an invoice, for the supply, delivery and installation of the
Terminal Equipment.
6.1.2 By means of a bank transfer or deposit into the Company ’s bank account for the Pre -
paid stock.
6.2 All monthly service charges, if applicable, shall be paid by the Outlet monthly in arrears,
on or before the 7th day of each month.
6.3 Notwithstanding the above provisions, the Company may at any time, on reasonable
written notice, vary its invoicing and payment procedures and requirements.
…’
[10] Ms Janse Van Rensburg (Ms Van Rensburg) , a chartered accountant
employed a s a shared executive by Blue Label, was the deponent to Blue Label’s
answering and supplementary answering affidavits. She contended that CBP was
required to deposit funds into a ring -fenced ‘deposit account’ held by Blue Label
exclusively for CBP. These funds did not form part of Blue Label’s general account
and were treated as a current liability in Blue Label’s books. The deposit was not
payment for the purchase of stock but rather a payment for the ability to sell products
payment for the purchase of stock but rather a payment for the ability to sell products
in return for a commission. Until a customer purchased a product and paid CBP, Blue
Label had no entitlement to use the deposited funds. CBP could withdraw unused
funds at its discretion, and upon termination of the agreement any remaining balance
7
was refundable. The credit balance thus held remained an asset of CBP. These
contentions of Ms Van Rensburg are not recorded in the written terms of the
agreement.
[11] Ms Van Rensburg provided a practical example of how the relationship worked.
If a retailer, like CBP, believed that consumers were likely to purchase products to the
value of R10 000, it would pay this amount into Blue Label’s distribution account. The
terminal equipment of CBP would have a credit of R10 000, thus allowing CBP to sell
virtual products to that amount. If a customer purchased a product, for example airtime,
for the sum of R2 500, the customer would pay CBP directly. This meant that CBP
would have a credit of R12 500.00 (the R2 500 plus the R10 000 in the terminal
equipment) for the remaining period of that day . Again, this explanation is in conflict
with the express terms of clause 5 of the agreement regarding the acquisition of pre -
paid stock.
[12] On a daily basis at 23h59, Blue Label’s system would automatically generate
an invoice for the products sold that day. Th e value of the sales would then be
deducted from the money that CBP ha d deposited into the deposit account , and
transferred into the relevant trading account . After reconciliation, Blue Label would
debit CBP’s trading account for the face value of the transaction and pay that amount
to the relevant supplier. Blue Label would not deduct its commission from the
deposited funds. Instead, it would receive commission from the supplier, after payment
of the full transaction value. Blue Label would, in turn, pay CBP its agreed commission,
which was credited to CBP’s trading balance.
Were the dispositions repaid prior to the application being launched?
[13] The payments were made by CBP to Bl ue Label . It is undisputed that no
monies were repaid by Blue Label to CBP. Instead, Blue Label submits that because
the customers paid CBP for the products, the amounts claimed as dispositions by CBP
the customers paid CBP for the products, the amounts claimed as dispositions by CBP
to Blue Label were repaid prior to the launching of the application. Blue Label argues
that no money was lost, or disposed of, as a result of the eight transactions. Instead,
CBP’s asset value remained the same as it was before it paid the deposit; after it paid
the deposit; and, before any sale took place. The only change in its asset value would
have been an increase from the time a customer bought, for example airtime, until the
8
time Blue Label effected the debit at 23h59 the same day. It contends that ‘to dispose’
ordinarily means to get rid of something. Accordingly, for there to be a disposition the
company which made the disposition must have ‘got rid’ of its property and its assets
diminished thereby.
[14] Blue Label did not , as in the high court, persist with the contention that the
payments were not ‘dispositions’ . It confirmed that the real issue is whether the
payments made by C BP to Blue Label amounted to disposition s as envisaged by
s 341(2) in the partic ular circumstances where the estate of C BP had not been
diminished by the payments. This is because the system operated on the basis that
customer payments flowed to the third -party suppliers , with Blue Label and CBP
remunerated by commission, and with CBP’s deposited funds remaining ring -fenced
and treated as its asset until properly debited following completed sales.
[15] In sum, the contention is that payments by CBP into Blue Label’s account did
not diminish CBP’s property in any way because the products had already been pre -
paid. Thus, when a customer purchased pre -paid airtime, and paid CBP, the same
amount would be debited to CBP’s trading account with Blue Label and the same
amount would be paid to the suppliers by Blue Label. CBP’s asset value was restored
to what it was before the payment had been made to Blue Label.
[16] What constitutes a ‘d isposition’ is not defined in the Act . Section 2 of the
Insolvency Act 24 of 1936 (Insolvency Act) however provides that disposition, ‘means
any transfer or abandonment of rights to property and includes a sale, lease, mortgage,
pledge, delivery, payment, release, compromise, donation or any contract therefor, but does
not include a disposition in compliance with an order of the court; and ‘dispose’ has a
corresponding meaning’.
[17] The high court dealt extensively with whether the payments amounted to
[17] The high court dealt extensively with whether the payments amounted to
dispositions in terms of s 341(2) of the Act and concluded that, in light of the wide
meaning attributed to the word ‘disposition’, they did. This finding is unassailable.
[18] A disposition refers to a disposition of the property of a company, be it
9
moveable or immoveable, which the company disposes of, and includes a contract to
effect such transfer. 7 The act of disposition of property can also occur when assets
are alienated without receiving any value in return, even in instances where the
insolvent merely had some contingent right in the property. It can even include goods
that are given away and not paid for .8 What is apparent is that the act of disposition
has been widely interpreted, restricted by few parameters.
[19] This Court has repeatedly emphasised that the default position is that
dispositions as contemplated by s 341(2) of the Act have no force and effect in the
eyes of the law . They are regarded as if they had never occurred , they are void ex
lege.9 This means that once a disposition of property is made after the commencement
of winding-up, it is void ab initio unless validated by a court order in terms of s 341(2).
Nullity is the default position and validation the exception.
[20] In Mazars Recovery & Restructuring (Pty) Ltd v Montic Dairy (Pty) Ltd (in
liquidation) and Others ,10 this Court confirmed that any payment after the date of
presentation of the liquidation application is by default void , unless a court otherwise
orders. The ‘predominant purpose of s 341(2) is to decree that all dispositions made by a
company being wound -up are void. If that is the existing position then these payments are
rendered invalid ex tunc at the time that they are made’.11 In Gainsford and Others NNO v
Tanzer Transport (Pty) Ltd,12 this Court held that s 341(2) of the Act is clear in its terms
that every disposition made after the commencement of the winding up was void.
[21] In Pride Milling ,13 it was emphasised that s 341(2) of the Act renders such
dispositions void ab initio (ex tunc). The recipient acquires no right to retain the funds
and incurs an immediate obligation to restore them, irrespective of any counter -
and incurs an immediate obligation to restore them, irrespective of any counter -
7 See the citations in Wikus De Wet, Select statutory methods of obtaining control of the insolvent estate,
University of Pretoria footnotes 88, 89 and 91.
8 Burns v Adlam 1963 (3) SA 718 (D) at 720B-D.
9 Pride Milling fn 2 paras 13 and 30; Mazars Recovery & Restructuring (Pty) Ltd and Others v Montic
Dairy (Pty) Ltd (in liquidation) and Others [2022] ZASCA 135; 2023 (1) SA 398 (SCA) (Mazars Recovery
& Restructuring) para 11; Eravin Construction CC v Bekker NO and Others [2016] ZASCA 30; 2016 (6)
SA 589 (SCA).
10 Mazars Recovery & Restructuring para 7.
11 Ibid para 11.
12 Gainsford and Others NNO v Tanzer Transport (Pty) Ltd [2014] ZASCA 32; 2014 (3) SA 468 (SCA);
[2014] 3 All SA 21 (SCA) para 27.
13 Pride Milling fn 2 para 13.
10
performance or subsequent events. The Court went on to say:
‘The provisions of s 341(2) could not be clearer. They, in unequivocal terms, decree that every
disposition of its property by a company being wound -up is void. Thus, the default position
ordained by this section is that all such dispositions have no force and effect in the eyes of
the law ie the disposition is regarded as if it had never occurred. The mischief that s 341(2)
seeks to obviate is plain enough. It is to prevent a company being wound-up from dissipating
its assets and thereby frustrating the claims of its creditors.’14
[22] These authorities do not hold that repayment prior to the institution of
proceedings does not give rise to a claim where the estate has already been restored.
Rather, they establish that voidness gives rise to a restitutionary obligation upon
receipt. This Court in Eravin Construction CC v Bekker NO and Others,15 made it clear
that the recipient of a void disposition acquires no right to retain the payment but incurs
an immediate restitutionary obligation upon receipt , in order to establish a concursus
creditorum. Voidness gives rise to a debt owed to the company in liquidation.
[23] It is of little, if any, significance to what extent the payments diminished CBP’s
asset base, or to what extent its diminished asset base was replenished. What cannot
be disputed is that the payments were made by the company after the institution of
liquidation proceedings and while the company was being wound up. The payments
amount to prohibited dispositions which Blue Label has no right to retain. The practical
implication of the payments to Blue Label is that it would be in a more advantageous
position than other creditors. Blue Label is a creditor which has received full payment
after CBP’s liquidation, while CBP’s remaining creditors are required to submit claims
to receive a dividend.
[24] Therefore, the liquidators were indeed entitled to rely on s 341(2) of the Act to
[24] Therefore, the liquidators were indeed entitled to rely on s 341(2) of the Act to
recover the eight payments. This brings me to the question of whether Blue Label was
the true disponee of the disposition.
Was Blue Label the true disponee or acting as an agent or conduit?
[25] With every disposition , generally, there must be a disponor who makes the
14 Ibid para 30.
15 Eravin Construction CC v Bekker NO and Others fn 9 para 21.
11
disposition and a disponee who receives the disposition. 16 Blue Label submits that it
acts as a collecting agent for various third parties who supply the virtual products. As
an example , Blue Label relies on its agreement with Multichoice , which expressly
appoints Blue Label as a collection agent authorised to receive customer payments
through its payment platform and network. It contends that customers pay for services
owed to third-party suppliers; Blue Label facilitates the transmission of funds but does
not acquire ownership of the products or the proceeds of the sale.
[26] It characterises its ro le as that of an intermediary and conduit between
customers, retailers and suppliers , without beneficial entitlement to the transaction
proceeds. It does not sell the third party’s products and once CBP has sold a third -
party’s products to a customer , the full value of that sale belongs to the third party .
Blue Label deposits that value and pays it to the relevant supplier. Blue Label does
not appropriate the value of the sale as part of its assets but pays the money over to
the supplier and it is the supplier that appropriates the money as part of its assets. It
is only once the supplier has received the full value of the sale that it pays Blue Label
an agreed commission. From that commission Blue Label in turn pays CBP an agreed
commission. Thus, properly understood , according to Blue Label, the real sale
transaction is one between the supplier , which sells the airtime, and the consumer
who buys and consumes the airtime. Blue Label and CBP are merely intermediaries.
[27] There are a number of conceptual difficulties with this characterisation. The first
point to make is that there is no privity of contract between CBP and the supplier, nor,
undisputably, between the supplier and the customer. CBP owed no debt to the
supplier. The contractual nexus is between Blue Label and CBP . I n terms of this
supplier. The contractual nexus is between Blue Label and CBP . I n terms of this
agreement Blue Label sold products, sourced from its suppliers , to CBP for onward
sale to CBP’s own customers, in both instances for reward , in the form of a
commission. CBP becomes the debtor of Blue Label, which in turn was a debtor of its
own suppliers. This contractual arrangement is not indicative of agency but instead
reflects the existence of a debtor-creditor relationship between Blue Label and CBP.
Nor do the facts sustain the submission that Blue Label and CBP acted as
16 Van Wyk Van Heerden Attorneys v Gore NO and Another [2022] ZASCA 128; [2022] 4 All SA 649
(SCA); 2023 (1) SA 80 (SCA) (Van Wyk Van Heerden Attorneys) para 28.
12
intermediaries between the customer and the supplier.
[28] To the extent that Blue Label relies on Van Wyk Van Heerden Attorneys,17 such
reliance is misplaced. That matter dealt with whether a deposit into an attorney’s trust
account should be set aside as a disposition not for value in terms of s 26(1)(b) of the
Insolvency Act. This Court rejected the contention that the power to operate a trust
account, determines whether this amounts to a disposition. The issue to be decided
was who had benefitted by the disposition. It was held that the construction of the
section does not allow fo r liability to attach to one who has not benefitte d from the
disposition.18
[29] Although the Court held that the provision does not operate against a party who
acts merely as a conduit or intermediary, t he section of th e Insolvency Act which
applied in that case cannot be equated with s 341(2) of the Companies Act, where the
default position is that the disposition is void ab initio. In any event , the contractual
relationship between Blue Label and CBP cannot be equated with the legal
relationship between attorneys who operate trust banking account for the benefit or on
behalf of their clients.19
[30] At the time the payments were made, CBP was in the hands of the Master and,
in terms of s 361(1 ) of the Act,20 all its property, including any monies standing to its
credit in the bank account, was under the custody and control of the Master until the
provisional liquidators had been appointed. CBP was incapable of giving effect to any
prior contractual arrangements which had been automatically suspended by the
provisional liquidation order. This, too, is an other insurmountable difficulty for Blue
Label.
17 Ibid para 32.
18 Ibid.
19 Ibid para 23.
20 Section 361(1) of the Companies Act provides that: ‘In any winding -up by the Court all the property
of the company concerned shall be deemed to be in the custody and under the control of the Master
until a provisional liquidator has been appointed and has assumed office.’
13
[31] The defence that it was not the true disponee does not avail itself to Blue Label.
This argument also must fail. In conclusion, the liquidators were entitled to repayment
of the eight dispositions.
[32] In the result, the following order is made:
The appeal is dismissed with costs.
C E HEATON NICHOLLS
JUDGE OF APPEAL
14
Appearances:
For the appellant: J E Smit SC and J D Brewer
Instructed by: Barkers, Durban
Webbers, Bloemfontein
For the respondents: A R Newton
Instructed by: Lombard and Kriek Inc, Bellville
Honey Attorneys, Bloemfontein.