CONSTITUTIONAL COURT OF SOUTH AFRICA


Case CCT 117/24

In the matter between:


CENTAUR MINING SOUTH AFRICA (PTY) LIMITED Applicant

and

SIVALUTCHMEE MOODLIAR N.O. First Respondent

NDUMISO SENZOSENKOSI SIBIYA N.O. Second Respondent

TRILLIAN CAPITAL PARTNERS (PTY) LIMITED Third Respondent

TRILLIAN SECURITIES (PTY) LIMITED Fourth Respondent

TRILLIAN NOMINEES (PTY) LIMITED Fifth Respondent

TRILLIAN SHARED SERVICES (PTY) LIMITED Sixth Respondent

TRILLIAN PROPERTY (PTY) LIMITED Seventh Respondent

TRILLIAN FINANCIAL ADVISORY (PTY) LIMITED Eighth Respondent

ZARA W (PTY) LIMITED Ninth Respondent

MASTER OF THE HIGH COURT, PRETORIA Tenth Respondent

COMPANIES AND INTELLECTUAL PROPERTY
COMMISSION Eleventh Respondent



Neutral citation: Centaur Mining South Africa (Pty) Ltd v Moodliar N.O. and
Others [2026] ZACC 20

Coram: Mlambo DCJ, Kollapen J, Majiedt J, Mathopo J, Musi AJ,
Nicholls AJ, Rogers J, Savage J and Tshiqi J

Judgment: Musi AJ (unanimous)

Heard on: 11 November 2025

Decided on: 18 May 2026

Summary: Companies Act 71 of 2008 — section 20(9) — liquidation —
unconscionable abuse — separate juristic personality

Uniform Rules of Court — rule 42(1)(a) — rescission —
rule nisi — appeal




ORDER



On appeal from the Supreme Court of Appeal:
1. Leave to appeal is granted.
2. The appeal is upheld in part.
3. The order of the Supreme Court of Appeal is set aside and replaced by the
following:
“(a) The appeal is upheld to the extent set out below, with no order as
to costs.
(b) Paragraph 2 of the order of the High Court is set aside and replaced
with the following:
‘(2) The following order is made:
(a) Trillian Capital Partners (Pty) Ltd [Reg No:
2015/111759/07], Trillian Securities (Pty) Ltd [Reg
No: 2015/152852/07], Trillian Nominees (Pty) Ltd
[Reg No: 2017/036662/07], Trillian Shared Services
(Pty) Ltd [Reg No: 2015/111747/07], Trillian
Property (Pty) Ltd [Reg No: 2016/046295/07] and

3

Trillian Financial Advisory (Pty) Ltd [Reg No:
2014/122082/07] (“the subject companies”):
(i) shall be deemed not to be separate juristic
persons in respect of any right, obligation or
liability of those companies or of a
shareholder of the subject companies;
(ii) in terms of section 20(9)(b) of the Companies
Act 71 of 2008, any right, obligation or
liability of the subject companies shall be
relocated to Trillian Management Consulting
(Pty) Ltd (“TMC”) (in liquidation).
(b) The costs of this application are costs in the
winding-up of TMC in liquidation.’”
4. Each party to pay their own costs.



JUDGMENT




MUSI AJ (Mlambo DCJ, Kollapen J, Majiedt J, Mathopo J, Nicholls AJ, Rogers J,
Savage J and Tshiqi J concurring):


Introduction
[1] This is an application for leave to appeal against an order of the Supreme Court
of Appeal in which it dismissed the appeal of the applicant, Centaur Mining
South Africa (Pty) Ltd (CMSA), against an order of the High Court of South Africa ,
Gauteng Division, Johannesburg (High Court) , in which the High Court dismissed its
rescission application.

MUSI AJ
4

Parties
[2] The applicant is CMSA. The first and second respondents , Ms Sivalutchmee
Moodliar and Mr Ndumiso Senzosenkosi Sibiya are cited in their nominal capacities as
the joint liquidators of Trillian Management Consulting (Pty) Ltd in liquidation (TMC).
The third to eight h respondents are Trillian Capital Partners (Pty) L td (TCP), Trillian
Securities (Pty) L td (TS), Trillian Nominees (Pty) Ltd (TN), Trillian Shared Services
(Pty) Ltd (TSS), Trillian Property (Pty) Ltd (TP) and Trillian Financial Advisory (Pty)
Ltd (TFA). I shall refer to the third to eight h respondents collectively as the subject
companies or Trillian Companies . The ninth respondent is Zara W (Pty) L td (Zara).
TCP owns all the shares in TMC and the subject companies or Trillian companies. Zara
is TCP’s sole shareholder.

[3] The tenth respondent is the Master of the High Court, Pretoria (Master), and the
eleventh respondent is the Companies and Intellectual Property Commission (CIPC).

Factual background
[4] The facts are undisputed. The subject companies were incorporated after a failed
bid by the Gup ta family to acquire Regiments Capital (Pty) Ltd (Regiments) in 2014.
The Gupta family, their companies and associates were central to allegations of fraud,
corruption and state capture made during the Judicial Commission of Inquiry into
Allegations of St ate Capture, Corruption and Fraud in the Public Sector including
Organs of State.

[5] Regiments operated as a “fund manager” and “strategy advisor” that specialised
in public infrastructure programs and projects. It rendered services to state -owned
entities (SOEs) like Eskom Holdings SOC Ltd (Eskom) and Transnet SOC Ltd
(Transnet). Mr Eric Anthony Wood, the former Chief Executive Officer of Regiments,
was the sole director of TMC in liquidation as well as other entities with in the subject
companies. TCP and TMC are financial advisory firms that conducted businesses like
that of Regiments.

MUSI AJ
5


[6] During January 2020, t he South African Revenue Service (SARS) concluded
that Mr Wood was utilising and treating the subject companies that he controlled as an
extension of himself. Whilst being responsible for attending to the financial affairs of
the subject companies, he failed to submit tax returns timeously or submitted returns
that contained incorrect declarations. It became apparent to SARS that Mr Wood would
channel funds through the different subject companies and would disguise the original
source of the income as well as where the funds would end up. SARS ’ investigation
revealed that Mr Wood received SOE funds into a Trillian company, which funds would
then be channelled to various other entities t hrough fictitious invoices purportedly
issued by another Trillian company (which, for all intents and purposes, was not trading
or conducting any form of business). Th ese invoices were intended to fraudulently
misrepresent a legitimate cause to extract funds from a Trillian company and funnel
them to beneficiaries linked to entities controlled by the Gupta family.

[7] After its investigation, SARS issued letters of audit findings to TMC. The letters
of audit findings were based on a comparative analysis of source documents submitted
to SARS by TMC, as well as TMC’s bank statements, value-added tax (V AT)
schedules, invoices, draft annual financial statements, trial balances, general ledgers and
other financial documentation of certain Trillian companies. SARS determined that—
(a) TMC received approximately R595 million on 28 February 2007 from
Eskom, which it failed to declare for tax purposes;
(b) the funds so received by TMC were distributed to companies which were
reasonably suspected of not conducting legitimate business;
(c) TMC received interest from the Bank of Baroda, an Indian public sector
bank headquartered in Vadodara, Gujarat , which it unlawfully failed to
declare for tax purposes; and

declare for tax purposes; and
(d) TMC was indebted to SARS, at that stage, in an amount of
R460 970 690.87.

MUSI AJ
6

[8] Following these revelations, SARS successfully obtained a preservation order in
terms of section 163 of the Tax Administration Act. 1 As a result, Mr Cloete Murray
was appointed as the curator bonis (guardian of property). In this capacity, Mr Murray
instructed a chartered accountant and forensic auditor, Mr Stephen Robinson, to
investigate the affairs of TMC and TCP. He provided Mr Murray with his first report
on 23 February 2020 and a supplementary report on 24 February 2020 , in which he
concluded that TMC had received an amount of R595 200 000 from Eskom. It almost
immediately disbursed that amount to other Trillian-associated or connected companies,
some of which carried on no form of legitimate enterprise. TMC was not managed as
a self-standing enterprise, but as part of the greater Trillian group of companies.

[9] Mr Murray then instructed Mr Robinson to also investigate the affairs of certain
other Trillian companies and to furnish a report of his findings. Mr Robinson issued
his second report on 8 July 2020 . The findings made by Mr Robinson were, amongst
other things, based on a thorough and comparative analysis of , particularly, but not
exclusively, the bank account statements of TMC, TP, TCP, TA and numerous other
entities involved in the perpetration of massive fraud of state funds. Mr Robinson found
that more than R834 000 000 was paid to the Trilli an companies: R595 200 000 by
Eskom to TMC , R147 100 000 by Regiments to T A and R76 400 000 by Transnet to
TC. It was subsequently ascertained that R5 700 000 was also paid to a Trillian
company by South African Express Airways SOC Ltd (SA Express). These monies, in
turn, were transferred between the accounts of the various Trillian companies, one
company transferring funds to another.

[10] Mr Robinson found that the affairs of TMC and the other Trillian companies
were intermingled to the extent that it proved impossible to conduct a proper

were intermingled to the extent that it proved impossible to conduct a proper
investigation of the dealings and affairs of TMC without the other Trillian companies.
The business of the Trillian companies, according to him, was indistinguishable as they
were being managed as one economic entity. He also dealt with the massive fraud that

1 28 of 2011.

MUSI AJ
7

had been perpetrated by the Trillian companies and the corrupt activities in which they
were participants. The monies flowed to TMC and the other Trillian companies in
circumstances where they did not render any legitimate services to Eskom, Transnet,
SA Express, Regiments or the other entities that paid monies into their bank accounts.
Mr Robinson’s findings revealed th at TMC and the other Trillian companies were not
only incorporated or used in a manner that constituted an unconscionable abuse of their
juristic personality, but also that the companies conducted business in a fraudulent
manner and for fraudulent purposes.

[11] On 18 June 2019, a Full Court of the High Court of South Africa, Gauteng
Division, Pretoria (Pretoria High Court) on review set aside various decisions in which
Trillian companies were implicated and granted judgment against TMC and TCP to
repay Eskom the sum of R595 228 913.29 including interest and costs. 2 TMC applied
for leave to appeal against the judgment, which was dismissed on 2 October 2019.

[12] The judgment debt remained unpaid. On 17 January 2020, Eskom launched an
application in the Pretoria High Court to enforce the judgment, with liquidation as an
alternative prayer if the money was still not paid . SARS was later joined as a
co-applicant. In its founding affidavit , Eskom dealt with Mr Wood’s answering
affidavit in opposition to an application in terms of section 18 of the
Superior Courts Act.3 In it , Mr Wood confirmed that , at that point in time , further
litigation had been instituted against the Trillian group of companies by—
(a) Transnet against TAM and others for payment of R93 480 000;
(b) Transnet against TFA, TCA and others for payment of R11 400 000;
(c) Transnet against TCP, TFA and others for payment of R41 040 000; and
(d) Transnet Second Defined Benefit Fund against TCP, TFA, TAM, TMC
and Mr Wood for payment of, amongst other things, R179 543 257.21.

2 Eskom Holdings SOC Limited v McKinsey and Company Africa (Pty) Ltd, unreported judgment of the Gauteng
High Court, Pretoria, Case No 22877/2018 (18 June 2019)
3 10 of 2013.

MUSI AJ
8

[13] Transnet established that TMC was factually and commercially insolvent. On
9 March 2020, it was finally wound -up and t he Master appointed Mr Murray,
Ms Moodliar and Mr Sibiya as joint provisional liquidators of TMC (the liquidators).

Litigation history
High Court
[14] On 25 September 2020, the liquidators initiated motion proceedings in the
High Court against TCP, TS, TN, TSS, TP and TFA as the first to sixth respondents.
Zara was the seventh respondent. The eighth respondent was the Master and the ninth
respondent was the CIPC. The liquidators sought relief in terms of section 20(9) of the
Companies Act4 (2008 Companies Act), which provides:

“If, on application by an interested person or in any proceedings in which a company
is involved, a court finds that the incorporation of the company, any use of the
company, or any act by or on behalf of the company, constitutes an unconscionable
abuse of the juristic personality of the company as a separate entity, the court may—
(a) declare that the company is to be deemed not to be a juristic person in respect
of any right, obligation or liability of the company or of a shareholder of the
company or, in the case of a non -profit company, a member of the company,
or of another person specified in the declaration; and
(b) make any further order the court considers appropriate to give effect to a
declaration contemplated in paragraph (a).”

[15] On 20 October 2020 , the High Court granted a provisional order under
section 20(9) in the following terms (I substitute the abbreviated company names):

“2. It is hereby declared that a rule nisi in the following terms is granted (‘the provisional
order’):
a. [TCP], [TS], [TN], [TSS], [TP] and [TFA] (‘the subject companies’):

4 71 of 2008.

MUSI AJ
9

i. are deemed not to be separate juristic person s in respect of any right,
obligation or liability of those companies or of a shareholder of the
subject companies;
ii. are collapsed in to [TMC] and the subject companies and [TMC]
henceforth exist as a single entity by ignoring their separate legal
existence as contemplated by section 20(9) read with section 22 of the
Companies Act 71 of 2008 (‘the 2008 Act’); and
iii. the effective date of the c ommencement of the subject companies’
liquidation proceedings is the date upon which TMC was placed in
liquidation.
b. The [CIPC] and the [Master] are directed to amend their records to reflect the
consolidation of the subject companies, their composite winding up
proceedings and such further consequences as they deem fit and / or necessary,
in accordance with the orders granted pursuant to this application.
c. The costs of this application are costs in the consolidated winding-up of [TMC]
and the subject companies.
3. Any order granted pursuant to this application shall forthwith be published in the
Government Gazette and two newspapers published in the Gauteng Province.
4. Any party with an interest in this application and the provisional order is called upon
to show cause on a date to be allocated by the registrar of this court, which shall be a
date after [10] days from the publication of any order granted pursuant to this
application, as to why the provisional order should not be made final.
5. The costs consequent upon this application, up to the date of confirmation or discharge
of the provisional order, are reserved pending the final determination of this
application, save in the event that this application becomes opposed, in which event the
applicants will request that any such opposing party be ordered to pay the costs of this
application on the scale as between attorney and client.”

[16] The order was confirmed on 20 January 2021. CMSA was not a party to either

[16] The order was confirmed on 20 January 2021. CMSA was not a party to either
proceedings. On 4 February 2021, the liquidators instituted an action against CMSA to

MUSI AJ
10

set aside and recover alleged dispositions in terms of the Ins olvency Act.5 In their
particulars of claim, the liquidators alleged that on 1 September 2016, TSS, represented
by Mr Wood, concluded a written loan facility agreement (TSS loan agreement) with
CMSA, represented by Mr Daniel McGowan. In terms of the loan agreement, CMSA
would extend a loan to TSS of R250 million and TSS would repay the loan , together
with interest thereon, on or before 31 August 2017. During the period
7 September 2016 to 19 October 2016, CM SA, in pursuance of the TSS loan
agreement, made payments amounting to R202 366 664 to TSS. During the period
22 December 2016 and 27 February 2017, TSS made repayment s to CMSA in the
aggregate amount of R210 289 901.

[17] On 1 September 2016, TFA, represented by Mr Wood, concluded a written loan
facility agreement with CMSA, represented by Mr McGowan, in terms of which CMSA
would extend a loan of R150 million to TFA and TFA would repay the loan , together
with interest thereon, on or before 31 August 2017 (TFA loan agreement). During the
period 7 September 2016 to 19 October 2017, CMSA disbursed R110 913 560 to TFA
in pursuance of the TFA loan agreement. During the period 21 December 2016 and
17 February 2017, TFA partly repaid the loan amount by paying R69 956 099 to
CMSA.

[18] The liquidators alleged that—
(a) the payments by TSS and TFA unduly preferred CMSA above their other
creditors;
(b) at the time of and immediately after making the payments to CMSA, their
liabilities exceeded the value of their assets; and
(c) those payments were thus undue preferences in terms of section 30 of the
Insolvency Act.6

5 24 of 1936.
6 Section 30(1) of the Insolvency Act provides:
“If a debtor made a disposition of his property at a time when his liabilities exceeded his assets,
with the intention of preferring one of his creditors above another, and his estate is thereafter

sequestrated, the court may set aside the disposition.”

MUSI AJ
11


[19] In the alternative, they alleged that CMSA had colluded and conspired to procure
payment by TSS and TFA as loan repayments under circumstances where the payments
were not due to CMSA and there was no legal or factual basis for the payments to be
made to CMSA by TFA and TSS , thus constituting voidable dispositions in terms of
section 29 of the Insolvency Act.7

[20] On 3 August 2021, CMSA launched an application to rescind and set aside the
section 20(9) order , relying on rule 42(1)(a) of the Uniform Rules of Court (Rules),
section 354 of the 1973 Companies Act8 and the common law. Its primary contention
was that section 20(9) does not confer upon a court the power to liquidate a company.

[21] CMSA contended that the liquidators would not have had claims against it in
terms of the Insolvency Act had it not been for the section 20(9) order. The power to
institute these claims was derived from the purported liquidation orders contained in the
section 20(9) order.

[22] CMSA argued that the collapse of multiple companies into one liquidated entity
irreparably altered its contractual rights, including its right to repayment from specific
companies, namely TSS and TFA. In other words, instead of being governed by its
agreements with TSS and TFA, it became subject to a new legal regime applicable to
seven entities in liquidation. Accordingly, CMSA submitted that it was prejudicially
affected by the section 20(9) order and had standing to seek the rescission or setting
aside of the order.


7 Section 29(1) of the Insolvency Act provides:
“Every disposition of his property made by a debtor not more than six months before the
sequestration of his estate or, if he is deceased and his estate is insolvent, before his death, which
has had the effect of preferring one of his creditors above another, may be set aside by the Court

if, immediately after the making of such disposition, the liabilities of the debtor exceeded the
value of his assets, unless the person in whose favour the disposition was made proves that the
disposition was made in the ordinary course of business, and that it was not intended thereby to
prefer one creditor above another.”
8 61 of 1973.

MUSI AJ
12

[23] On 12 September 2022, the High Court dismissed the application.9 It held that,
where justified on the facts, section 20(9) of the 2008 Companies Act empowers a court
to grant appropriate relief, including a winding-up order. It also found that CMSA had
not shown good cause for rescission and was not entitled to relief under the common
law or section 354 of the 1973 Companies Act. The High Court distinguished the
judgment of Barak,10 which found that a High Court does not have the power to
liquidate a company in terms of section 20(9), on the basis that the application in Barak
was “to divest Barak of those rights and to vest those rights in the liquidators of Insure
so as to ensure t hat these rights are dissipated and /or watered down”. 11 CMSA was
granted leave to appeal the judgment and order to the S upreme Court of Appeal . The
liquidators did not submit any cross-appeal.

Supreme Court of Appeal
[24] On 28 March 2024, the Supreme Court of Appeal dismissed the appeal.12 It held
that the liquidators were procedurally entitled to the section 20(9) order and CMSA’s
challenge to its competence amounted to a subsequently disclosed defence. It agreed
with the High Court that CMSA had not established a case for relief under the common
law or section 354 of the 1973 Companies Act.

[25] It held that CMSA’s case rested squarely on rule 42(1)(a). In this regard, it held
that CMSA’s subsequently disclosed defence , based on its interpretation of
section 20(9) of the 2008 Companies Act , cannot transform the validly obtained
judgment into an erroneously sought or granted judgment. Additionally, it held that the
rescission application was a disguised appeal and that CMSA did not have a right to
appeal against the section 20(9) final order. It further found that the winding-up process

9 Centaur Mining South Africa (Pty) Ltd v Murray N.O. 2023 (1) SA 499 (GJ).

9 Centaur Mining South Africa (Pty) Ltd v Murray N.O. 2023 (1) SA 499 (GJ).
10 Barak Fund SPC Ltd v Insure Group Managers Limited , unrepor ted judgment of the High Court of,
Johannesburg, Case No 2021/43053 (12 July 2022).
11 Id at para 54.
12 Centaur Mining South Africa (Pty) Ltd v Cloete Murray N.O. [2024] ZASCA 34.

MUSI AJ
13

was at an advanced stage and that the progress of the winding -up was a weighty
consideration in deciding whether to grant a rescission application.

In this Court
Applicant’s submissions
[26] CMSA applied for leave to appeal to this Court. Its central submission,
consistent throughout, remains that section 20(9) of the 2008 Companies Act does not
empower a court to liquidate a company. I t submits that the section is concerned with
the unconscionable abuse of juristic personality and the relocation of specific rights,
obligations or liabilities; it has nothing to do with winding-up at all. Winding-up serves
an entirely different purpose , which is to bring the existence of a company to an end
through a structured process in which its assets are realised, liabilities settled and any
residue distributed. It creates a concursus creditorum (coming together of creditors)
and ensures that claims are dealt with in accordance with the statutory framework. It
affects the status of the company and is not concerned with disregarding the company’s
separate personality or with the relocation of its rights, obligations or liabilities.

[27] CMSA argues that the p ower to grant a liquidation order derives from three
statutory sources: sections 79 to 81 of the 2008 Companies Act for solvent companies;
section 347 of the 1973 Companies Act for insolvent companies; and
sections 130(5)(c)(i) and 131(4)(b) of the 2008 Companies Act for financially
distressed companies with no reasonable prospects of rescue. It submits that
section 20(9) does not confer a primary power to liquidate a company and that there is
no basis for implying an ancillary power in section 20(9) to liquidate a company.

The liquidators’ submissions
[28] The liquidators agree that an order under section 20(9) has the effect of
relocating some or all of a company’s rights, obligations or liabilities to someone else.
They therefore agree with CMSA that the High Court could properly relocate all the

They therefore agree with CMSA that the High Court could properly relocate all the
rights, obligations and liabilities of the subject companies to, and have them vest in ,

MUSI AJ
14

TMC in liquidation. They, however, contend that this is not the only effect that an order
under section 20(9) will or may have.

[29] They pin their case to a single proposition: where a court declares, under
section 20(9)(a), that a target company which is not in liquidation (like the subject
companies) is deemed not to be a juristic person separate and distinct from, but rather
part of, another company that is in liquidation, the court does not bring about the
liquidation of the target company as a distinct legal person. What the court does is
declare that the target company always formed part of the other company that is in
liquidation.

[30] Accordingly, when the ruse of a simulated corporate distinction is erased through
section 20(9), and the truth emerges, the fact is that, but for the relevant target company
having been incorporated, used or its affairs conducted in a manner that constitutes an
unconscionable abuse of the juristic personality of the company as a sep arate entity, it
was always in truth and in fact part of the liquidated company. This, by implication,
entails that, in truth and in fact—
(a) the employees of the target company were always the employees of the
company in liquidation;
(b) the creditors of the target company were always the creditors of the
company in liquidation;
(c) the target company and the company in liquidation were always the same
taxpayer; and
(d) the estate of the target company and the estate of the company in
liquidation were always one and the same estate and ought to be
administered as such by the Master.

[31] The liquidators assert that , in any event, a court has the power to order the
liquidation of a company in terms of section 20(9). They contend that a winding -up
order is competent under section 20(9), not because the section expressly provides for
it, or because such a power can be implied, or because it is not expressly prohibited.

MUSI AJ
15

They submit that upon a proper interpretation of section 2 0(9) as a whole, the words
“any order” within the meaning of section 20(9)(b) mean exactly what those words say
in plain and simple language: “any order” includes an order placing the target company
in liquidation.

Directions
[32] This Court issued directions to the parties requesting them to file written
submissions on the following questions:

“(a) Is it competent for the High Court, by way of section 20(9) of the
Companies Act 71 of 2008, to bring about the liquidation of a company even
though the procedures laid down in the Companies Act for the liquidation of a
company have not been followed?
(b) If such an order is beyond the power of the High Court, is the fact that the
High Court made an incompetent order a ground of rescission?
(c) If this is not a ground of rescission, what remedy does a person who is
negatively affected by such an order have? In particular, is it open to such a
person to appeal the order, having regard to Pitelli v Everton Gardens Projects
CC [2010] ZASCA 35; 2010 (5) SA 171 (SCA)?”

Issues
[33] The issues to be determined in this matter are—
(a) jurisdiction and leave to appeal;
(b) CMSA’s standing;
(c) leave to file a replying affidavit;
(d) an analysis of the High Court’s order;
(e) whether rule 42 of the Rules is applicable; and
(f) the scope of section 20(9) of the 2008 Companies Act.

MUSI AJ
16

Jurisdiction and leave to appeal
[34] In terms of section 167(3)(b)(i) and (ii) of the Constitution, this Court may decide
constitutional matters, and any other matter, if the Court grants leave to appeal on the
grounds that the matter raises an arguable point of law of public importance which ought
to be considered by it.

[35] The liquidators assert that the High Court and the S upreme Court of Appeal,
respectively, dismissed CMSA ’s rescission application and appeal on the basis that
CMSA did not, amongst other things, make out a case for the relief it sought in terms
of rule 42, which self-evidently does not raise a constitutional matter nor an arguable
point of law of public importance which ought to be considered by this Court.
Furthermore, this Court has comprehensively pronounced on the proper application of
rule 42 in Zuma.13

[36] CMSA contends that the central issue is whether the High Court acted within its
powers when it granted the section 20(9) o rder. In addition, it submits that there are
two conflicting judgments on whether a court has the power to liquidate a company in
terms of section 20(9). In Barak,14 it was held that a court does not have such power ,
whereas in this matter , it was held that a court indeed has such power. The
Supreme Court of Appeal, however, did not pertinently resolve the conflict. CMSA
submits that the matter, therefore, also raises an arguable point of law of general public
importance that warrants this Court’s attention.

[37] In Afrocentrics,15 this Court held that the proper exercise of a court’s “powers
impacts the efficacy of courts, the administration of justice and the rights of litigants to
have justiciable disputes decided” and therefore raises constitutional issues that engage

13 Zuma v Secretary of the Judicial Commission of Inquiry into Allegations of State Capture, Corruption and

Fraud in the Public Sector Including Organs of State [2021] ZACC 28; 2021 (11) BCLR 1263 (CC) at
paras 51-70.
14 Barak above n 10.
15 Afrocentrics Projects and Services (Pty) Ltd t/a Innovative Distribution v State Information Technology Agency
(SITA) SOC Ltd [2023] ZACC 2; 2023 (4) BCLR 361 (CC) at paras 24-5.

MUSI AJ
17

this Court’s jurisdiction. A court may not issue orders that it is not empowered to grant.
Our constitutional jurisdiction is engaged. The application bears reasonable prospects
of success and it would be in the interest of justice to grant leave. Leave to appeal is
granted.

CMSA’s standing
[38] Rule 42(1)(a) of the Rules provides that–

“[t]he court may, in addition to any other powers it may have, mero motu [(of its own
accord)] or upon the application of any party affected, re scind or var y an order or
judgment erroneously sought or erroneously granted in the absence of any party
affected thereby.”

[39] The liquidators contend that CMSA d id not have standing to apply for the
rescission of the High Court’s order. They correctly point out that CMSA must prove
that it has standing. They submit that CMSA failed to show that it ha d standing and
that the allegations made by the liquidators in their particulars of claim do not constitute
evidence. Moreover, the liquidators alleged , in the particulars of claim, that the loan
agreements were product s of fraud and con trived. They submit that CMSA di d not
dispute their version and therefore CMSA cannot be an affected party . In addition, if
CMSA is truly a creditor of TFA, then it became a creditor of the consolidated Trillian
entity and it remains open to it to pursu e its claims and rights in the win ding up of the
subject companies.

[40] CMSA asserts that it has standing because it is a creditor of TFA16 and is directly
and materially prejudiced by the section 20(9) order. CMSA points out that the
liquidators alleged in their particulars of claim that CMSA advanced funds to TFA and
TSS in terms of written loan agreement s. They rel ied on th ose loan agreement s to

16 The rescission application alleged that TFA made only partial repayment. A similar allegation was not made

in respect of TSS, so presumably the repayments made by that entity to CMSA were regarded by the latter as
constituting repayment in full.

MUSI AJ
18

impugn the repayments as voidable dispositions. It is therefore illogical for them now
to allege that there were no loan agreements.

[41] CMSA con tends that it requested the High Court to st rike out inadmissible
allegations of fraud made by the liquidators. The High Court did not oblige but instead
relied on those allegations to conclude that CMSA lacked standing.

[42] It is trite that to establish standing under rule 42(1)(a) of the Rules, an applicant
must show a direct and substantial interest in the judgment or order that the applicant
wishes to have varied or rescinded.17 The interest must be a legal interest in the subject
matter of the proceedings that could be prejudicially affected by the order in that action
or application.18 The interest must not be too remote; it must be actual, not abstract or
academic, and it must be a current interest and not a hypothetical interest. 19

[43] The High Court found that CMSA participated in fraudulent conduct , was
therefore not a true creditor of TFA and TSS and could not have been lawfully affected
by the section 20(9) order. It held that CMSA had no standing. It, however, held that
a rescission application based on lack of jurisdiction is sui generis (unique) and does
not fall under the requirements of the Rules relating to rescission generally , and the
High Court considered the application on this basis.

[44] The Supreme Court of Appeal did not expressly deal with the issue of standing.
It found , by implication , that CMSA had standing under rule 42 and dismissed the
appeal on the merits and not for want of standing.

[45] CMSA expressly pleaded that it advanced R110 913 560 to TFA in terms o f a
written loan agreement . TFA only repaid R69 956 099, which left a capital debt of

17 De Villiers v Trustees of the Time Being of the GJN Trust [2018] ZASCA 80; 2019 (1) SA 120 (SCA) at para 22.
18 Id.

18 Id.
19 Four Wheel Drive Accessory Distributors CC v Rattan N.O. [2018] ZASCA 124; 2019 (3) SA 451 (SCA) at
para 7.

MUSI AJ
19

R40 956 461, excluding the accrued interest. It is a creditor of TFA for the balance of
the loan amount. The order deeming TFA not to be a separate juristic person in respect
of any right, obligation or liability has the effect that CMSA cannot enforce its rights in
terms of the loan agreement. It is prejudiced because it cannot claim the balance of the
loan from TFA. At best, it may have a claim against TMC because TFA had been
collapsed into TMC. If it were to pursue such a claim, it would have to do so as an
unsecured creditor. Because there is a concursus creditorum, it would only be able to
recover a dividend, if there is one, after the administration costs, sec ured creditors and
preferent creditors have been paid.

[46] In addition, because of the section 20(9) order, CMSA must now face a new
creditor: the liquidators of TMC in liquidation, who have instituted claims against it in
terms of the Insolvency Act. These claims did not exist before the section 20(9) order
was made, because TFA and TSS retained their separate juristic personalities as well as
their assets and liabilities . The liquidators did not file a cros s-appeal against the
Supreme Court of Appeal’s implicit finding that CMSA had standing and its resultant
order dismissing the appeal instead of removing it from the roll. In my view, CMSA
has a current, direct and substantial legal interest and it is prejudicially affected by the
section 20(9) order.

Leave to file a replying affidavit
[47] CMSA applies for leave to file a replying affidavit. Rule 19 of this Court’s Rules
does not make provision for the filing of a replying affidavit, and a party is therefore
not entitled, as of right, to do so. The application is unopposed. The issues dealt with
in the intended replying affidavit are mostly legal arguments already canvassed by both
parties in the papers. It does not add value and CMSA, during its oral submissions, did

parties in the papers. It does not add value and CMSA, during its oral submissions, did
not argue that the application should be granted. It is not in the interests of justice to
admit the intended replying affidavit. Leave to file the replying affidavit is accordingly
refused.

MUSI AJ
20

Analysis of the High Court’s order
[48] In Finishing Touch 163 ,20 the test for interpretation of a court order was stated
thus:

“The starting point is to determine the manifest purpose of the order. In interpreting a
judgment or order, the court’s intention is to be ascertained primarily from the language
of the judgment or order in accordance with the usual, well-known rules relating to the
interpretation of documents.”21

[49] Paragraph 2(a)(i i) of the High Court’s order states that TMC and the subject
companies shall exist as a single entity by ignori ng their separate legal existence as
contemplated by section 20(9) read with section 22 of the 2008 Companies Act and
Chapter 14 of the 1973 Companies Act. Chapter 14 extensively governs the winding-up
of insolvent companies. The reference to Chapter 14 indicates that the High Court had
the winding-up of the subject companies in mind.

[50] Paragraph 2(a)(iii) of the order unequivocally states that the effective date of the
commencement of the subject companies’ liquidation proceedings is the date upon
which TMC was placed in liquidation. There were no applications for the winding -up
of the subject companies. In terms of section 348 of the 1973 Companies Act, the
winding-up of a company shall be deemed to commence at the time of the presentation
to the court of the winding-up application. To overcome the legislative hurdle, the
High Court pragmatically set a commencement date.

[51] Paragraph 2(b) directed the Master and the CIPC to, amongst other things, amend
their records to reflect the “consolidation of the subject companies and their composite
winding-up process”. This is another indication that the High Court contemplated the
winding-up of the subject companies. In paragraph 2(c) , the High Court ordered that

20 Finishing Touch 163 (Pty) Ltd v BHP Billiton Energy Coal South Africa Ltd [2012] ZASCA 49; 2013 (2) SA
204 (SCA).
21 Id at para 13.

MUSI AJ
21

the costs of the application should be costs in the consolidated winding-up of TMC and
the subject companies.

[52] I therefore disagree with the liquidators’ submission that the High Court did not
liquidate the subject companies. The liquidators’ alternative argument that
section 20(9) empowers a court to order the liquidation of a company will be dealt with
later in this judgment.

Is rule 42(1)(a) of the Rules applicable?
[53] It is common cause that CMSA was not aware of the rule nisi and the final
section 20(9) order as it was not cited as a party. The summons, in the action of the
liquidators against CMSA, was served at its previous address and it was also not aware
that the liquidators ha d issued summons against it. It learned of the action , the
section 20(9) application and the order for the first time after the liquidators launched
an application for default judgment in the action. CMSA requested copies of the
section 20(9) application and the order from the liquidators, which they provided.

[54] The liquidators contend that rule 42(1)(a) is not applicable because the
section 20(9) order is a final order preceded by a duly-circulated rule nisi. They assert
that the order was not erroneously granted because the High Court had the power t o
make the order. They submit that CMSA’s application for rescission is a disguised
appeal.

[55] CMSA states that rule 42(1)(a) provides that a court may rescind an order
erroneously sought or granted in the absence of any party affected thereby. The purpose
of the rule is to expeditiously correct an obviously wrong judgment or order. 22
Furthermore, it submits that if a court grants an order that it is not empowered to grant,
the order is erroneously granted and is wrong.23

22 Promedia Drukkers and Uitgewers (Edms) Bpk v Kaimowitz 1996 (4) SA 411 (C) at 417B-I.
23 City of Johannesburg v Changing Tides 74 (Pty) Ltd [2012] ZASCA 116; 2012 (6) SA 294 (SCA); 2012 (11)

BCLR 1206 (SCA).

MUSI AJ
22


[56] When a court exceeds the bounds of its legal competence by making an order it
has no power to grant, the resulting order may be a legal nullity, no twithstanding its
formal appearance. In Motala,24 the Supreme Court of Appeal held that an order made
without authority is a nullity .25 Being a nullity, a pronouncement to that effect is
unnecessary, does not have to be set aside by a court of equal status and a court may
refuse to enforce it.26

[57] In Tasima,27 the majority in this Court extensively analysed and criticised Motala
and concluded that Motala should not be relied upon for the view that court orders made
in contravention of a statutory prohibition are invalid and therefore ha ve no
consequence.28 The majority held that the general rule is that orders that do not concern
constitutional invalidity have force from the moment they are issued. 29 In light of
section 165(5) of the Constitution, which states that an order or decision issued by a
court binds all persons to whom and organs of state to which it applies, a court order is
binding, irrespective of whether it is valid or not, until set aside.30 The majority further
held that judicial orders wrongly issued are not nullities .31 They exist in fact and may
have legal consequences.32 Furthermore, the majority distinguished a court’s role from
that of the parties and stated:


24 Master of the High Court Northern Gauteng High Court, Pretoria v Motala N.O. [2011] ZASCA 238; 2012 (3)
SA 325 (SCA).
25 Id at para 14.
26 Id.
27 Department of Transport v Tasima (Pty) Limited [2016] ZACC 39; 2017 (1) BCLR 1 (CC) ; 2017 (2) SA 622
(CC).
28 Id at para 188.
29 Id at para 180.
30 Id.
31 Id at para 182.
32 Id.

MUSI AJ
23

“It is the court that, once invalidity is proven, can overturn the decision. The party
does the proving, not the disregarding. Parties cannot usurp the court’s role in making
legal determinations.”33 (Emphasis in original.)

[58] In Ndabeni,34 this Court agreed with the majority in Tasima.35 It held:

“Court orders are effective only when their enforcement is assured. Once court orders
are disobeyed without consequence, and enforcement is compromised, the impotence
of the courts and the judicial authority must surely follow. Effective enforcement to
protect the Constitution earns trust and respect for the courts. This reciprocity between
the courts and the public is needed to encourage compliance, and , progressively,
common constitutional purpose.”36 (Footnotes omitted.)

[59] It is clear that a party negatively affected by an invalid court order may not ignore
the order; such a party must apply to have it set aside. May an affected party do so in
terms of rule 42(1)(a)?

[60] In Bakoven,37 the High Court held that rule 42(1)(a) is a procedural step designed
to correct expeditiously an obviously wrong judgment or order. 38 It further held:

“An order or judgment is ‘erroneously granted’ when the court commits an ‘error’ in
the sense of a ‘mistake in a matter of law (or fact) appearing on the proceedings of a
Court of record’ (The Shorter Oxford Dictionary). It follows that a Court in deciding
whether a judgment was ‘erroneously granted’ is, like a Court of appeal, confined to
the record of proceedings. In contradistinction to relie f in terms of Rule 31(2)(b) or
under the common law, the applicant need not show ‘good cause’ in the sense of an
explanation of his default and a bona fide [(genuine)] defence.”39

33 Id at para 91.
34 Municipal Manager, OR Tambo District Municipality v Ndabeni [2022] ZACC 3; 2023; 2022 (10) BCLR 1254
(CC); 2023 (4) SA 421 (CC).
35 Id at para 24.
36 Id at para 26.

(CC); 2023 (4) SA 421 (CC).
35 Id at para 24.
36 Id at para 26.
37 Bakoven Ltd v G J Howes (Pty) Ltd 1992 (2) SA 466 (E); [1992] 3 All SA 465 (E).
38 Id at 471E-F.
39 Id at 471F-G.

MUSI AJ
24


[61] In Mutebwa,40 the High Court correctly disagreed with the holding in Bakoven
that a court considering a rule 42(1)(a) application is confined to the record, and said
the following:

“There is nothing in the language used in the Rule which indicates that the error must
appear on the record of the proceedings before the power conferred could be exercised.
The contention that the Rule is confined to cases where the error appears on the record
cannot, in my opinion, be correct. Such an interpretation places an unwarranted
limitation on the scope of the Rule. Decided cases show that relief may be granted
under this Rule if: (i) the Court which made the order lacked competence to do so; (ii)
at the time the order was made the Court was unaware of facts which, if then known to
it, would have precluded the granting of the order; or (iii) there was a n irregularity in
the proceedings.”41

[62] In Pitelli,42 the applicant filed both an application for leave to appeal and an
application for rescission.43 The Supreme Court of Appeal held that for an order to be
appealable it must, inter alia, be final in effect.44 It should therefore not be susceptible
to being revisited by the court that granted it.45

[63] Importantly, the Supreme Court of Appeal held that “an order is not final for the
purposes of an appeal merely because it takes effect , unless it is set aside”.46 It is only
final when the proceedings in the court of first instance are complete, and that court
cannot revisit the order. 47 An order taken in the absence of a party is ordinarily not

40 Mutebwa v Mutebwa [2001] 1 All SA 83 (Tk); 2001 (2) SA 193 (TkH).
41 Id at para 22. See also Lodhi 2 Properties Investments CC v Bonde v Developments (Pty) Ltd [2007] ZASCA
85; 2007 (6) SA 87 (SCA) at para 24.
42 Pitelli v Everton Gardens Projects CC [2010] ZASCA 35; [2010] 4 All SA 357 (SCA); 2010 (5) SA 171 (SCA).
43 Id at para 19.
44 Id at para 20.
45 Id.

43 Id at para 19.
44 Id at para 20.
45 Id.
46 Id at para 27.
47 Id.

MUSI AJ
25

appealable because it is capable of being rescinded by the court that granted it. 48 This,
the Court held, leads to the ineluctable “conclusion that an order that is taken in the
absence of a party is ordinarily not appealable”.49

[64] In Lee,50 the High Court mentioned, on the strength of Pitelli, a functional and a
policy consideration against allowing a defaulting party to appeal rather tha n apply for
rescission. Functionally, it held that “the very concept of appealing against an order
granted in default of appearance is incompatible with an appreciation of a court of
appeal’s true function: to re consider cases that have been fully argued at first
instance”.51 The Court correctly found that a court of appeal that is asked to reconsider
a default judgment will always be faced with the choice of deciding a case as a court of
first and last instance, or “remitting the case to the court a quo to be decided again,
which is exactly what the effect of a successful rescission application would have
been”.52

[65] As a matter of policy, it said, “[a] court of appeal ought generally only to
intervene when the proceedings in the court below are complete . For so long as the
court a quo can, in principle, alter or reconsider its order, an aggrieved party’s remedy
lies there”.53 I agree.

[66] In Moyana,54 the High Court held that parties may waive or perempt their right
to apply for rescission, and that act would render the judgment final and appealable. In

48 Id; it was said:
“In some cases an order that is granted in the absence of a party might be rescindable under
rule 42(1)(a), and if it is not covered by that rule . . . it is in any event capable of being rescinded
under the common law.” (Emphasis added.)
49 Id.
50 Lee v Road Accident Fund 2024 (1) SA 183 (GJ).
51 Id at para 13.
52 Id.
53 Id at para 14.
54 Moyana v Body Corporate of Cott onwood, unreported judgment of the Gauteng High Court, Johannesburg,

Case No A3068/16 (17 February 2017) at para 15.

MUSI AJ
26

Pitelli, the Supreme Court of Appeal found that the appealability of an order must be
dependent on the nature of the order and not upon what the litigant chooses to make of
it.55 Moyana held that this view in Pitelli was obiter (stated in passing) and countered
that it is not a matter of a party determining appealability so much as allowing a party
the choice of differen t available remedies (rescission or appeal).56 Neither waiver nor
peremption arises in this case and it is therefore not necessary to determine this issue.

[67] The liquidators submitted that Pitelli is distinguishable. They contend that the
section 20(9) order was preceded by a rule nisi that was published in the
Government Gazette and two newspapers, and that this rendered it final and res judicata
(a matter judged) as between them and the debtors and creditors of the subject
companies. Therefore, they assert, the section 20(9) order should have been appealed.

[68] They rely on Janse van Rensburg57 for their proposition. However, their reliance
is misplaced. In Janse van Rensburg , the joint liquidators of an illegal pyramid
investment scheme applied for orders consolidating the winding-up of certain entities
that were part of the scheme (first application). In a second application , the joint
liquidators applied, amongst other things, for an order that all contracts concluded
between the investment scheme and investors in the scheme were illegal and null and
void. Confirmation of both orders was preceded by the nationwide publication of a
rule nisi which was intended to serve as notice to all investors in the scheme. The
so-called “investors’ representative” initially contested several aspects of the rul e nisi
but abandoned his opposition before its confirmation. The order was not appealed and
the Supreme Court of Appeal held that it became binding on all investors.


55 Pitelli above n 42 at para 31.
56 Moyana above n 54 at paras 14-15.

55 Pitelli above n 42 at para 31.
56 Moyana above n 54 at paras 14-15.
57 Janse van Rensburg N.O. v Steyn [2011] ZASCA 71; 2012 (3) SA 72 (SCA).

MUSI AJ
27

[69] There was proper court -sanctioned service in the first application without any
opposition. The Court, in essence, found with reference to Insamcor58 that the
investors’ failure to react to the rule nisi gave rise to deemed consent. 59 The
acquiescence is deemed in order to “facilitate proof of matters which might otherwise
be difficult to prove in a Court of Law”.60 In Gold,61 the Court stated the principle thus:
“The practice is well established that proof of consent is inferred from failure to object
after the issue of a rule nisi served in a manner and on the persons ordered by the
Court.”62

[70] The affected persons in this case were therefore prima facie (on the face of it)
assumed to have been properly served and therefore to have consented to the order until
sufficient evidence was adduced to displace such assumption. CMSA’s case has always
been that the provisional and final orders did not come to its notice until the liquidators
gave it copies of these orders. This is undisputed. CMSA therefore displaced the prima
facie proof with undisputed evidence and reasons for its absence. There was no wilful
absence. The orders were granted in CMSA’s absence.

[71] Janse van Rensburg did not deal with the principles relating to appealability of
orders. The Supreme Court of Appeal simply mentioned, in passing, that the order was
not subsequently challeng ed by way of an appeal. It did not expressly state that all
orders preceded by a rule nisi, which was published nationwide, must be appealed and
may not be rescinded.

[72] Rather, Janse van Rensburg reinforced the principle that orders are presumed to
be correctly made, whether they were or not. It did not purport to change the position
as espoused in Pitelli nor did it overrule Pitelli. It is therefore unsurprising that

58 Insamcor (Pty) Ltd v Dorbyl Light & General Engine ering (Pty) Ltd; Dorbyl Light & General Engine ering

(Pty) Ltd v Insamcor (Pty) Ltd [2007] ZASCA 6; 2007 (4) SA 467 (SCA).
59 Janse van Rensburg above n 57 at para 15 and id at para 29.
60 R v Haffejee 1945 AD 345 at 352-3.
61 Ex parte Gold 1956 (2) SA 642 (T); [1956] 3 All SA (T).
62 Id at 649E.

MUSI AJ
28

Janse van Rensburg did not refer to Pitelli at all. It is not the publication of the rule nisi
that made the order binding, but the fact that the rule nisi was confirmed, unopposed, in
circumstances where the investors were deemed to be aware of the rule nisi. The order
in the second application was also binding, subject to an investor successfully
challenging it on the grounds of lack of knowledge or being misled. By way of analogy,
CMSA’s case is precisely that it had lacked knowledge of the orders.

[73] The order in the present case was erroneously sought and granted because there
were irregularities in the proceedings. In terms of section 346(4A) of the
1973 Companies Act, a copy of a liquidation application must be furnished to every
registered trade union that, as far as the applicant can reasonably ascertain, represents
any of the employees of the company , and to the employees in the prescribed manner.
It must also be furnished to SARS. The applicant must further, before or during the
hearing, file an affidavit by the person who furnished a copy of the application which
sets out the manner in which the application was furnished.

[74] There is no indication in these papers that there was compliance with
section 346(4A). In EB Steam,63 the Supreme Court of Appeal, correctly, held that the
requirement that the papers be furnished to the persons specified in the section is
peremptory.64

[75] In my view, CMSA has successfully proved that it was absent when the order
was made and that there were irregularities in th e proceedings. The liquidators were
not procedurally entitled to the order in the form in which it was granted . The
section 20(9) order was granted in default of appearance and is a default judgment. The
proceedings remained incomplete in the High Court, regardless of the binding order.
The order could, therefore, be rescinded in terms of rule 42(1)(a).

63 EB Steam Co (Pty) Ltd v Eskom Holdings SOC Ltd [2013] ZASCA 167; [2014] 1 All SA 294 (SCA); 2015 (2)
SA 526 (SCA).
64 Id at para 23.

MUSI AJ
29

Analysis of separate legal personality
[76] The separate legal personality of a company is the very foundation on which
company law rests.65 This principle is linked to the renowned United Kingdom case of
Salomon,66 which is celebrated as the case that firmly established separate corporate
personality and simultaneously represents an early attempt to pierce the corporate veil.67

[77] In Salomon, Lord Halsbury LC said that—

“once the company is legally incorporated it must be treated like any other independent
person with its rights and liabilities appropriate to itself, and that the motives of those
who took part in the promotion of the company are absolutely irrelevant in discussing
what those rights and liabilities are.”68

[78] In Dadoo,69 the Court held that “[t]his conception of the existence of a company
as a separate entity distinct from its shareholders is no merely artificial and technical
thing. It is a matter of substance.”70 With this background, I now turn to consider the
interpretation of section 20(9).

Interpretation of section 20(9)
General principles of interpretation
[79] In terms of section 39(2) of the Constitution, when interpreting any legislation,
a court must promote the spirit, purport and objects of the Bill of Rights. When
interpreting a document, including a statute , the starting point is the text itself. Words
must be given their ordinary grammatical meaning unless doing so would result in
absurdity; if the words are clear and unambiguous, their grammatical meaning must be

65 Cassim “Piercing the Veil under Section 20(9) of the Companies Act 71 of 2008: A New Direction” (2014) 26
South African Mercantile Law Journal 307 at 307.
66 Salomon v Salomon & Co Ltd [1896] UKHL 1; [1897] AC 22.
67 VTB Capital plc v Nutritek International Corp [2013] UKSC 5 (VTB) at para 122.
68 Salomon above n 66 at 30.
69 Dadoo Ltd v Krugersdorp Municipal Council 1920 AD 530.
70 Id at 550.

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30

adhered to. The court must also have regard to the context in which the words appear
and the text itself should not be viewed in isolation. The text is almost always
influenced by its context. In interpreting an Act , a construction that promotes the
purpose or object underlying the Act, including the mischief it seeks to address, should
be preferred above a construction that will not do so.71

[80] Interpretation is a unitary exercise: the text, context and the purpose should be
considered simultaneously. 72 All statutes must be construed consistently with the
Constitution; where reasonably possible, legislative provisions should be interpreted to
preserve their constitutional validity.73

Interpreting section 20(9)
[81] Section 5(1) of the 2008 Companies Act provides that the Act must be applied
and interpreted in a manner that gives effect to its purposes as set out in section 7.
Section 5(2) states that , to the extent appropriate, a court interpreting the Act may
consider foreign law. In terms of section 19(1), a company becomes a ju ristic person
from the time and date that its incorporation is registered and exists continuously until
its name is removed from the companies register. This is in conformance with the
common law.

[82] I agree with the judgment in Gore74 that section 20(9) is supplemental to the
common law, rather than substitutive. 75 I also agree with Gore that the section is cast
in very wide ter ms, indicative of an appreciation by the Legislature that it might find

71 Cool Ideas 1186 CC v Hubbard [2014] ZACC 16; 2014 (4) SA 474 (CC); 2014 (8) BCLR 869 (CC) at para 28
and Natal Joint Municipal Pension Fund v Endumeni Municipality [2012] ZASCA 13; 2012 (4) SA 593 (SCA) at
paras 17-26. See also Independent Institute of Education (Pty) Limited v Kw aZulu-Natal Law Society [2019]
ZACC 47; 2020 (2) SA 325 (CC) at para 18 and Malakite Body Corporate v City of Johannesburg Metropolitan

Municipality [2025] ZASCA 192 at para 13.
72 University of Johannesburg v Auckland Park Theological Seminary [2021] ZACC 13; 2021 (6) SA 1 (CC);
2021 (8) BCLR 807 (CC) at paras 65-6.
73 Cool Ideas above n 71.
74 Ex parte Gore N.O. [2013] ZAWCHC 21; [2013] 2 All SA 437 (WCC); 2013 (3) SA 382 (WCC).
75 Id at para 34.

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31

application in widely varying factual circumstances. 76 The 2008 Companies Act does
not define what would constitute an unconscionable abuse. It avoids metaphors like
fraud, scam and façade.77 The court must find the relevant wrongdoing on the facts of
each case.

[83] In this matter, CMSA accepts that the liquidators ha d the necessary standing to
bring the section 20(9) application. It also does not dispute that the liquidators proved
that the conduct of the subject companies amounted to an unconscionable abuse of their
respective corporate personalities. Importantly, it does not challenge the High Court’s
order that the subject companies are to be deemed not to be separate juristic persons in
respect of all their rights, obligations or liabilities.

[84] The court is not obliged to invoke section 20(9), even though an unconscionable
abuse of a company’s separate personality has been shown. The court may do so. This
indicates that the court has a discretion whether to pierce the corporate veil.78 As stated
above, CMSA does not challenge the High Court’s exercise of its discretion to disregard
the separate corporate existence of the subject companies.

[85] It is common cause that section 20(9) consists of two parts. Paragraph (a)
confers the power on a court to declare that a company is deemed not to be a juristic
person. Such a declaration may only be made in respect of any right, obliga tion or
liability of the company or of a shareholder of the company. The phrase “any right,
obligation or liability” could include all the company’s rights, obligations and liabilities
or only certain of those rights, obligations or liabilities. Paragraph (b) grants the court

76 Id at para 32.
77 In VTB above n 67 at para 124, the Court said:
“Words such as ‘façade’, and other expressions found in cases, such as ‘the true facts’, ‘sham’,
‘mask’, ‘cloak’, ‘devise’, or ‘puppet’ may be useful metaphors. However, such pejorative

‘mask’, ‘cloak’, ‘devise’, or ‘puppet’ may be useful metaphors. However, such pejorative
expressions are often dangerous, as they risk assisting moral indignation to triumph over legal
principle, and, while the y arrive at a result which seems fair in the case in question, they can
risk causing confusion and uncertainty in the law.”
78 Cassim above n 65 at 310.

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32

the power to make “any further” appropriate order “to give effect” to the declaration
made in terms of paragraph (a).

[86] The phrase “any further order” in section 20(9)(b) is very broad. It grants the
court the “very widest of powers” to grant consequential relief.79 Gore states that an
order under “paragraph (b) will always have the effect . . . of fixing the right, obligation
or liability in issue of the company somewhere else” .80 This observation accords with
the common law principle espoused in Cape Pacific:81

“Thus if a company, otherwise legitimately established and operated, is misused in a
particular instance to perpetrate a fraud, or for a dishonest or improper purpose, there
is no reason in principle or logic why its separate personality cannot be disregarded
in relation to the transaction in question (in order to fix the individual or individuals
responsible with personal liability) while giving full effect to it in other respects . In
other words, there is no reason why what amounts to a piercing of the veil pro hac vice
[(for or on this occasion only)] should not be permitted.”82 (Emphasis added.)

[87] In the United Kingdom, the principle was expressed in Prest83 as follows:

“I conclude that there is a limited principle of English law which applies when a person
is under an existing legal obligation or liability or subject to an existing legal restriction
which he deliberately evades or whose enforcement he deliberately frustr ates by
interposing a company under his control. The court may then pierce the corporate veil
for the purpose, and only for the purpose, of depriving the company or its controller of
the advantage that they would otherwise have obtained by the company’s s eparate
legal personality.”84 (Emphasis added.)


79 Gore above n 74 at para 34.
80 Id.
81 Cape Pacific Ltd v Lubner Controlling Investments (Pty) Ltd [1995] ZASCA 53; [1995] 2 All SA 543 (A); 1995
(4) SA 790 (A).

(4) SA 790 (A).
82 Id at 804C-D
83 Prest v Petrodel Resources Limited [2013] UKSC 34; [2013] 4 All ER 673 (HL).
84 Id at para 35.

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33

[88] The phrase “to give effect to” , in paragraph (b), is not defined in the
2008 Companies Act. It must therefore be given its ordinary grammatical meaning,
unless to do so would lead to an absurdity. The phrase “to give effect to” means to
make operative or put into force .85 It therefore means to operationalise or implement.
Although paragraph (b) is couched in wide terms, its breadth is restricted by the phrase
“to give effect to” and the word “appropriate”. It is not a self-standing power, divorced
from the declaratory order under paragraph (a).

[89] The two paragraphs are interconnected. A court’s power is circumscribed by
paragraph (b). A court is obliged to ensure that the order in terms of paragraph (b) gives
effect to the declaration under paragraph (a). If the order is not appropriate to give
effect to the declaration under paragraph (a), it should not be made. The purpose of the
order under paragraph (b) is to cause or facilitate the proper implementation of
paragraph (a). The facts of the case and the rights, obligations or liabilities which form
the subject matter of the paragraph (a) declaration will dictate the kind of order to make
under paragraph (b).

[90] Paragraph (b) does not sanction or proscribe the winding-up of a company. On
the facts of this case, it is not necessary to decide whether a court may order the
liquidation of a company under section 20(9)(b). I doubt whether there could ever be
circumstances in which a liquidation order would be appropriate under section 20(9)(b).
However, in my view, the question in this case is rather whether it was appropriate for
the High Court to order the liquidation of the subject companies to give effect to the
relocation of the rights, obligations and liabilities of the subject companies.

[91] The answer is no. I say so because the liquidation of the subject companies was
unnecessary in order to achieve the High Court’s intended purpose, namely that the

unnecessary in order to achieve the High Court’s intended purpose, namely that the
subject companies should be deemed not to be juristic persons in respect of their rights,
obligations and liabilities, and that such rights, obligations and liabilities should be

85 Brown The New Shorter Oxford English Dictionary on Historical Principles (OUP, Oxford 1993) 1 on 786.

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34

relocated to TMC. There was no need to order the liquidation of the subject companies
to bring about this result. The additional order made in terms of paragraph (b)
inappropriately sought to annihilate the subject companies , whereas the order already
sufficiently dealt with all their rights, obligations and liabilities. The appropriate order
to give effect to the order under paragraph (b) is to state what should happen to their
rights, obligations and liabilities, namely that they should be relocated to TMC.

Conclusion
[92] CMSA brought the rescission application and litigated the matter up to this Court
in the mistaken belief that if it succeed ed in establishing that the subject companies
could not be liquidated, there would have to be separate liquidations of TSS and TFA
before CMSA could be sued for voidable dispositions. CMSA did not dispute that the
High Court was empowered, without liquidating the subject companies, to order that
they would be deemed not to be separate juristic persons in relation to their assets,
liabilities and obligations, and that such assets, liabilities and obligations should instead
be relocated to TMC.

[93] Consequently, any obligations that TSS and TFA owe or owed to CMSA would
now be obligations owed by TMC to CMSA. Therefore, any assets disposed of by TSS
and TFA to CMSA would now have to be regarded as assets disposed of by TMC to
CMSA. Resultantly, CMSA cannot insist on retaining TSS and TFA as its contractual
counterparties.

[94] The liquidators have not sued CMSA in their capacity as purported liquidators
of TSS and TFA, but as liquidators of TMC. It is therefore the commencement date of
TMC’s liquidation that is germane. If the High Court had not made orders purporting
to liquidate the subject companies, but only relocated their assets, liabilities and
obligations to TMC, they would have been left as empty shells. The setting aside of the

obligations to TMC, they would have been left as empty shells. The setting aside of the
parts of the order which sought to liquidate the subject companies ultimately amounts
to a pyrrhic victory for CMSA.

MUSI AJ
35

[95] The parts of the order relating to the liquidation of the subject companies should
be set aside and corrected for the reasons stated above. It is not an appropriate order as
contemplated in section 20(9)(b).

[96] The liquidators argued that CMSA should have requested declaratory relief
instead of approaching the High Court in terms of rule 42(1)(a). However, thi s
argument puts form over substance. CMSA prayed for the setting aside or variation of
the High Court order. Rule 42(1)(a) is an appropriate pathway to achieve the variation
because the order was erroneously sought in CMSA’s absence.

Costs
[97] The setting aside of the purported liquidation orders is a hollow victory for
CMSA, therefore each party should bear its own costs.

Order
[98] I accordingly make the following order:
1. Leave to appeal is granted.
2. The appeal is upheld in part.
3. The order of the Supreme Court of Appeal is set aside and replaced by the
following:
“(a) The appeal is upheld to the extent set out below, with no order as
to costs.
(b) Paragraph 2 of the order of the High Court is set aside and replaced
with the following:
‘(2) The following order is made:
(a) Trillian Capital Partners (Pty) Ltd [Reg No:
2015/111759/07], Trillian Securities (Pty) Ltd [Reg
No: 2015/152852/07], Trillian Nominees (Pty) Ltd
[Reg No: 2017/036662/07], Trillian Shared Services
(Pty) Ltd [Reg No: 2015/11 1747/07], Trillian

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36

Property (Pty) Ltd [Reg No: 2016/046295/07] and
Trillian Financial Advisory (Pty) Ltd [Reg No:
2014/122082/07] (“the subject companies”):
(i) shall be deemed not to be separate juristic
persons in respect of any right, obligation or
liability of those companies or of a
shareholder of the subject companies;
(ii) in terms of section 20(9)(b), any right,
obligation or liability of the subject
companies shall be relocated to Trillian
Management Consulting (Pty) Ltd (“TMC”)
(in liquidation).
(b) The costs of this application are costs in the
winding-up of TMC in liquidation.’”
4. Each party to pay their own costs.

For the Applicant:



For the First and Second Respondents:
G D Wickins SC and J Brewer
instructed by Tabacks Attorneys
Incorporated

B H Swart SC and P Lourens instructed
by MacRobert Attorneys