Michelin Tyre Company (South Africa)(Pty) Ltd v Janse Van Rensburg and Others (198/2001) [2002] ZASCA 55 (29 May 2002)

About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Supreme Court of Appeal
SAFLII
>>
Databases
>>
South Africa: Supreme Court of Appeal
>>
2002
>>
[2002] ZASCA 55
|

|

Michelin Tyre Company (South Africa)(Pty) Ltd v Janse Van Rensburg and Others (198/2001) [2002] ZASCA 55; 2002 (5) SA 239 (SCA) (29 May 2002)

SUPREME
COURT OF APPEAL
OF
SOUTH AFRICA
Reportable
Case no: 198/2001
In the matter between
MICHELIN TYRE COMPANY (SOUTH AFRICA)
(PTY)
LTD
Appellant
and
F
JANSE VAN RENSBURG
1
st
Respondent
L
JANSE VAN RENSBURG
2
nd
Respondent
L
M JANSE VAN RENSBURG
3
rd
Respondent
Coram
:
HEFER
AP, ZULMAN , BRAND, NUGENT, JJA LEWIS AJA
Heard
: 16 May 2002
Delivered
: 29
May 2002
Summary:
Companies Act 61 of 1973 - s 417 enquiry - only available in
windings-up by the court.
JUDGMENT
HEFER AP:
HEFER AP :
[1]
The crisp question
before us is whether an enquiry under s 417 of the Companies Act 61
of 1973 may be held into the affairs of a company
which is being
wound up voluntarily. The question originally arose before Soggot AJ
in the Witwatersrand Local Division of the High
Court in an
application to set aside the Master’s decision to hold such an
enquiry. The learned judge ruled that s 417 does not
apply in
voluntary windings-up and granted the application. The creditor who
had requested the enquiry has now appealed.
[2]
I do not intend
dealing with all the points in the elaborate written heads of
argument filed by appellant’s counsel because the
oral debate in
this court has reduced his entire argument to two basic submissions.
They are (1) that the language used in s 417
reveals an intention to
make the enquiry available in compulsory as well as in voluntary
windings-up, and (2) that, interpreted purposively
and in such a way
that unreasonable and unintended results are avoided, the section
does not exclude an enquiry relating to a company
being wound up
voluntarily.
[3]
I reject the first
submission for the simple reason that it is not supported by the
wording of s 417. Let me say first that the
Act contains a number of
provisions which are expressly devoted to compulsory windings-up,
others expressly devoted to voluntary
windings-up and a series of
general provisions which expressly relate to both types of
winding-up. It is not possible to fit s
417 into any one of these
categories. Whether it only applies to compulsory windings-up or to
voluntary windings-up as well must
be decided by interpreting the
section itself. It reads as follows:
“In any winding-up of a company unable to pay its debts, the
Master or the Court may, at any time after a winding-up order has
been made, summon before him or it any director or officer of the
company or person known or suspected to have in his possession
any
property of the company or believed to be indebted to the company,
or any person whom the Master or the Court deems capable
of giving
information concerning the trade, dealings, affairs or property of
the company.”
The argument for the appellant
rests entirely on the opening words “
in any winding up
of a company unable to pay its debts
”
and on the fact
that the same words occur elsewhere in the Act in provisions which
apply to both types of winding-up. I have two
observations. The
first is that the opening words cannot be isolated from the rest of
the provision. As Soggot AJ said in his judgment,
“whilst it is true that the introductory words of section 417 ‘
...
in any winding-up of a company unable to pay its debts ...’
would suggest that the section is wide-ranging in its effect,
they are immediately followed by the words ‘ ...
the Master or
the court may at any time after a winding-up order has been made,
summon before him or it any director
...’ indicating in my
view with specificity an intention to limit the ambit of the section
to that genre of winding-up proceedings
which has been initiated by
a compulsory winding-up order.”
Secondly, I attach little
weight to the fact that the same words appear elsewhere in the Act
in the context of both types of winding-up.
An assumption of
consistent intent arising from the use of the same words in several
parts of the same legislation is only justified
where there is
insufficient countervailing material. Quite unlike any other
provision of the Act the words in question are followed
in s 417 by
others which bear the plain implication that the operation of the
section is confined to windings-up by the court.
One cannot ignore
these words; nor can one qualify them so that they mean something
less without reading a qualification into the
section which the
legislature itself has not inserted.
[4]
Coming to the second
submission I wish to say that I share the view expressed in
South
African Philips (Pty) Ltd and Others v The Master and Others
2000(2)
SA 841 (N) at 847G
that the language used in s 417 is
perfectly clear; and that one cannot nullify a plainly expressed
intention under the guise of
purposive interpretation. The second
submission rests in any event upon a misconception. The court
a
quo
’s construction does not, as appellant’s counsel
suggested, exclude an enquiry of the kind envisaged in the section
in the case
of a company being wound up voluntarily. There are at
least two ways of procuring a s 417 enquiry even in a voluntary
winding-up.
The first is to convert the winding-up into a winding-up
by the court under s 346(1)(e); and the other is an application to
court
under s 388 for leave to convene an enquiry.
[5]
In my view the court
a quo
’s interpretation of s 417 is correct.
The appeal is dismissed with
costs.
______________________
JJF
HEFER
Acting
President.
Concur:
Zulman
JA
Brand
JA
Nugent
JA
Lewis
AJ