REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, PRETORIA
REPORTABLE: NO
OF INTERESTTO OTHERJ DGES: NO
REVISED:~ f.:t:> ,
12JUNE2026
DATE
In the matter between:
JOHAN FRANCOIS ENGELBRECHT N.O
PETRUS JACOBUS CORNE VAN STADEN N.O
AMANDA LINDOKUHLE VILAKAZI N.O
and
INDEPENDENT DEVELOPMENT TRUST
KARABO SIYILA N.O
NTHABISENG MKHWANAZI N.O
MPILO MBAMBISA N.O
KRISHEN SIKDEV N.O
Case No: 2025-062022
First Applicant
Second Applicant
Third Applicant
First Respondent
Second Respondent
Third Respondent
Fourth Respondent
Fifth Respondent
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LUFUNI NEVONDWE N.O
MATODZI RATSHUMBILAMI N.O
DEREK NAIDOO N.O
FRANCIS-SUBBIAH, J:
JUDGMENT
Sixth Respondent
Seventh Respondent
Eighth Respondent
[1] This application concerns the alleged wrongful post-liquidation payment by the
first respondent, Independent Development Trust (IDT) of a debt due to Ntsangalala
Holdings (Pty) Ltd, (Ntsangalala) a company in liquidation. The payment was made to
the account of Nukeri Attorneys , who acted on behalf of the company during liquidation
and prior to the appointment of the liquidators.
[2] The core issue revolves around a payment of R655,352.57 made by IDT to
Nukeri Attorneys , intended for Ntsangalala in liquidation and whether the applicants
have a right of recourse against IDT.
[3] The applicants, as liquidators of Ntsangalala allege that Nukeri Attorneys was
not authorised by them to receive funds on behalf of the insolvent estate. However,
the liquidators were not appointed when the letter of demand was sent on 21
November 2023. Ntsangalala was finally liquidated on 14 December 2023. Payment
in terms of the letter of demand dated 21 November 2023 was made on 11 January
2024 by IDT. The applicants were appointed as liquidators on 7 February 2024 after
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the payment was made. The enquiry by the liquidators took place only, on 18 March
2024 when the IDT and the MEC of the Department of Education were summoned for
an inquiry into the affairs of the insolvent estate of Ntsangalala.
[4] The applicants demanded payment from the IDT in March 2025 which demand
was refused. Applicants further contend that the debt owing to the insolvent estate was
therefore not expunged as there was no effective payment made to the insolvent
estate.
[5] Further to the above, the applicants contend that the payment should have
been made to the liquidators of the insolvent estate and that payment of any debt to
other parties other that the insolvent estate is legally impermissible and severely
prejudicial to the concursus creditorium . They submit that the payment by the IDT to
Nukeri Attorneys is wrongful and the fact that it was paid into the business account of
Nukeri Attorneys is alarming and negligent.
[6] The IDT denies that it owes the applicants the aforesaid amount and that the
applicants have no claim against the IDT. It contests the claim emphasizing that
payments made by IDT were in good faith and under the belief of proper authority as
the letter of demand required the payment into the attorney's trust account. There was
a longstanding relationship with the company having done work at Matimba Secondary
School. There was no reason for IDT to doubt the authority of the Ntsangalala's
attorneys to receive payment and acted in good faith in discharging the debt. There
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was nothing to suggest that payment into the attorneys' account would be wrongful,
unauthorised or ineffective in the circumstances.
[7] IDT argues a point in limine that Nukeri Attorneys and Ms Mashego, director of
Ntsangalala have a direct interest in the proceedings due to their involvement in debt
collection and ought to have been joined in the proceedings. Ms Mashego, as Director
appointed Nukeri Attorneys by a resolution on 18 November 2023 to represent the
company in the liquidation proceedings in an attempt to have the provisional liquidation
order of 28 August 2023 set aside.
[8) IDT submits that there were improper collection efforts by the applicants, after
the liquidation, since they make allegations of misrepresentation and unlawful
instructions, the parties having a direct interest in the proceeding should have been
joined.
[9] On 31 March 2025 IDT sent a letter to the applicants in response to their letter
of demand dated 11 March 2025 and expressed that the Director of Ntsangalala, Ms
Mashego would have a duty of disclosure of the payment made by IDT on 10 January
2024 to the applicants. It was further emphasised that at the time of making the
payment IDT was not aware of the liquidation orders and unaware that the demand
from Nukeri Attorneys may constitute a misrepresentation. Especially since Ms
Mashego indicated her intention to employ the service of her attorneys to collect
outstanding debt when it is now questionable whether she had authority to do so.
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(1 0] Ordinarily a provisional liquidation order does not automatically extinguish all
powers of Directors in every respect. Directors may retain certain residual powers
during provisional liquidation, particularly where no liquidator has been appointed and
there is no one else able to act for the company. At the time of demand and payment
the Director's action appeared compatible with the purpose of the winding-up and
aimed at preserving or recovering assets of the company.
[11] Collecting a debt owed to the company generally increases the assets available
to creditors. If there was no provisional liquidator in office and the attorney successfully
recovered money that belonged to the company there is a strong argument that the
recovered funds belong to the company and later form part of the insolvent estate.
[12] IDT further highlights the applicants' failure to join interested parties and point
out the role of the Master of High Court in liquidation proceedings. The Master is
vested with the powers of regulating the insolvent estate until the appointment of
liquidators ought to have acted with diligence by either informing IDT that Ntsangalala
is placed under provincial liquidation or at least engaged with Ms Mashego by
informing her that she has no authority to instruct her attorneys.
(13] The test for joining a party in proceedings was considered in Absa Bank
Limited v Naude N.O and Others (20264/2014) [2015] ZASCA 97; 2016 (6) SA 540
(SCA) (1 June 2015) (at paragraph 10) where the court held that:
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"The rule is that any person is a necessary party and should be joined if such person
has a direct and substantial interest in any order the court might make, or if such an
order cannot be sustained or carried into effect without prejudicing , that party, unless
the court is satisfied that he or she has waived his or her right to be joined."
[14] Further, as stated by the applicants in their founding affidavit that Nukeri
Attorneys had no authority to act on behalf of the insolvent company and mandate
from the liquidators to collect debts. This acknowledges that Nukeri Attorneys are
directly involved in the subject matter of this litigation in that they were the creators of
the letter of demand that caused IDT to make payment to them. The evidence is
undisputed that IDT made payment following a demand to settle the debt it owed to
Ntsangalala. The applicants case stems from the same payment already made to
Nukeri Attorneys, claiming that Ntsangalala is still owed.
[15] IDT did not simply pay an unrelated third party. IDT made previous payments
to Ntsangalala in terms of their contractual association. The payment in question was
made to Nukeri Attorneys who had issued a formal demand for payment from
Ntsangalala. IDT was never informed of any termination of authority and paid Nukeri
Attorneys who had presented itself as the company's authorized representative. The
estate of Ntsangalala would have benefited from the payment, or at least the funds
came under the control of the company's attorney. IDT acted reasonably and in good
faith. These facts provide a substantial basis for a defence that the debt was
discharged upon payment.
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[16) To require IDT to pay the same debt twice, where it acted bona fide and the
payment was made to someone who appeared authorized to receive it. The applicants
would need to establish why the payment did not legally discharge the debt and why
the payment was void or ineffective. It remains unknown whether Nukeri Attorneys
retained the money or paid it over to Ntsangalala.
[17) The applicants have produced no evidence concerning the whereabouts of the
money, investigations undertaken and demands made to the attorneys. The most
significant facts are the liquidators themselves had not yet been appointed when the
payment was made and there was no liquidator communicating with IDT.
[18) The applicants fail to tell whether they contacted the attorney, whether they
demanded payment and whether they investigated the attorney's accounting records,
whether they attempted recovery from the attorney. The applicants case remains
incomplete. The fact that the liquidators never received the money does not
automatically establish that the IDT still owes the debt. It is however, evident from the
papers before court that the applicants have no interest in joining the interested parties
and proceeded with litigation against IDT.
[19) The legal question is whether IDT validly discharged the debt by paying Nukeri
Attorneys. In accordance with the principle established in Plascon-Evans Paints
(TVL) Ltd. v Van Riebeck Paints (Pty) Ltd. (53184) [1984) ZASCA 51; {1984) 2 All
SA 366 (A); 1984 (3) SA 623; 1984 (3) SA 620 (21 May 1984), it sets out that where
final relief is sought on motion and disputes of fact arise, the matter must be decided
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on the facts stated by the respondent together with those facts admitted by the
applicant, unless the respondent's version is so far-fetched or clearly untenable that it
can be rejected on the papers.
[20] In the present matter, IDT's evidence is that the debt was paid in full to Nukeri
Attorneys when a demand for payment is not genuinely with facts disputed. Nor have
the applicants produced evidence capable of demonstrating that the payment did not
occur or that the funds were not received by the attorneys concerned. Therefore, I DT's
version must be accepted for purposes of determining the application.
[21] On the accepted facts, IDT discharged its indebtedness in good faith by making
payment to the attorneys who purported to act on behalf of the company. There is no
evidence that the IDT acted improperly, nor is there evidence that IDT was aware of
any alleged lack of authority on the part of the attorneys to receive payment.
Accordingly, IDT cannot be compelled to pay the same debt a second time merely
because a dispute has subsequently arisen regarding the authority of the recipients of
the original payment.
[22] Furthermore, the applicants seek relief that directly affects the rights and
interests of the attorneys who received the payment and any other parties who may
have received, controlled, or accounted for those funds. Those parties have a direct
and substantial interest in the outcome of the proceedings. The applicants' failure to
join such interested parties is fatal to their relief sought, as no court should determine
issues affecting parties rights in their absence.
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[23] Accepting IDTs version as required by the Plascon-Evans rule, the debt was
discharged by payment legally effective after a letter of demand, the debt was
discharged and the applicants have failed to establish a legal basis upon which IDT
can be ordered to repay an obligation that has already been discharged. It would
further be inequitable to require IDT to bear the consequences of circumstances of
which it had no knowledge and over which it had no control.
[24] The issue before court is not whether the insolvent estate ultimately received
the money, but whether IDT validly discharged its obligation by paying the party who,
at the time, appeared authorized to receive payment. IDT was entitled to assume that
payment into the attorneys' account would validly discharge its obligation. In terms of
the Plascon-Evans rule the court accepts this for purposes of final relief on the papers
that IDT discharged its obligation.
[25) Court Order:
The application is accordingly dismissed with costs on scale C. -----
R. FRANCIS-SUBBIAH
Judge of the Gauteng High Court
Pretoria
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Appearances
For Applicant:
Instructed by:
For Respondent:
Instructed by:
Hearing: 28 May 2026
Judgment: 12 June 2026
Adv. Raubenheimer
Adv. GJ Lotter
Van der Merwe & Associates
Adv M.O Mudimeli
Mmakola Matsimela Attorneys
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