2
of the bank account held by a closed corporation (“CC”), thereby permitting the
corporation to operate the account. Part B, still to be instituted, will address the
declaration that the first respondent's expungement of the applicant's membership
interest in the close corporation is unlawful, and seek an order under section 21(2)(c)
of the Insolvency Act
1 separating that interest from the insolvent estate of the fourth
respondent, Mr Mark Farber, to whom the applicant is married.
[2] The applicant's founding affidavit asserts standing on the basis of a retained
proprietary and reversionary interest in the close corporation. However, the founding
affidavit does not mention that the CC was placed in final liquidation two months ago,
nor that this urgent application was launched without that disclosure. This has a
fundamental bearing on who has authority to deal with the CC’s assets, including its
bank account.
[3] The first respondent raised the applicant’s standing as a point in limine. Relying
on AMS Marketing Co v Holzman
2 they indicate that on winding-up, a corporation’s
members and directors are divested of the power to act on its behalf, as such power
passes to the liquidators, or, p ending the liquidator ’s appointment, to the Master by
virtue of section 361 of the Companies Act 3 as applied to closed corporations by
section 66(1) of the Close Corporations Act. 4 On this argument, it is the trustee, and
not a person such as the applicant who merely retains an interest, who is entitled to
deal with and litigate in respect of an estate, save where the trustee neglects or refuses
to act. The first respondent contends that this is not met on the facts of this matter.
[4] I am satisfied that the point in limine must succeed. The CC is in final liquidation.
Whatever interest the applicant retains does not authorise her to instruct, or to compel
instruction, regarding dealings with the assets of a corporation. In the absence of a
instruction, regarding dealings with the assets of a corporation. In the absence of a
liquidator, that authority vests in the Master (who was also not joined). The applicant
1 24 of 1936.
2 1983 (3) SA 263 (WLD) at 269E-F.
3 61 of 1973.
4 69 of 1984.
3
has accordingly failed to establish the standing necessary to seek the relief claimed in
Part A.
[5] At the hearing, counsel for the applicant handed up an email indicating that the
Master would decide imminently (the next day) on the appointment of a liquidator to
the close corporation. I record this for completeness. It underscores the difficulty facing
the applicant: even if this court were persuaded to grant the relief sought in Part A,
any such order would be of markedly short duration, since the appointment of a
liquidator would immediately displace whatever residual control the order purported to
restore, with the authority to deal with the close corporation's assets then vesting in
the liquidator rather than in the applicant. The relief sought is accordingly not only
unsupported by standing but would, in any event, be overtaken by events within a
short time.
[6] As a result, the application is dismissed for want of locus standi.
[7] Regarding costs, the first and second respondents seek an order de bonis
propriis against the applicant's attorneys of record. I decline to grant that relief. Nothing
before me suggests that the applicant's attorneys acted mala fide, or that they were
aware of the close corporation's liquidation and nonetheless elected to withhold it from
this court; the more probable inference, on the papers, is that they proceeded on their
client's version. The same latitude cannot be extended to the applicant herself. I am
accordingly satisfied that costs should be awarded on the attorney-and-client scale.
Order
[8] The following order is made:
1. The application is dismissed with costs on an attorney and client
scale.
______
WJ du Plessis
Judge of the High Court, Gauteng Division,
Johannesburg
4
Date of hearing:
30 July 2026
Date of judgment:
30 July 2026
For the applicant:
S Cohen instructed by Davids Attorneys
Inc
For the respondent:
HD Baer instructed by Van Veijeren Inc