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Du Plessis and Another v Master of the High Court, (Cape Town) and Others - Reasons (12024/2022) [2023] ZAWCHC 188 (4 August 2023)

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Insolvency Law
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Brief Summary

Insolvency — Review of decision — Validity of insolvency enquiry — Applicants sought to review the first respondent's decision declaring an insolvency enquiry invalid — The first respondent had dismissed a complaint regarding the enquiry's legality — The applicants contended that the enquiry was valid and properly convened, despite the first order lacking a signature — The court found that the decision to declare the enquiry invalid was unreasonable, as no objections were raised during the proceedings, and substantial evidence had been gathered — The court set aside the first respondent's decision and declared the enquiry valid for the specified period.

Comprehensive Summary

Summary of Judgment


Introduction


The matter concerned an application to review and set aside an administrative decision taken by the Master of the High Court, Cape Town. The applicants, Johannes Hendricus Du Plessis and Ayesha Mahomed Ayob, approached the Western Cape Division of the High Court seeking review relief in relation to the Master’s determination that an insolvency-related enquiry was invalid.


The respondents were the Master of the High Court, Cape Town (first respondent), Hein Vogel (second respondent), Alan Richard Newton N.O. (third respondent, described as the commissioner appointed to conduct the enquiry), Cratos Capital (Pty) Ltd (fourth respondent, described as the only creditor who proved a claim), and JSE Limited (fifth respondent, whose employees had participated in the enquiry and which was later joined to the proceedings).


The procedural history, as reflected in the reasons, was that an enquiry into the affairs of a liquidated company had been convened pursuant to orders issued from the Master’s office. A complaint was lodged with the Master (by the second respondent) questioning the legality of the enquiry. This culminated in the Master issuing a ruling declaring the enquiry invalid and of no force and effect. The applicants then launched the present review, seeking to set aside that decision and to substitute it with a finding that the enquiry was valid for a defined period only.


The general subject-matter of the dispute was the validity of a company winding-up enquiry convened into the affairs of a liquidated company, and specifically whether the Master’s decision to invalidate the whole enquiry (including portions conducted after a later, signed authorising order existed) was lawful, reasonable, and within the Master’s powers.


Material Facts


The court proceeded from the premise that the fourth respondent’s principal business was connected to the trading of equities listed by the fifth respondent. The fourth respondent traded through arrangements that permitted trading in instruments described as “futures”, with clearing undertaken through a registered deposit-taking institution. The liquidated company (identified in the reasons as Cygne Bleu (Pty) Limited) was a client of the fourth respondent for these trading activities.


It was common cause that the liquidated company was finally wound up because it was indebted to the fourth respondent. Thereafter an enquiry was convened into the affairs of the liquidated company, and the third respondent was appointed as commissioner. The enquiry was held across multiple hearing dates and at different venues.


A key chronological fact, relied upon by the court, was that the applicants received an initial authorising order from the Master (described as the “first order”) which bore an official stamp but was not signed by the Master. No proper explanation for the absence of a signature was provided on the papers. During the period of pandemic restrictions, the enquiry proceeded notwithstanding the absence of signature, and the second respondent gave evidence without objecting to the legality of the proceedings.


Thereafter the applicants received a further “mirror” order from the Master (the “second order”), which was both stamped and signed. Following this, the second respondent addressed letters to the Master making allegations about the enquiry and its participants, seeking removal of the applicants as liquidators, and demanding that the Master declare the entire enquiry illegal, null and void.


In response, the applicants asserted that no witness had objected to the validity of the proceedings on the enquiry dates; that they believed the enquiry had been properly constituted; and that, if their belief was incorrect, they sought condonation for dates prior to receipt of the signed order. They also highlighted prejudice associated with the volume of transcripts and documents already generated.


The Master requested a signed authority relating to the first order, indicated that only the second order was recognised, and postponed further hearings pending a ruling. The Master then issued a ruling that treated the first order as false, found the enquiry based on it to have been unauthorised and invalid, and stated that any aggrieved person could bring the decision under review. Subsequent correspondence sought clarity because certain hearing dates had occurred after the second order had been issued and further subpoenas and hearings were conducted pursuant to the second order.


The disputed (or contested) aspect that became central in the review was not whether the first order lacked signature (this was accepted), but whether the Master was justified in declaring the entire enquiry invalid, including the portion conducted after the second order had been issued. The court treated it as common cause that the fifth respondent’s employees testified after the second order had been granted.


The fifth respondent’s involvement was that it joined the matter after its employees had participated in the enquiry. It contended that the enquiry fell to be declared abusive proceedings and sought to impugn specific evidence. It also alleged, on the basis of certain email communications that later came to its attention, that the applicants had considered the absence of signature on the first order to be significant. The court treated that documentation as not materially significant to the resolution of the review, particularly where the Master, despite having access to the information, did not oppose the review.


Legal Issues


The central legal questions the court was required to determine were whether the Master’s decision declaring “all the enquiries” into the affairs of the liquidated company invalid and of no force and effect was reviewable and liable to be set aside, and if so, what substituted decision should be made.


The dispute primarily concerned the application of legal standards of review to a set of largely common-cause facts about the sequence and form of the Master’s authorising orders and the hearing dates. It also raised a question of law/power, namely whether the Master had the authority to make a ruling declaring the enquiry invalid.


A further issue concerned the participation of the fifth respondent and whether it properly fell within the category of an “aggrieved” person for purposes of the applicable form of review referenced in the judgment, as well as the relevance of the material it sought to place before the court.


In addition, costs were in issue, including whether any costs order should be made against the fifth respondent and whether costs should instead be treated as costs in the liquidation.


Court’s Reasoning


The court’s reasoning proceeded from the fact that the Master had issued two orders: an initial stamped but unsigned order, followed by a later stamped and signed “mirror” order. Against that background, the court considered that the Master’s later decision went further than addressing any defect associated with the first order and instead purported to invalidate the entire enquiry, including the portion conducted after the second order was already in existence.


A significant consideration was the practical consequence of invalidating all enquiry days, namely that evidence already led would need to be re-obtained, at substantial cost and inconvenience to witnesses. The court accepted the applicants’ submission that large amounts of evidence had already been gathered before the Master’s decision and that the enquiry had proceeded without contemporaneous complaints by witnesses regarding its validity. The court treated the Master’s approach as unreasonable in circumstances where, on the facts before it, hearings conducted after the second order were held when a valid authorisation existed.


In relation to the fifth respondent, the court noted that it was common cause that the fifth respondent’s witnesses testified after the second order was granted, meaning that there was a valid order in place at the time those witnesses gave evidence. The court also considered that the fifth respondent had previously sought to interdict the enquiry, but the proceedings were settled on the basis that the fifth respondent would provide the information sought. The court was unpersuaded by the fifth respondent’s later claim of unawareness of alleged invalidity, particularly given the timing of the second order and the settlement.


The court expressed difficulty in understanding the fifth respondent’s procedural posture, particularly where it appeared to advance material akin to that of an amicus curiae despite having intervened as a party. The court emphasised that the documentation the fifth respondent sought to rely upon was in the Master’s possession, and the Master nonetheless elected not to oppose the review. The court further noted that the Master was obliged to file the review record, and that the fifth respondent’s documentation did not assist the court in resolving the central questions.


The court held that the Master failed to consider relevant facts, including the costs consequences of holding enquiries, and highlighted that the Master provided no reasons for invalidating the enquiry in the manner done. The court also pointed to the internal tension in the Master’s position: on the one hand declaring the enquiry invalid, while on the other indicating that the applicants were at liberty to proceed with further enquiries under the second order. The court treated review standards as requiring that the decision be rationally structured and objectively capable of furthering the purpose for which the power was given, and considered the decision susceptible to review where there was a disproportionality between adverse and beneficial consequences and less restrictive means existed to achieve the purpose.


Crucially, the court reasoned that the Master did not have the power to rule on the validity of enquiry proceedings in the way purported, describing the Master’s act in substance as a declarator. The court stated that the Master had no statutory or common-law power to make a ruling on the invalidity of the enquiry proceedings, even though the Master initially authorised the proceedings, and that the Master did not have an oversight role in how the enquiry was to be conducted.


The court also queried, on the facts, how the fifth respondent could be “aggrieved” for purposes of this form of review, referring to the formulation that a person is aggrieved if statutory rights are affected or if they are deprived of an advantage to which they are legally entitled.


On costs, the court accepted that the application was triggered by the Master’s conduct and decision-making. Although the applicants sought a costs order against the fifth respondent, the court declined to grant such an order in the absence of further evidence, emphasising the discretionary and fairness-based nature of costs awards, and concluded that the costs were better treated as costs in the liquidation.


Outcome and Relief


The court reviewed and set aside the Master’s decision that all enquiries into the affairs of the liquidated company were invalid and of no force and effect. The decision was substituted with a decision that the second part of the enquiry into the affairs of the liquidated company was declared valid.


The court ordered that the costs of and incidental to the application, including the fees of senior counsel where employed, would be costs in the liquidation of the liquidated company on the party-and-party scale, as taxed or agreed. The court did not grant a costs order against the fifth respondent.


Cases Cited


Carephone (Pty) Ltd v Marcus N.O. 1998 (11) BLLR 1093 (LAC)


De Hart v Klopper and Botha 1969 (2) SA 91 (T)


Fripp v Gibbon & Co 1913 AD 354


Intercontinental Exports (Pty) Ltd v Fowles 1999 (2) SA 1045 (SCA)


S v Manamela 2000 (3) SA 1 (CC)


Legislation Cited


Companies Act 71 of 2008, sections 417 and 418


Companies Act 61 of 1973, sections 417 and 418


Insolvency Act 24 of 1936, section 151


Promotion of Administrative Justice Act 3 of 2000


Rules of Court Cited


No specific rule number was cited in the judgment. The court referred generally to the Master’s obligation to submit the review record “in terms of the court rules”.


Held


The court held that the Master’s decision declaring the entire enquiry invalid was reviewable and fell to be set aside. The court found that the decision was not supported by reasons, did not reflect proper consideration of relevant consequences such as costs and inconvenience, and was inconsistent in simultaneously invalidating the enquiry while indicating that further enquiries could proceed under the second order.


The court further held that the Master lacked the power to rule on the validity or invalidity of the enquiry proceedings in the manner purported, and that the Master’s act was effectively a declarator. The court substituted the Master’s decision with a finding that the portion of the enquiry conducted after the signed authorisation (the “second part”) was valid.


On costs, the court held that a costs order against the fifth respondent was not warranted on the material before it and exercised its discretion to award costs as costs in the liquidation.


LEGAL PRINCIPLES


The judgment applied the principle that reviewable administrative action must be rationally structured and objectively capable of furthering the purpose for which the power was conferred. A decision may fall to be reviewed where there is a disproportionality between adverse and beneficial consequences and where less restrictive means exist to achieve the decision-maker’s purpose, particularly where substantial prejudice would result from an overbroad outcome.


The judgment also applied the principle that the scope of a public official’s powers is bounded by law, and that absent statutory or common-law authority, the official cannot competently make a binding ruling of the kind purported. In that context, the court treated the Master as lacking an oversight role regarding the conduct of the enquiry and lacking the power to “rule” on the enquiry’s validity as the Master attempted to do.


On standing as an “aggrieved” person in this species of review, the judgment reiterated that a person is aggrieved if statutory rights are affected or if the person is deprived of an advantage to which they are legally entitled.


On costs, the judgment applied the discretionary principle that costs awards are determined by fairness in light of the circumstances, the conduct of the parties, and other relevant factors, and that no rigid rule applies absent exceptional circumstances.

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[2023] ZAWCHC 188
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Du Plessis and Another v Master of the High Court, (Cape Town) and Others - Reasons (12024/2022) [2023] ZAWCHC 188 (4 August 2023)

IN THE HIGH COURT OF
SOUTH AFRICA
(WESTERN CAPE
DIVISION, CAPE TOWN)
Case Number: 12024 /
2022
In
the matter between:
JOHANNES
HENDRICUS DU PLESSIS
First
Applicant
AYESHA
MAHOMED AYOB
Second
Applicant
and
THE
MASTER OF THE HIGH COURT, (CAPE TOWN)
First
Respondent
HEIN
VOGEL
Second
Respondent
ALAN
RICHARD NEWTON N.O.
Third
Respondent
CRATOS
CAPITAL (PTY) LTD
Fourth
Respondent
JSE
LIMITED
Fifth
Respondent
Coram:   Wille,
J
Heard:   25
July 2023
Order:   28
July 2023
Reasons:   4
August 2023
REASONS
WILLE,
J:
Introduction
:
[1]
The applicants sought a review of a decision made by the first
respondent.  This review was
chartered regarding the court rules
and specific sections of two pieces of intervening legislation.
[1]
Involved in this application was a dispute about the validity
of a portion of an insolvency enquiry into the affairs of a
company
that was liquidated.
[2]
[2]
The first respondent decided that the entire enquiry was invalid and
of no force and effect.
[3]
This decision was made by the first respondent several months ago.
[4]
The applicants wanted this decision to be set aside and
substituted by a decision to the effect that the enquiry be regarded

as valid and properly convened for a specified period only.
[5]
I agreed.
[3]
The first and second respondents took no part in these proceedings
and did not oppose the relief
sought by the applicants.  This
even though the second respondent complained to the first respondent,
which resulted in the
decision being taken by the first respondent.
The third respondent was the ‘commissioner’
appointed by the first
respondent to conduct the enquiry into the
affairs of the liquidated company.  Similarly, the third
respondent does not oppose
the relief sought in the application. The
fourth respondent was the only creditor who submitted a claim for
proof against the liquidated
company, and it too, did not oppose the
relief sought in this application.
[4]
The fifth respondent was a party whose employees participated in the
enquiry into the affairs
of the liquidated company.  The fifth
respondent was not an original party to the application but was
subsequently granted
leave to join the proceedings.  The
averments by the fifth respondent were to the effect that the enquiry
into the affairs
of the liquidated company fell to declared abusive
proceedings and that specific evidence tendered fell to be set
aside.
[6]
[5]
After some consideration, I granted an order in the following terms,
namely: (a) that the
decision of the first
respondent that all the enquiries held into the affairs of the
liquidated company were invalid and of no force
and effect, be
reviewed and set aside: (b) that the decision was substituted with a
decision that the second part of the enquiry
into the affairs of the
liquidated company was declared valid and, (c) that the costs of and
incidental to this application (including
the fees of senior counsel,
where so employed) were ordered to be costs in the “liquidation”
of the liquidated company
(on the scale as between party and party)
as taxed or agreed.
Overview:
[6]
The principal business activities of the fourth respondent are
connected to the trading of
equities
listed by the fifth
respondent, who was a trading member of the fifth respondent.
To trade, the fourth respondent, among other
things, concluded a
clearing agreement with a registered deposit-taking institution. In
terms of this agreement, it was agreed
that the fourth respondent
would be able to trade with instruments known as ‘
futures’.
The deposit-taking institution would clear these future
trades as a clearing member for the fourth respondent so that the
fourth
respondent could trade on the fifth respondent’s
platform.  In summary, the fourth respondent would purchase
various
derivative items, including all ‘
futures
’
on behalf of its various clients.  One of these clients was the
liquidated company represented by the second respondent.
Thus, as
defined by the fifth respondent’s trading rules, the liquidated
company was a client of the fourth respondent.
[7]
More than two years ago, the liquidated company was finally placed
under a winding-up order because
it was indebted to the fourth
respondent.
[7]
After that, the
fourth respondent convened an enquiry in which the third respondent
was appointed as the ‘commissioner’
of the enquiry.
Several hearings occurred after that from time to time and were held
at differing locations.
[8]
[8]
During this time
, the second respondent
preferred a complaint against the applicants and questioned the
legality of the enquiry proceedings.
The first respondent
dismissed this complaint which did not feature in this review
application.  During this enquiry, a witness
confirmed that the
liquidated company was the
alter ego
of the second respondent
and was the party responsible for its trading and business
activities.  This was subsequently also
corroborated by two
other witnesses to the enquiry.
[9]
Moreover, the evidence at the enquiry evinced that the second
respondent preferred this structure
to curtail and limit the risk
attached to trading in ‘
futures’
with the result
that the liquidated company could not fund the subsequent margin
calls causing enormous losses to the fourth respondent.
The
applicants contended for the position that fraud was committed with
the assistance of the second respondent by using
discrete legal
entities to avoid payment of the losses sustained by the liquidated
company.  I made no findings in this connection.
Chronology:
[10]
The first applicant received the first order from the first
respondent in terms of which the applicants were
authorized to
conduct an enquiry into the affairs of the liquidated company.
[9]
This first order had affixed to it an official stamp of the
first respondent.  It was however not signed by the first

respondent.  No proper explanation was tendered for this, and
this remains unexplained on the papers.
[11]
During this time, we were all subject to restrictions imposed by the
then-raging pandemic.  Accordingly,
the applicants did not
consider the lack of signature significant.  Thus, the enquiry
proceeded, and the second respondent
gave evidence.  At no time
was any objection raised by any witnesses concerning the legality of
the proceedings.  After
that, the first applicant received a
further
mirror
order from the first respondent, which was stamped and signed by the
first respondent.
[10]
[12]
Following this, the second respondent addressed a letter to the first
respondent, wherein he made unfortunate
allegations about the
enquiry, the applicants, and the applicants’ legal
representatives (including, regrettably, the commissioner).
[11]
After that, the second respondent addressed a further letter to
the first respondent, wherein he sought to remove the applicants
as
liquidators.  Further, a demand was made to the first respondent
to declare the entire enquiry illegal, null and void.
[13]
This prompted a response from the applicants shortly after that.  The
following was accentuated: (a)
at no stage was any objection raised
by any party who gave evidence on the various dates of the enquiry as
to the validity of the
proceedings; (b) that the applicants believed
that the enquiry had been adequately constituted; (c) that in the
event of such belief
being incorrect, they requested condonation for
the hearing dates before the receipt of the second order and, (d)
that the transcript
of the enquiry to date was voluminous excluding
the documents received from the various witnesses and thus they were
prejudiced
as to the costs thereof.
[14]
The first respondent then communicated with the applicants and
required them to provide the first respondent
with a signed authority
concerning the first order.  According to the first respondent
the only authority for the enquiry
that the first respondent was
aware of concerned the second order.  All these ‘complaints’
were technical in nature.
[15]
The first respondent
then ordered that
pending any ruling by the first respondent, the enquiry to be held
going forward was postponed
sine die
.  After that, the
applicants received a ‘ruling’ from the first respondent
accentuating the following: (a) that
the thrust of the complaint made
by the second respondent was made against the ‘commissioner’
and not the applicants;
(b) that the first order was false and, (c)
that the correct order was the second order; (d) that the enquiry
based on the first
order was not authorized and therefore invalid;
(e) that this finding of invalidity did not mean that the second
respondent could
not be called to account at a valid enquiry in the
future; (f) that the second respondent had failed to make out any
case for the
removal of the applicants and, (g) any person aggrieved
by the decision may bring it under review.
[16]
Correspondence followed from the applicants’ attorney of
record.  They sought clarity from the
first respondent as
hearings were held before the second order was issued.  After
that, all the subpoenas and further hearings
were held regarding the
second order.  The first respondent then ‘ruled’
that the entire enquiry was invalid,
but this notwithstanding,
further hearings could occur regarding the second order.  Herein
lies the rub.
Consideration:
[17]
The applicants submitted that the decision by the first respondent to
declare all the days on which the enquiry
was conducted after the
granting of the second order was without any merit and was
unreasonable.  I agreed.  The applicants
accentuated that
vast amounts of evidence had already been amassed prior to the
decision and that the enquiry had proceeded without
any complaint
from any of the parties.  The decision by the first respondent
meant that this evidence fell to be re-obtained
thereby further
inconveniencing witnesses to provide the same evidence as they had
previously attested to.  In addition, the
costs of re-hearing
such evidence would be substantial notwithstanding the obvious
inconvenience to the witnesses.
[18]
It was contended that the first respondent should have found that all
the days of the hearing after the grant
of the second order were
valid and that the evidence taken thereat was valid and did not need
to be repeated.  The applicants
requested that the decision
should be set aside and substituted with an order that the hearing
dates of the enquiry after the second
order were valid and lawful and
that all evidence obtained from any witnesses after the grant of the
second order was valid and
lawful.  Again, I agreed.
[19]
Passing now to a consideration of the position adopted by the fifth
respondent.  It is common cause
that the witnesses connected to
the fifth respondent testified at the enquiry after the grant of the
second order.  Thus,
it was argued that there was a valid order
in place at the time that the employees of the fifth respondent gave
evidence at the
enquiry.  Once again, I agreed.
[20]
The fifth respondent also sought to interdict the enquiry from
proceeding.  These proceedings were settled
because the fifth
respondent acceded to provide the applicants with the relevant
information they sought.  Unmoved, the fifth
respondent now
alleges that it was unaware of the alleged invalidity of the enquiry.
This bears some scrutiny.  I say
this because the second
order was granted about two months before the witnesses connected to
the fifth respondent testified.
In addition, the fifth
respondent’s employees had already supplied the information to
the applicants (in terms of the settlement
agreement) before the
first respondent had made the decision. sought to be reviewed and set
aside.
[21]
The fifth respondent embarks along a path of being a friend of the
court in an endeavor to place information
before the court relating
to a series of emails between the applicants and the first respondent
which have since come to the attention
of the fifth respondent.  The
relief sought by the applicants is not opposed by the fifth
respondent.  The fifth respondent
alleges that the applicants
did indeed consider the absence of a signature on the first order to
be of significance and importance.
[22]
The status position of the fifth respondent was challenging to
understand.  I say this because an
amicus curiae's
standing differs entirely from a party becoming a respondent due to
its intervention.  Moreover, the information furnished
by the
fifth respondent was in the possession of the first respondent, and
despite having such documentation, the latter elected
not to oppose
this application.  Put another way, had the first respondent
considered the documentation relied upon by the
fifth respondent to
have been of importance, one would have expected the first respondent
to have made such documentation available
to the court.  I say
this because the first respondent was obliged to have submitted the
review record in terms of the court
rules.  Notably, the fifth
respondent contended that they were not provided with a copy of the
review record supplied by the
first respondent.  This, despite
the index to the review record having been timeously filed on the
fifth respondent’s
attorneys of record.  The documentation
relied upon by the fifth respondent was of no material significance,
nor did it assist
the court.
[23]
Undoubtedly, the first respondent failed to consider all the relevant
facts, including the costs of holding
the enquiries.  Most
importantly, the first respondent provided no reasons for the
‘invalid’ enquiry.  Yet,
simultaneously, the first
respondent said that the applicants were at liberty to proceed with
further enquiries under the auspices
of the second order.  It
must be so that the decision by the first respondent implies a
decision that is structured rationally,
which must be objectively
capable of furthering the purpose for which the power was given and
for which the decision was purportedly
taken.
[12]
Put another way, the decision by the first respondent falls to be
reviewed on the grounds of a ‘disproportionality’
between
the adverse and beneficial consequences of the action, and the
existence of less restrictive means to achieve the purpose
for which
the action was taken.
[13]
In addition, the
first
respondent did not have the power to make a ruling concerning the
order relating to the invalidity of the enquiry.
[14]
[24]
Thus, in effect, the first respondent only made a declarator.  This
was then the subject of review strictly
following the relevant
provisions of the Insolvency Act.
[15]
Put another way, the first respondent had no statutory or
common law power to rule on the validity of enquiry proceedings,
albeit
the
first respondent initially authorised these proceedings.
Thus,
it must be so that the first respondent could not have legally made
the invalidity ruling.
The
first respondent does not have an oversight role in how the enquiry
is to be conducted.
[25]
Finally, it was challenging to understand how the fifth respondent
fell into the category of an aggrieved
person in these
circumstances.  A person is
aggrieved
for the purposes of this species of review if any statutory rights
are affected or if he or she is deprived of some advantage to
which
he or she is legally entitled.
[16]
Costs:
[26]
Despite the allegations levelled against the first respondent coupled
with the decision made by the first
respondent in these
circumstances, the first respondent nevertheless elected not to deny
such allegations or to oppose the relief
sought by the applicants.
[27]
I mention this because the applicants requested a costs order to be
levied against the fifth respondent.
I did not see it this
way.  Whilst I have some strong suspicions about the conduct of
the fifth respondent, no costs order
falls to be levelled against the
fifth respondent, absent further evidence.  I say this because
the application was undoubtedly
triggered in this matter due to the
conduct of the first respondent.  It is so that when awarding
costs, a court has a discretion,
which it must exercise judiciously
and after due consideration of the salient facts of each case at that
moment.  The decision
a court takes is a matter of fairness to
both sides.
[17]
[28]
The court is expected to take into consideration the peculiar
circumstances of each case, carefully weighing
the issues in each
case, the conduct of the parties as well as any other circumstances
which may have a bearing on the issue of
costs and then make such an
order as to costs as would be fair in the discretion of the court.
[29]
No hard and fast rules have been set for compliance and conformity by
the court unless there are exceptional
circumstances.
[18]
In all the circumstances, a costs order against the fifth respondent
was not warranted, and the costs were better placed
to be costs in
the liquidation proceedings.
[30]
These were the reasons for my order and the costs attached to it.
E
D WILLE
(Cape
Town)
[1]
The Promotion of Administration of Justice Act, 3 of 2000 and
the
Insolvency Act, 24 of 1936
[2]
Cygne
Bleu
(Pty) Limited (the liquidated company).
[3]
That had commenced with effect from 21 April 2021 to 21 October 2021
[4]
The decision was made on 21 January 2022 (the “decision”).
[5]
From 30 April 2021 up to and including 21 October 2021 (the “second
part” of the enquiry).
[6]
The evidence tendered at the enquiry on 13, 14 and 15 July 2022.
[7]
This was in March 2021. The final winding-up order was granted on 5
February 2021.
[8]
During the period 21 April 2021 to 21 October 2021.
[9]
In terms of sections 417 and 418 of the Companies Act, 71 of 2008
(the “first” order).
[10]
The “second” order dated 30 April 2021.
[11]
On 14 October 2021.
[12]
S
v Manamela
2000(3) SA1 CC.
[13]
Carephone
(Pty) Ltd Marcus N.O
.
1998 (11) BLLR 1093 (LAC).
[14]
In
terms
of sections 417 and 418 of the 1973
Companies Act.
[15
]
In terms of
section 151
of the
Insolvency Act, 24 of 1936
.
[16]
De Hart
v Klopper and Botha
1969 (2) SA 91 (T) 100.
[17]
Intercontinental
Exports (Pty) Ltd v Fowles
1999
(2) SA 1045
(SCA)
at 1055 F- G.
[18]
Fripp v
Gibbon & Co
1913 AD 354
at 364.

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