Afrisam (South Africa) (Proprietary) Limited v Maleth Investment Fund (Proprietary) Limited (651/2018) [2019] ZASCA 139 (1 October 2019)

Afrisam (South Africa) (Proprietary) Limited v Maleth Investment Fund (Proprietary) Limited (651/2018) [2019] ZASCA 139 (1 October 2019)

The Supreme Court of Appeal held that the intervening voluntary winding-up did not extinguish the pending application for compulsory winding-up. However, in terms of section 340(2)(a) of the Companies Act 61 of 1973, where a compulsory winding-up supersedes a voluntary winding-up, the effective date for impeachable dispositions is the date of registration of the special resolution for voluntary winding-up, not the date of presentation of the compulsory winding-up application. The court found that the December 2015 order should have reflected 12 March 2014 as the effective date, not 31 October 2013. The court also held that it was not necessary to set aside the voluntary winding-up before...

Citation
[2019] ZASCA 139
Parties
Appellant: Afrisam (South Africa) (Proprietary) Limited; Respondent: Maleth Investment Fund (Proprietary) Limited
Court
Supreme Court of Appeal
Jurisdiction
South Africa
Judgment Date
1 October 2019
Case Number
651/2018
Procedural Posture
Civil Appeal / Appeal From the Gauteng Division of the High Court, Johannesburg
Outcome
Appeal upheld; order of the high court set aside and replaced.
Judges
Navsa, Wallis, Dambuza, Molemela, Mbatha
Legal Topics
Company Winding Up, Creditors Voluntary Liquidation, Compulsory Liquidation, Impeachable Dispositions, Voidable Preferences, Undue Preferences
Commercial and Corporate Civil Procedure Company Winding Up Creditors Voluntary Liquidation Compulsory Liquidation Impeachable Dispositions Voidable Preferences Undue Preferences

Case Brief

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Parties

Afrisam (South Africa) (Proprietary) Limited

Appellant

Maleth Investment Fund (Proprietary) Limited

Respondent

Procedural Posture

Civil Appeal / Appeal From the Gauteng Division of the High Court, Johannesburg

Legal Issues

  1. 1 Whether a pending application for compulsory winding-up is extinguished by an intervening voluntary winding-up.
  2. 2 What is the effective date for the commencement of winding-up for purposes of impeachable dispositions under the Insolvency Act.
  3. 3 Whether the compulsory winding-up order should be rescinded due to lack of notice to interested creditors.

Ratio Decidendi

The Supreme Court of Appeal held that the intervening voluntary winding-up did not extinguish the pending application for compulsory winding-up. However, in terms of section 340(2)(a) of the Companies Act 61 of 1973, where a compulsory winding-up supersedes a voluntary winding-up, the effective date for impeachable dispositions is the date of registration of the special resolution for voluntary winding-up, not the date of presentation of the compulsory winding-up application. The court found that the December 2015 order should have reflected 12 March 2014 as the effective date, not 31 October 2013. The court also held that it was not necessary to set aside the voluntary winding-up before...

Court Disposition

Appeal upheld; order of the high court set aside and replaced.

Orders

  • The appeal is upheld with costs, including the costs of two counsel.
  • Leave is granted to the appellant to intervene in case no 40865/13.