Akbur and Another v Button NO and Others (AR529/2016) [2017] ZAKZPHC 68 (15 June 2017)

Akbur and Another v Button NO and Others (AR529/2016) [2017] ZAKZPHC 68 (15 June 2017)

The court found that the applicants failed to establish on admissible evidence that the corporation's liabilities exceeded its assets immediately after each disposition, as required by section 29 of the Insolvency Act. Much of the evidence relied upon was inadmissible hearsay or improperly obtained from a confidential commission of enquiry, and supporting affidavits were filed only in reply. Material disputes of fact existed regarding the identity of the recipients of the payments and the corporation's solvency, which could not be resolved on the papers. The applicants did not seek referral to oral evidence or trial. Accordingly, the application could not succeed, and the appeal was...

Citation
[2017] ZAKZPHC 68
Parties
Appellant: Ashraf Akbur; Appellant: GSC Trading CC; Respondent: Neil David Button N.O.; Respondent: Kurt Robert Knoop N.O.; Respondent: Surendra Naidoo N.O.; Respondent: Ebrahim Aboobaker; Respondent: Moolla N.O.; Respondent: Deon Schaupp N.O.; Respondent: The Master of the High Court of South Africa
Court
Kwazulu-Natal High Court, Pietermaritzburg
Jurisdiction
South Africa
Judgment Date
15 June 2017
Case Number
AR529/2016
Procedural Posture
Civil Appeal / Appeal Against Order of Court a Quo
Outcome
Appeal upheld with costs. Application dismissed with costs.
Judges
Koen, Poyo Dlwati, Bezuidenhout
Legal Topics
Voidable Preference, Insolvency Act Section 29, Motion Proceedings, Hearsay Evidence, Liquidation, Burden of Proof
Civil Procedure Commercial and Corporate Voidable Preference Insolvency Act Section 29 Motion Proceedings Hearsay Evidence Liquidation Burden of Proof

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 5 Authorities cited 9 Party arguments 2 Amounts and remedies 2
Sign in to unlock

Parties

Ashraf Akbur

Appellant

GSC Trading CC

Appellant

Neil David Button N.O.

Respondent

Kurt Robert Knoop N.O.

Respondent

Surendra Naidoo N.O.

Respondent

Ebrahim Aboobaker

Respondent

Moolla N.O.

Respondent

Deon Schaupp N.O.

Respondent

The Master of the High Court of South Africa

Respondent

Procedural Posture

Civil Appeal / Appeal Against Order of Court a Quo

Legal Issues

  1. 1 Whether the dispositions made by the corporation constituted voidable preferences under section 29 of the Insolvency Act.
  2. 2 Whether the applicants established on admissible evidence that the corporation's liabilities exceeded its assets immediately after each disposition.
  3. 3 Whether the payments were made to the first or second respondent and whether joint and several liability was established.

Ratio Decidendi

The court found that the applicants failed to establish on admissible evidence that the corporation's liabilities exceeded its assets immediately after each disposition, as required by section 29 of the Insolvency Act. Much of the evidence relied upon was inadmissible hearsay or improperly obtained from a confidential commission of enquiry, and supporting affidavits were filed only in reply. Material disputes of fact existed regarding the identity of the recipients of the payments and the corporation's solvency, which could not be resolved on the papers. The applicants did not seek referral to oral evidence or trial. Accordingly, the application could not succeed, and the appeal was...

Court Disposition

Appeal upheld with costs. Application dismissed with costs.

Orders

  • The appeal is upheld with costs.
  • The order of the court a quo is set aside and substituted with: 'The application is dismissed with costs.'