Bekker NO and Others v Weiss NO and Another (M.41/2014) [2014] ZANWHC 40 (9 October 2014)

Bekker NO and Others v Weiss NO and Another (M.41/2014) [2014] ZANWHC 40 (9 October 2014)

The court found that the payments made by Ditona to the Weiss Seuns Trust on 21 October 2010 were void under section 341(2) of the Companies Act 61 of 1973, as they were made after the commencement of winding up, which is deemed to have started on 20 October 2010 when KLK presented its application. The trust did not seek validation of the payments, and the circumstances indicated that the payments were not made in the ordinary course of business but rather to secure a preference for the trust over other creditors. The trust was an ordinary concurrent creditor and received an advantage it would not have otherwise enjoyed. The court exercised its discretion and refused to validate the...

Citation
[2014] ZANWHC 40
Parties
Applicant: Jacobus Nicolaas Bekker N.O; Applicant: Clifford Thabang Maredi N.O; Applicant: Chavonnes Badenhorst St’Clair Cooper N.O; Respondent: Werner Alex Weiss N.O; Respondent: Susanna Margaretha Weiss N.O
Court
North West High Court, Mafikeng
Jurisdiction
South Africa
Judgment Date
9 October 2014
Case Number
M.41/2014
Procedural Posture
Civil Application / First Instance Judgment
Outcome
Application granted. The Weiss Seuns Trust is ordered to pay the applicants the amount of R133,281.64, with interest and costs.
Judges
GUTTA
Legal Topics
Companies Act 1973, Void Dispositions, Liquidation Proceedings, Concursus Creditorum, Validation of Dispositions
Commercial and Corporate Civil Procedure Companies Act 1973 Void Dispositions Liquidation Proceedings Concursus Creditorum Validation of Dispositions

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 1
Sign in to unlock

Parties

Jacobus Nicolaas Bekker N.O

Applicant

Clifford Thabang Maredi N.O

Applicant

Chavonnes Badenhorst St’Clair Cooper N.O

Applicant

Werner Alex Weiss N.O

Respondent

Susanna Margaretha Weiss N.O

Respondent

Procedural Posture

Civil Application / First Instance Judgment

Legal Issues

  1. 1 Whether payments made by Ditona Construction (Pty) Ltd to the Weiss Seuns Trust after the commencement of winding up are void under section 341(2) of the Companies Act 61 of 1973.
  2. 2 Whether the payments should be validated by the court despite being void.
  3. 3 Whether the payments were made in the ordinary course of business or constituted a preference to a particular creditor.

Ratio Decidendi

The court found that the payments made by Ditona to the Weiss Seuns Trust on 21 October 2010 were void under section 341(2) of the Companies Act 61 of 1973, as they were made after the commencement of winding up, which is deemed to have started on 20 October 2010 when KLK presented its application. The trust did not seek validation of the payments, and the circumstances indicated that the payments were not made in the ordinary course of business but rather to secure a preference for the trust over other creditors. The trust was an ordinary concurrent creditor and received an advantage it would not have otherwise enjoyed. The court exercised its discretion and refused to validate the...

Court Disposition

Application granted. The Weiss Seuns Trust is ordered to pay the applicants the amount of R133,281.64, with interest and costs.

Orders

  • The Weiss Seuns Trust must pay the applicants R133,281.64.
  • Interest on the amount is payable from 20 September 2013 to date of payment at 15.5% per annum until 31 July 2014, and at 9% per annum from 1 August 2014.