Bester NO and Another v National Director of Public Prosecutions, In Re National Director of Public Prosecutions v Kleinhans and Others (198/2011) [2011] ZASCA 234; [2012] 2 All SA 453 (SCA); 2013 (1) SACR 83 (SCA) (30 November 2011)

Bester NO and Another v National Director of Public Prosecutions, In Re National Director of Public Prosecutions v Kleinhans and Others (198/2011) [2011] ZASCA 234; [2012] 2 All SA 453 (SCA); 2013 (1) SACR 83 (SCA) (30 November 2011)

The Supreme Court of Appeal held that section 36(2) of POCA applies where the winding-up application is filed before the restraint order is granted, provided a winding-up order is ultimately made. The timing of the winding-up application, not the granting of the winding-up order, is decisive. The court found that the assets of Aquila Holdings (Pty) Ltd, specifically the 490 shares in Optipharm Healthcare (Pty) Ltd, were excluded from the restraint order because the concursus creditorum was established upon the filing of the winding-up application. The powers of the curator bonis under POCA must yield to those of the liquidator once the winding-up order is granted. The court rejected the...

Citation
[2011] ZASCA 234
Parties
Appellant: Christian Findlay Bester NO; Appellant: Gerard Leonard Paris NO; Respondent: National Director of Public Prosecutions; Defendant: Francois Emil Jacques Kleinhans; Respondent: Hilda Grace Kleinhans; Respondent: Aquila Holdings (Pty) Ltd (in liquidation); Respondent: Finishing Touch Trading 75 (Pty) Ltd t/a Aquila Properties Solutions; Respondent: Rich Rewards Trading 52 (Pty) Ltd t/a Aquila Financial Services; Respondent: Global Pact Trading 73 (Pty) Ltd
Court
Supreme Court of Appeal
Jurisdiction
South Africa
Judgment Date
30 November 2011
Case Number
198/2011
Procedural Posture
Civil Appeal / Appeal From Western Cape High Court, Confirmation of Restraint Order and Intervention Application
Outcome
Appeal upheld. The order of the court below is set aside and replaced with a declaratory order excluding the shares from the restraint order.
Judges
Brand, Maya, Seriti
Legal Topics
Company Liquidation, Restraint Order, Prevention of Organised Crime Act, Concursus Creditorum
Civil Procedure Commercial and Corporate Company Liquidation Restraint Order Prevention of Organised Crime Act Concursus Creditorum

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Parties

Christian Findlay Bester NO

Appellant

Gerard Leonard Paris NO

Appellant

National Director of Public Prosecutions

Respondent

Francois Emil Jacques Kleinhans

Defendant

Hilda Grace Kleinhans

Respondent

Aquila Holdings (Pty) Ltd (in liquidation)

Respondent

Finishing Touch Trading 75 (Pty) Ltd t/a Aquila Properties Solutions

Respondent

Rich Rewards Trading 52 (Pty) Ltd t/a Aquila Financial Services

Respondent

Global Pact Trading 73 (Pty) Ltd

Respondent

Procedural Posture

Civil Appeal / Appeal From Western Cape High Court, Confirmation of Restraint Order and Intervention Application

Legal Issues

  1. 1 What is the effect of a restraint order under section 26 of POCA on the assets of a company in liquidation where the restraint order is made after the presentation of a winding-up application but before the actual winding-up order is granted.
  2. 2 Does section 36(2) of POCA exclude assets from the ambit of a restraint order if the winding-up application precedes the restraint order?

Ratio Decidendi

The Supreme Court of Appeal held that section 36(2) of POCA applies where the winding-up application is filed before the restraint order is granted, provided a winding-up order is ultimately made. The timing of the winding-up application, not the granting of the winding-up order, is decisive. The court found that the assets of Aquila Holdings (Pty) Ltd, specifically the 490 shares in Optipharm Healthcare (Pty) Ltd, were excluded from the restraint order because the concursus creditorum was established upon the filing of the winding-up application. The powers of the curator bonis under POCA must yield to those of the liquidator once the winding-up order is granted. The court rejected the...

Court Disposition

Appeal upheld. The order of the court below is set aside and replaced with a declaratory order excluding the shares from the restraint order.

Orders

  • The appeal is upheld with costs, including the costs of two counsel.
  • The order of the court below is set aside and replaced with the following: (a) The 490 shares in Optipharm Healthcare (Pty) Ltd held by Aquila Holdings (Pty) Ltd (in liquidation) are excluded from the 'Schedule of Known Assets' reflected in annexure 'A' to the provisional restraint order of 3 July 2009, and the...