Brandkor Beleggings (Edms) Bpk v Emerald Sky Trading 157 (Edms) Bpk en Anders (72272/2012) [2013] ZAGPPHC 133 (31 May 2013)

Brandkor Beleggings (Edms) Bpk v Emerald Sky Trading 157 (Edms) Bpk en Anders (72272/2012) [2013] ZAGPPHC 133 (31 May 2013)

The application is barred by section 359(2) of the Companies Act 61 of 1973 because the applicant failed to give the required written notice to the liquidators before proceeding. The relevant date for the commencement of liquidation is the date the application was presented to the court, not the date the order was granted. The court order of 3 June 2011 granted the applicant only a personal right to claim transfer of the property, not a real right. The property therefore remained part of the insolvent estate and subject to the concursus creditorum. Even if the application were not barred procedurally, the applicant's claim would not override the rights of creditors in the liquidation.

Citation
[2013] ZAGPPHC 133
Parties
Applicant: Brandkor Beleggings (Edms) Bpk; Respondent: Emerald Sky Trading 157 (Edms) Bpk; Respondent: Melanie Becker N.O.; Respondent: Tanya Oosthuizen N.O.; Respondent: Registrateur van Aktes, Pretoria
Court
North Gauteng High Court, Pretoria
Jurisdiction
South Africa
Judgment Date
31 May 2013
Case Number
72272/2012
Procedural Posture
Urgent Application / Application to Substitute Liquidators as Parties and for Transfer of Immovable Property
Outcome
Application struck from the roll with costs.
Judges
Oosthuizen
Legal Topics
Company Liquidation, Concursus Creditorum, Transfer of Immovable Property, Court Orders Enforcement, Notice to Liquidator
Civil Procedure Land and Property Commercial and Corporate Company Liquidation Concursus Creditorum Transfer of Immovable Property Court Orders Enforcement Notice to Liquidator

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Parties

Brandkor Beleggings (Edms) Bpk

Applicant

Emerald Sky Trading 157 (Edms) Bpk

Respondent

Melanie Becker N.O.

Respondent

Tanya Oosthuizen N.O.

Respondent

Registrateur van Aktes, Pretoria

Respondent

Procedural Posture

Urgent Application / Application to Substitute Liquidators as Parties and for Transfer of Immovable Property

Legal Issues

  1. 1 Whether the application is barred by section 359(2) of the Companies Act 61 of 1973.
  2. 2 Whether the applicant's claim for transfer of the property survives the concursus creditorum.
  3. 3 Whether the court order of 3 June 2011 grants the applicant a real right or only a personal right to transfer.

Ratio Decidendi

The application is barred by section 359(2) of the Companies Act 61 of 1973 because the applicant failed to give the required written notice to the liquidators before proceeding. The relevant date for the commencement of liquidation is the date the application was presented to the court, not the date the order was granted. The court order of 3 June 2011 granted the applicant only a personal right to claim transfer of the property, not a real right. The property therefore remained part of the insolvent estate and subject to the concursus creditorum. Even if the application were not barred procedurally, the applicant's claim would not override the rights of creditors in the liquidation.

Court Disposition

Application struck from the roll with costs.

Orders

  • The application is struck from the roll.
  • The applicant is ordered to pay the costs of the first, second, and third respondents.