Bushveld Chrome Resources (Pty) Limited and Another v Niemcor Africa (Pty) Limited (73169/2013) [2014] ZAGPPHC 775 (10 October 2014)

Bushveld Chrome Resources (Pty) Limited and Another v Niemcor Africa (Pty) Limited (73169/2013) [2014] ZAGPPHC 775 (10 October 2014)

The court found that the sale and transfer of shares in Niemcor Brace by Niemcor Africa to Bushveld Chrome occurred after the date of liquidation, as the registration of the shares in the name of the transferee was completed only after liquidation. The court relied on established case law that the disposition of shares is a process completed by registration, not merely by consensus or cession. However, the applicants raised a new legal argument based on Botha v Fick, asserting that cession and consensus alone effect transfer of shares. The court acknowledged that this point was not previously argued but considered it, noting that there is a reasonable prospect another court may interpret...

Citation
[2014] ZAGPPHC 775
Parties
Applicant: Bushveld Chrome Resources (Pty) Limited; Applicant: Niemcor Brace (Pty) Limited; Respondent: Niemcor Africa (Pty) Limited (in liquidation)
Court
North Gauteng High Court, Pretoria
Jurisdiction
South Africa
Judgment Date
10 October 2014
Case Number
73169/2013
Procedural Posture
Leave to Appeal / Application for Leave to Appeal
Outcome
Leave to appeal to the Supreme Court of Appeal is granted against the whole of the judgment and all orders made therein.
Judges
Basson
Legal Topics
Company Liquidation, Disposition of Shares, Leave to Appeal, Companies Act, Insolvency Act
Commercial and Corporate Civil Procedure Company Liquidation Disposition of Shares Leave to Appeal Companies Act Insolvency Act

Case Brief

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Parties

Bushveld Chrome Resources (Pty) Limited

Applicant

Niemcor Brace (Pty) Limited

Applicant

Niemcor Africa (Pty) Limited (in liquidation)

Respondent

Procedural Posture

Leave to Appeal / Application for Leave to Appeal

Legal Issues

  1. 1 Whether the disposition of shares by Niemcor Africa (Pty) Limited occurred before or after the commencement of its liquidation within the meaning of the Companies Act and Insolvency Act.
  2. 2 Whether the transfer of shares is completed upon consensus and cession or only upon registration in the company’s members register.
  3. 3 Whether there is a reasonable prospect that another court may interpret the law differently regarding the timing of disposition of shares.

Ratio Decidendi

The court found that the sale and transfer of shares in Niemcor Brace by Niemcor Africa to Bushveld Chrome occurred after the date of liquidation, as the registration of the shares in the name of the transferee was completed only after liquidation. The court relied on established case law that the disposition of shares is a process completed by registration, not merely by consensus or cession. However, the applicants raised a new legal argument based on Botha v Fick, asserting that cession and consensus alone effect transfer of shares. The court acknowledged that this point was not previously argued but considered it, noting that there is a reasonable prospect another court may interpret...

Court Disposition

Leave to appeal to the Supreme Court of Appeal is granted against the whole of the judgment and all orders made therein.

Orders

  • Application for leave to appeal to the Supreme Court of Appeal is granted against the whole of the judgment and all orders made therein.
  • Costs of this application to be costs in the cause of the appeal.