Cecil N.O and Others v Bertulis and Another (04024/2014) [2014] ZAGPJHC 333 (11 March 2014)

Cecil N.O and Others v Bertulis and Another (04024/2014) [2014] ZAGPJHC 333 (11 March 2014)

The court found that the applicants, as liquidators, established a prima facie case that the payments made by the insolvent company for the insurance policy were potentially impeachable dispositions without value under the Insolvency Act. The urgency was justified as the proceeds had only recently been paid into the first respondent's account, and there was a real risk of dissipation to the prejudice of creditors. The first respondent failed to provide evidence of an employment contract or entitlement to the funds as pension benefits. The suspicious timing of the account opening and payment further supported the applicants' apprehension of irreparable loss. The requirements for an urgent...

Citation
[2014] ZAGPJHC 333
Parties
Applicant: Gavin Cecil Gainsford N.O.; Applicant: Zeenath Kajee N.O.; Applicant: Christopher Kgashane Monyela N.O.; Applicant: Jacques Andre Fisher N.O.; Applicant: Sandra Joan McKenzie N.O.; Applicant: Mmabatho Shirley Motimele N.O.; Respondent: Andris Dzintars Bertulis; Respondent: Capitec Bank Limited
Court
South Gauteng High Court, Johannesburg
Jurisdiction
South Africa
Judgment Date
11 March 2014
Case Number
04024/2014
Procedural Posture
Urgent Application / Final Interdict Application Following Urgent Interim Relief
Outcome
Application upheld; urgent interdict granted restraining respondents from dealing with the funds pending action.
Judges
Makume
Legal Topics
Interdict Pendente Lite, Insolvency Act Sections 26 to 31, Liquidation Proceedings, Disposition Without Value, Urgent Application Procedure
Civil Procedure Banking and Finance Interdict Pendente Lite Insolvency Act Sections 26 to 31 Liquidation Proceedings Disposition Without Value Urgent Application Procedure

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Parties

Gavin Cecil Gainsford N.O.

Applicant

Zeenath Kajee N.O.

Applicant

Christopher Kgashane Monyela N.O.

Applicant

Jacques Andre Fisher N.O.

Applicant

Sandra Joan McKenzie N.O.

Applicant

Mmabatho Shirley Motimele N.O.

Applicant

Andris Dzintars Bertulis

Respondent

Capitec Bank Limited

Respondent

Procedural Posture

Urgent Application / Final Interdict Application Following Urgent Interim Relief

Legal Issues

  1. 1 Whether the payment of insurance policy premiums by the insolvent company constitutes a disposition without value under the Insolvency Act.
  2. 2 Whether the proceeds paid into the first respondent's bank account are impeachable and recoverable by the liquidators.
  3. 3 Whether the applicants are entitled to an urgent interdict restraining the first respondent and Capitec Bank from dealing with the funds pending final determination.

Ratio Decidendi

The court found that the applicants, as liquidators, established a prima facie case that the payments made by the insolvent company for the insurance policy were potentially impeachable dispositions without value under the Insolvency Act. The urgency was justified as the proceeds had only recently been paid into the first respondent's account, and there was a real risk of dissipation to the prejudice of creditors. The first respondent failed to provide evidence of an employment contract or entitlement to the funds as pension benefits. The suspicious timing of the account opening and payment further supported the applicants' apprehension of irreparable loss. The requirements for an urgent...

Court Disposition

Application upheld; urgent interdict granted restraining respondents from dealing with the funds pending action.

Orders

  • The first respondent is interdicted from ceding, pledging, alienating, disposing, using or encumbering the monies in bank account number 13...... at Capitec Bank pending final determination of an action to be instituted within 45 days.
  • The second respondent (Capitec Bank) is interdicted from permitting withdrawal, disposal or use of the funds in the account.