CJ Pharmaceuticals Enterprises (Pty) Ltd and Others v Main Road Centurion 30201 CC t/a Albermarle Pharmacy and Another (7909/2020) [2020] ZAGPJHC 353; 2021 (5) SA 246 (GJ) (21 December 2020)

CJ Pharmaceuticals Enterprises (Pty) Ltd and Others v Main Road Centurion 30201 CC t/a Albermarle Pharmacy and Another (7909/2020) [2020] ZAGPJHC 353; 2021 (5) SA 246 (GJ) (21 December 2020)

The court held that the transfer of Main Road's business to Arrie Nel was not void in the absolute sense under section 34(1) of the Insolvency Act, but only void as against creditors for a six-month period, which had expired by 30 May 2020. No applicant instituted proceedings to recover payment during that period, and the application was not for recovery of debt or declaratory relief in respect of such proceedings. The requirements for setting aside the transfer under the actio Pauliana were not met, as there was no evidence of fraudulent intent or collusion. The application for business rescue was dismissed because the business was not owned by Main Road and there was no basis to...

Citation
[2020] ZAGPJHC 353
Parties
Applicant: CJ Pharmaceuticals Enterprises (Pty) Ltd; Applicant: Dis-Chem Distribution (Pty) Ltd; Applicant: The Local Choice (Pty) Ltd; Respondent: Main Road Centurion 30201 CC t/a Albermarle Pharmacy; Respondent: Arrie Nel Pharmacy Group (Pty) Ltd
Court
South Gauteng High Court, Johannesburg
Jurisdiction
South Africa
Judgment Date
21 December 2020
Case Number
7909/2020
Procedural Posture
Civil Application / Judgment
Outcome
Application dismissed with costs.
Judges
JT BoltAR
Legal Topics
Insolvency Act Section 34, Actio Pauliana, Business Rescue, Declaratory Relief, Fraudulent Collusion
Commercial and Corporate Civil Procedure Insolvency Act Section 34 Actio Pauliana Business Rescue Declaratory Relief Fraudulent Collusion

Case Brief

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Parties

CJ Pharmaceuticals Enterprises (Pty) Ltd

Applicant

Dis-Chem Distribution (Pty) Ltd

Applicant

The Local Choice (Pty) Ltd

Applicant

Main Road Centurion 30201 CC t/a Albermarle Pharmacy

Respondent

Arrie Nel Pharmacy Group (Pty) Ltd

Respondent

Procedural Posture

Civil Application / Judgment

Legal Issues

  1. 1 Whether the transfer of Main Road's business to Arrie Nel is void under section 34(1) of the Insolvency Act.
  2. 2 Whether the transfer is void under the common law actio Pauliana due to alleged fraudulent collusion.
  3. 3 Whether Main Road should be placed under business rescue or liquidation.

Ratio Decidendi

The court held that the transfer of Main Road's business to Arrie Nel was not void in the absolute sense under section 34(1) of the Insolvency Act, but only void as against creditors for a six-month period, which had expired by 30 May 2020. No applicant instituted proceedings to recover payment during that period, and the application was not for recovery of debt or declaratory relief in respect of such proceedings. The requirements for setting aside the transfer under the actio Pauliana were not met, as there was no evidence of fraudulent intent or collusion. The application for business rescue was dismissed because the business was not owned by Main Road and there was no basis to...

Court Disposition

Application dismissed with costs.

Orders

  • The application is dismissed with costs on a party to party scale.