De Wet & Others v Opis Advisory (Pty) Limited & Others (2020-14081) [2024] ZAGPJHC 174 (27 February 2024)

De Wet & Others v Opis Advisory (Pty) Limited & Others (2020-14081) [2024] ZAGPJHC 174 (27 February 2024)

The court found that the payment of R3 million by Bapo Freight after the commencement of liquidation proceedings was a disposition falling squarely within the ambit of section 341(2) of the Companies Act 61 of 1973. The respondents' version that the funds were ring-fenced and not intended to become Bapo Freight's property was rejected as far-fetched and unsupported by evidence. The payment was not made to a creditor but to the business rescue practitioner and his company, and no valid agreement or ring-fencing was established. Even if the payment was considered post-commencement finance, it would rank as a claim against the liquidated company and not entitle the respondents to retain the...

Citation
[2024] ZAGPJHC 174
Parties
Applicant: Gert Louwrens Steyn De Wet N O; Applicant: Caroline Mmakgokolo Ledwaba N O; Applicant: Bapo Freight & Logistics (Pty) Limited (in liquidation); Respondent: Opis Advisory (Pty) Limited; Respondent: Sono, Sipho N O; Respondent: Western Platinum (RF) Limited; Respondent: Eastern Platinum (RF) Limited; Respondent: The Master of the High Court, Mahikeng
Court
South Gauteng High Court, Johannesburg
Jurisdiction
South Africa
Judgment Date
27 February 2024
Case Number
2020-14081
Procedural Posture
Civil Application / Final Judgment
Outcome
Application granted. The payment of R3 million is declared void and must be repaid to the applicants. Costs awarded against the first, second, third, and fourth respondents, jointly and severally.
Judges
Adams
Legal Topics
Business Rescue, Void Disposition, Companies Act Section 341, Post Commencement Finance, Liquidation Proceedings
Commercial and Corporate Civil Procedure Business Rescue Void Disposition Companies Act Section 341 Post Commencement Finance Liquidation Proceedings

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Parties

Gert Louwrens Steyn De Wet N O

Applicant

Caroline Mmakgokolo Ledwaba N O

Applicant

Bapo Freight & Logistics (Pty) Limited (in liquidation)

Applicant

Opis Advisory (Pty) Limited

Respondent

Sono, Sipho N O

Respondent

Western Platinum (RF) Limited

Respondent

Eastern Platinum (RF) Limited

Respondent

The Master of the High Court, Mahikeng

Respondent

Procedural Posture

Civil Application / Final Judgment

Legal Issues

  1. 1 Whether the payment of R3 million by Bapo Freight after the commencement of liquidation proceedings constitutes a void disposition under section 341(2) of the Companies Act.
  2. 2 Whether the respondents are entitled to retain the R3 million or must repay it to the liquidators.
  3. 3 Whether the payment qualifies as post-commencement finance and how it ranks in liquidation.

Ratio Decidendi

The court found that the payment of R3 million by Bapo Freight after the commencement of liquidation proceedings was a disposition falling squarely within the ambit of section 341(2) of the Companies Act 61 of 1973. The respondents' version that the funds were ring-fenced and not intended to become Bapo Freight's property was rejected as far-fetched and unsupported by evidence. The payment was not made to a creditor but to the business rescue practitioner and his company, and no valid agreement or ring-fencing was established. Even if the payment was considered post-commencement finance, it would rank as a claim against the liquidated company and not entitle the respondents to retain the...

Court Disposition

Application granted. The payment of R3 million is declared void and must be repaid to the applicants. Costs awarded against the first, second, third, and fourth respondents, jointly and severally.

Orders

  • The payment of R3 million made by Bapo Freight & Logistics (Pty) Limited (in liquidation) on 28 June 2019 to Opis Advisory (Pty) Limited and/or Mr Sono is declared void in terms of section 341(2) of the Companies Act 61 of 1973.
  • Opis Advisory (Pty) Limited and/or Mr Sono is directed to pay to the applicants the amount of R3 million, together with interest at the applicable legal rate from 28 June 2019 to date of final payment.