Fortein N.O. and Another v Roux and Another (1059/2023) [2023] ZAFSHC 311 (7 August 2023)

Fortein N.O. and Another v Roux and Another (1059/2023) [2023] ZAFSHC 311 (7 August 2023)

The court found that although the payment to the first respondent was made from funds due to CRE Stropers CC after the commencement of liquidation, there was no evidence that CRE Stropers itself was complicit or involved in the request for payment. However, the first respondent, by requesting and receiving payment after provisional liquidation, benefited to the detriment of other creditors. The court held that nothing should be allowed to prejudice the rights of other creditors in the concursus creditorum. Therefore, the applicants' claim for repayment of the amount succeeded, and the first respondent was ordered to pay the amount, interest, and costs.

Citation
[2023] ZAFSHC 311
Parties
Applicant: Karen Fortein N.O.; Applicant: Hassen Kajie N.O.; Respondent: Jacobus Cornelius Conraad Roux; Respondent: Master of the High Court, Bloemfontein
Court
Free State High Court, Bloemfontein
Jurisdiction
South Africa
Judgment Date
7 August 2023
Case Number
1059/2023
Procedural Posture
Civil Application / Judgment After Opposed Application
Outcome
Application granted in favour of the applicants; first respondent ordered to pay the claimed amount, interest, and costs.
Judges
Loubser
Legal Topics
Void Disposition, Liquidation, Concursus Creditorum, Preferential Payment, Companies Act, Close Corporations Act
Civil Procedure Commercial and Corporate Void Disposition Liquidation Concursus Creditorum Preferential Payment Companies Act Close Corporations Act

Case Brief

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Parties

Karen Fortein N.O.

Applicant

Hassen Kajie N.O.

Applicant

Jacobus Cornelius Conraad Roux

Respondent

Master of the High Court, Bloemfontein

Respondent

Procedural Posture

Civil Application / Judgment After Opposed Application

Legal Issues

  1. 1 Whether the payment of R107 553.75 to the first respondent constituted a disposition of property by CRE Stropers CC in liquidation.
  2. 2 Whether such disposition is void under section 341(2) of the Companies Act and should be set aside.
  3. 3 Whether the first respondent is liable to repay the amount to the liquidators.

Ratio Decidendi

The court found that although the payment to the first respondent was made from funds due to CRE Stropers CC after the commencement of liquidation, there was no evidence that CRE Stropers itself was complicit or involved in the request for payment. However, the first respondent, by requesting and receiving payment after provisional liquidation, benefited to the detriment of other creditors. The court held that nothing should be allowed to prejudice the rights of other creditors in the concursus creditorum. Therefore, the applicants' claim for repayment of the amount succeeded, and the first respondent was ordered to pay the amount, interest, and costs.

Court Disposition

Application granted in favour of the applicants; first respondent ordered to pay the claimed amount, interest, and costs.

Orders

  • The first respondent is ordered to pay R107 553.75 to the applicants in their capacity as joint liquidators of CRE Stropers CC (in liquidation).
  • Interest on R107 553.75 tempore morae from 25 September 2020 to date of payment.