Gore N.O and Another v Van Wyk Van Heerden Attorneys Incorporated (17897/2019) [2021] ZAWCHC 95; [2022] 2 All SA 178 (WCC) (10 May 2021)

Gore N.O and Another v Van Wyk Van Heerden Attorneys Incorporated (17897/2019) [2021] ZAWCHC 95; [2022] 2 All SA 178 (WCC) (10 May 2021)

The application for leave to appeal was refused because the respondent failed to demonstrate reasonable prospects of success or any compelling reason for the appeal to be heard. The court found that the payments made by Brandstock Exchange (Pty) Ltd to the respondent's trust account were dispositions without value as contemplated by section 26(1) of the Insolvency Act and section 340 of the Companies Act. The respondent benefitted from the payments, as it had control and disposal over the funds, fulfilling the 'benefit' requirement. The court dismissed the respondent's arguments regarding the application to strike out and the relevance of the Iprolog case, finding that the facts were...

Citation
[2021] ZAWCHC 95
Parties
Applicant: Stephen Malcolm Gore N.O; Applicant: Selby Musawenkosi Ntsibande; Respondent: Van Wyk Van Heerden Attorneys Incorporated
Court
Western Cape High Court, Cape Town
Jurisdiction
South Africa
Judgment Date
10 May 2021
Case Number
17897/2019
Procedural Posture
Leave to Appeal / Application for Leave to Appeal to the Supreme Court of Appeal
Outcome
Leave to appeal is refused.
Judges
Magona
Legal Topics
Insolvency Act Section 26, Companies Act Section 340, Dispositions Without Value, Attorneys Trust Accounts, Leave to Appeal, Mora Interest
Civil Procedure Commercial and Corporate Insolvency Act Section 26 Companies Act Section 340 Dispositions Without Value Attorneys Trust Accounts Leave to Appeal Mora Interest

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Parties

Stephen Malcolm Gore N.O

Applicant

Selby Musawenkosi Ntsibande

Applicant

Van Wyk Van Heerden Attorneys Incorporated

Respondent

Procedural Posture

Leave to Appeal / Application for Leave to Appeal to the Supreme Court of Appeal

Legal Issues

  1. 1 Whether the payments made by Brandstock Exchange (Pty) Ltd to the respondent were dispositions without value under section 26(1) of the Insolvency Act and section 340 of the Companies Act.
  2. 2 Whether the respondent benefitted from the impugned payments for the purpose of section 26(1)(b) of the Insolvency Act.
  3. 3 Whether the application for leave to appeal meets the threshold of reasonable prospects of success or presents compelling reasons under section 17 of the Superior Courts Act.

Ratio Decidendi

The application for leave to appeal was refused because the respondent failed to demonstrate reasonable prospects of success or any compelling reason for the appeal to be heard. The court found that the payments made by Brandstock Exchange (Pty) Ltd to the respondent's trust account were dispositions without value as contemplated by section 26(1) of the Insolvency Act and section 340 of the Companies Act. The respondent benefitted from the payments, as it had control and disposal over the funds, fulfilling the 'benefit' requirement. The court dismissed the respondent's arguments regarding the application to strike out and the relevance of the Iprolog case, finding that the facts were...

Court Disposition

Leave to appeal is refused.

Orders

  • The application for leave to appeal is dismissed with costs.