Klopper NO and Others v Anthillsap (Pty) Ltd (13375/06) [2006] ZAGPHC 71 (1 August 2006)

Klopper NO and Others v Anthillsap (Pty) Ltd (13375/06) [2006] ZAGPHC 71 (1 August 2006)

The court found that although the funds were attached by the Sheriff prior to the winding-up, the payment to the respondent occurred after the effective date of winding-up. In terms of section 359(1)(a) of the Companies Act, any attachment or execution put in force after the commencement of winding-up is void. The court distinguished between attachment and payment, holding that the respondent was not entitled to retain the funds paid over after the winding-up order. The applicants, as liquidators, were therefore entitled to reclaim the amounts from the respondent.

Citation
[2006] ZAGPHC 71
Parties
Applicant: Johannes Frederik Klopper N.O.; Applicant: Lisl Anna Laubscher N.O.; Applicant: Maria Petronella Yssel N.O.; Respondent: Anthillsap (Pty) Ltd
Court
High Courts - Gauteng
Jurisdiction
South Africa
Judgment Date
1 August 2006
Case Number
13375/06
Procedural Posture
Civil Application / First Instance
Outcome
Application granted in favour of the applicants; respondent ordered to pay specified sums and costs.
Judges
Ismail
Legal Topics
Winding Up of Company, Attachment and Execution, Liquidator Powers, Companies Act Interpretation
Civil Procedure Commercial and Corporate Winding Up of Company Attachment and Execution Liquidator Powers Companies Act Interpretation

Case Brief

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Parties

Johannes Frederik Klopper N.O.

Applicant

Lisl Anna Laubscher N.O.

Applicant

Maria Petronella Yssel N.O.

Applicant

Anthillsap (Pty) Ltd

Respondent

Procedural Posture

Civil Application / First Instance

Legal Issues

  1. 1 Whether the attachment and payment of funds to the respondent after the effective date of winding-up is void under section 359(1)(a) of the Companies Act.
  2. 2 Whether the respondent is entitled to retain funds paid over by the Sheriff after the winding-up order.
  3. 3 Whether section 359(1)(b) applies to the facts, given the timing of attachment and payment.

Ratio Decidendi

The court found that although the funds were attached by the Sheriff prior to the winding-up, the payment to the respondent occurred after the effective date of winding-up. In terms of section 359(1)(a) of the Companies Act, any attachment or execution put in force after the commencement of winding-up is void. The court distinguished between attachment and payment, holding that the respondent was not entitled to retain the funds paid over after the winding-up order. The applicants, as liquidators, were therefore entitled to reclaim the amounts from the respondent.

Court Disposition

Application granted in favour of the applicants; respondent ordered to pay specified sums and costs.

Orders

  • The respondent is ordered to pay to the applicants, in their capacities as liquidators of Tomoso Technologies (Pty) Ltd (in liquidation), the sums of R3,038.02 and R132,170.01.
  • The respondent is ordered to pay interest on each of these amounts at a rate of 15.5% per annum a tempore morae to date of payment.