Luckytso Transport and Construction CC and Another v Absa Bank Limited and Others (15438/2014) [2015] ZAGPPHC 29 (30 January 2015)

Luckytso Transport and Construction CC and Another v Absa Bank Limited and Others (15438/2014) [2015] ZAGPPHC 29 (30 January 2015)

The court found that upon deregistration of the first applicant, its assets became bona vacantia and vested in the State. Consequently, the sale in execution conducted after deregistration was invalid, as the first respondent's right to execute was unenforceable at that stage. The second applicant, as sole member and interested person, had locus standi to bring the application for reinstatement. The court exercised its discretion to order reinstatement of the first applicant and set aside the sale in execution. The opposition was not frivolous, and costs were awarded on a party and party scale.

Citation
[2015] ZAGPPHC 29
Parties
Applicant: Luckytso Transport and Construction CC; Applicant: Luckytso Kgomotso Mokwena; Respondent: Absa Bank Limited; Respondent: ZKN Investment CC; Respondent: Sheriff Pretoria East; Respondent: Deeds Office Pretoria; Respondent: The Department of Finance; Respondent: The Companies and Intellectual Property Commission
Court
North Gauteng High Court, Pretoria
Jurisdiction
South Africa
Judgment Date
30 January 2015
Case Number
15438/2014
Procedural Posture
Review Application / Judgment
Outcome
Application granted: the first applicant is to be reinstated and the sale in execution set aside.
Judges
N.M. Mavundla
Legal Topics
Company Deregistration, Bona Vacantia, Sale in Execution, Reinstatement of Company, Locus Standi
Commercial and Corporate Land and Property Company Deregistration Bona Vacantia Sale in Execution Reinstatement of Company Locus Standi

Case Brief

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Parties

Luckytso Transport and Construction CC

Applicant

Luckytso Kgomotso Mokwena

Applicant

Absa Bank Limited

Respondent

ZKN Investment CC

Respondent

Sheriff Pretoria East

Respondent

Deeds Office Pretoria

Respondent

The Department of Finance

Respondent

The Companies and Intellectual Property Commission

Respondent

Procedural Posture

Review Application / Judgment

Legal Issues

  1. 1 Whether the court has the power to order reinstatement of a deregistered close corporation under the Companies Act 71 of 2008.
  2. 2 Whether the sale in execution of the property after deregistration was valid.
  3. 3 Whether the second applicant has locus standi to bring the application for reinstatement and to challenge the sale in execution.

Ratio Decidendi

The court found that upon deregistration of the first applicant, its assets became bona vacantia and vested in the State. Consequently, the sale in execution conducted after deregistration was invalid, as the first respondent's right to execute was unenforceable at that stage. The second applicant, as sole member and interested person, had locus standi to bring the application for reinstatement. The court exercised its discretion to order reinstatement of the first applicant and set aside the sale in execution. The opposition was not frivolous, and costs were awarded on a party and party scale.

Court Disposition

Application granted: the first applicant is to be reinstated and the sale in execution set aside.

Orders

  • The sixth respondent is directed to reinstate the first applicant.
  • The sale in execution conducted on 29 January 2014 by the third respondent is declared invalid and set aside.