Lynn NO and Another v Coreejes and Another (687/10) [2011] ZASCA 159; 2011 (6) SA 507 (SCA); [2012] 1 All SA 620 (SCA) (28 September 2011)

Lynn NO and Another v Coreejes and Another (687/10) [2011] ZASCA 159; 2011 (6) SA 507 (SCA); [2012] 1 All SA 620 (SCA) (28 September 2011)

Section 382(1) of the Companies Act 61 of 1973 does not contain a general prohibition rendering acts performed by less than all appointed liquidators a nullity. The provision requires joint action and imposes joint and several liability for acts performed jointly, but does not invalidate acts performed without full joint action. The procedural defect arising from the failure of all liquidators to authorise the institution of the action is capable of ratification, especially where the non-consenting liquidator subsequently resigns and the remaining liquidators are appointed and pursue the litigation jointly. The analogy to section 6(1) of the Trust Property Control Act is misplaced, as...

Citation
[2011] ZASCA 159
Parties
Appellant: Mark William Lynn NO; Appellant: Tintswalo Annah Nana Makhubele NO; Respondent: Colin Henry Coreejes; Respondent: Leon Loock
Court
Supreme Court of Appeal
Jurisdiction
South Africa
Judgment Date
28 September 2011
Case Number
687/10
Procedural Posture
Civil Appeal / Appeal From North Gauteng High Court, Pretoria
Outcome
Appeal upheld; application to strike out the claim dismissed with costs, including costs of two counsel.
Judges
Lewis, Snyders, Malan, Majiedt, Seriti
Legal Topics
Liquidator Joint Action, Companies Act Section 382, Ratification of Procedural Acts, Point in Limine, Authority of Attorneys
Commercial and Corporate Civil Procedure Liquidator Joint Action Companies Act Section 382 Ratification of Procedural Acts Point in Limine Authority of Attorneys

Case Brief

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Parties

Mark William Lynn NO

Appellant

Tintswalo Annah Nana Makhubele NO

Appellant

Colin Henry Coreejes

Respondent

Leon Loock

Respondent

Procedural Posture

Civil Appeal / Appeal From North Gauteng High Court, Pretoria

Legal Issues

  1. 1 Does non-compliance with section 382(1) of the Companies Act 61 of 1973 render the power of attorney given by two of three liquidators for the institution of an action a nullity?
  2. 2 Is such procedural non-compliance capable of ratification in law?

Ratio Decidendi

Section 382(1) of the Companies Act 61 of 1973 does not contain a general prohibition rendering acts performed by less than all appointed liquidators a nullity. The provision requires joint action and imposes joint and several liability for acts performed jointly, but does not invalidate acts performed without full joint action. The procedural defect arising from the failure of all liquidators to authorise the institution of the action is capable of ratification, especially where the non-consenting liquidator subsequently resigns and the remaining liquidators are appointed and pursue the litigation jointly. The analogy to section 6(1) of the Trust Property Control Act is misplaced, as...

Court Disposition

Appeal upheld; application to strike out the claim dismissed with costs, including costs of two counsel.

Orders

  • The appeal is upheld with costs, including the costs of two counsel.
  • The order of the court below is set aside and substituted with the following order: 'The application is dismissed with costs.'