Mabaso and Others v Barnard NO and Others (6962/2011, 15956/2012) [2012] ZAGPPHC 187 (31 August 2012)

Mabaso and Others v Barnard NO and Others (6962/2011, 15956/2012) [2012] ZAGPPHC 187 (31 August 2012)

The court found that the employees' claims for payment of severance and leave pay are preferent claims, but such claims are premature as payment cannot be made before the final liquidation and distribution account is approved by the Master. The liquidators have complied with their statutory duties, and there is currently no free residue available for payment of the employees' claims. The remedy for the employees is to object to the liquidation and distribution account once filed, or to seek relief from the court if the liquidators fail to file the account. The application for freezing the liquidators' banking accounts was also dismissed as the employees are not entitled to payment at this...

Citation
[2012] ZAGPPHC 187
Parties
Applicant: Thomas Mbonakulu Mabaso & 236 Others; Respondent: Barnard, Hendrik Jacobus Rust N.O. & 9 Others
Court
North Gauteng High Court, Pretoria
Jurisdiction
South Africa
Judgment Date
31 August 2012
Case Number
6962/2011,15956/2012
Procedural Posture
Civil Application / Final Judgment on Main and Interlocutory Applications
Outcome
The main application by the employees is dismissed with costs. The rule nisi freezing the liquidators' banking accounts is discharged and the application is dismissed with costs. The variation/rescission application by the liquidators is granted as per prayers 2.1 and 2.2 of the notice of motion. Costs orders...
Judges
J.W Louw
Legal Topics
Liquidation and Distribution Account, Preferent Creditors, Employee Claims in Liquidation, Free Residue, Condonation of Late Affidavits
Civil Procedure Commercial and Corporate Liquidation and Distribution Account Preferent Creditors Employee Claims in Liquidation Free Residue Condonation of Late Affidavits

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Parties

Thomas Mbonakulu Mabaso & 236 Others

Applicant

Barnard, Hendrik Jacobus Rust N.O. & 9 Others

Respondent

Procedural Posture

Civil Application / Final Judgment on Main and Interlocutory Applications

Legal Issues

  1. 1 Are the employees entitled to payment of their preferent claims from the insolvent estate before approval of the final liquidation and distribution account?
  2. 2 Should the affidavits filed late by certain applicants be allowed?
  3. 3 Are the employees entitled to an order freezing the liquidators' banking accounts?

Ratio Decidendi

The court found that the employees' claims for payment of severance and leave pay are preferent claims, but such claims are premature as payment cannot be made before the final liquidation and distribution account is approved by the Master. The liquidators have complied with their statutory duties, and there is currently no free residue available for payment of the employees' claims. The remedy for the employees is to object to the liquidation and distribution account once filed, or to seek relief from the court if the liquidators fail to file the account. The application for freezing the liquidators' banking accounts was also dismissed as the employees are not entitled to payment at this...

Court Disposition

The main application by the employees is dismissed with costs. The rule nisi freezing the liquidators' banking accounts is discharged and the application is dismissed with costs. The variation/rescission application by the liquidators is granted as per prayers 2.1 and 2.2 of the notice of motion. Costs orders...

Orders

  • In the first to ninth respondents' application (the variation/rescission application) in case no. 6962/2011, an order is granted in terms of prayers 2.1 and 2.2 of the notice of motion.
  • The applicants' application in case no. 6962/2011 (the main application) is dismissed with costs.