Mayo NO v De Montlehu (20504/2014) [2015] ZASCA 127; 2016 (1) SA 36 (SCA) (23 September 2015)

Mayo NO v De Montlehu (20504/2014) [2015] ZASCA 127; 2016 (1) SA 36 (SCA) (23 September 2015)

The Supreme Court of Appeal held that section 366(2) of the Companies Act 61 of 1973 does not override the three-month time period and cost requirements stipulated in section 44(1) of the Insolvency Act 24 of 1936. The court found that the strict interpretation of 'mutatis mutandis' requires that the necessary changes must be required, not merely permitted, and that the time period for proving claims and the associated cost requirements apply equally to company liquidations as to sequestrations. Section 366(2) relates only to participation in a distribution under a particular account and does not affect the general time period for proving claims. The Master must fix costs for late claims...

Citation
[2015] ZASCA 127
Parties
Appellant: Henry Mayo NO; Appellant: Sumaya Abdool Gafaar Kahamissa NO; Appellant: Matome Stanley Mphahlele NO; Appellant: Chevreau Construction (Pty) Ltd; Appellant: Starspan Investments (Pty) Ltd; Respondent: Alain Rivalz Chevreau De Montlehu
Court
Supreme Court of Appeal
Jurisdiction
South Africa
Judgment Date
23 September 2015
Case Number
20504/2014
Procedural Posture
Civil Appeal / Appeal From Gauteng Local Division, Johannesburg
Outcome
Appeal dismissed with costs, including costs of two counsel.
Judges
Bosielo, Leach, Majiedt, Willis, Zondi
Legal Topics
Companies Act 1973, Insolvency Act 1936, Proof of Claims, Late Claims, Liquidation Procedure
Commercial and Corporate Civil Procedure Companies Act 1973 Insolvency Act 1936 Proof of Claims Late Claims Liquidation Procedure

Case Brief

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Parties

Henry Mayo NO

Appellant

Sumaya Abdool Gafaar Kahamissa NO

Appellant

Matome Stanley Mphahlele NO

Appellant

Chevreau Construction (Pty) Ltd

Appellant

Starspan Investments (Pty) Ltd

Appellant

Alain Rivalz Chevreau De Montlehu

Respondent

Procedural Posture

Civil Appeal / Appeal From Gauteng Local Division, Johannesburg

Legal Issues

  1. 1 Does the three-month time period in section 44(1) of the Insolvency Act 24 of 1936 apply to companies in liquidation under section 366(2) of the Companies Act 61 of 1973.
  2. 2 Is the Master required to fix costs and require payment for late claims proved against a company in liquidation.
  3. 3 Does section 366(2) of the Companies Act override the time period and cost requirements in section 44(1) of the Insolvency Act.

Ratio Decidendi

The Supreme Court of Appeal held that section 366(2) of the Companies Act 61 of 1973 does not override the three-month time period and cost requirements stipulated in section 44(1) of the Insolvency Act 24 of 1936. The court found that the strict interpretation of 'mutatis mutandis' requires that the necessary changes must be required, not merely permitted, and that the time period for proving claims and the associated cost requirements apply equally to company liquidations as to sequestrations. Section 366(2) relates only to participation in a distribution under a particular account and does not affect the general time period for proving claims. The Master must fix costs for late claims...

Court Disposition

Appeal dismissed with costs, including costs of two counsel.

Orders

  • The appeal is dismissed with costs, including the costs of two counsel.